Jackson, ex dem. Bowen v. Burton , 1 Wend. 341 ( 1828 )

By the Court,

Sutherland, J.

The defendant, on the 24th January, 1801, conveyed the premises in question by a warrantee deed, to Benjamin Bowen. By that conveyance, all the right and title which the defendant then had in the premises, passed to his grantee; and even any title subsequently acquired, would have enured to his benefit. Although the defendant remained in possession after the conveyance, it was not as owner, but as tenant to his grantee, and nothing but a clear unequivocal and notorious disclaimer of the title of his landlord, could render his possession, however long continued, adverse. So far from there having been any such disclaimer, until about the time of the commencement of this suit, it appears affirmatively in the case, that the premises have, ever since the conveyance, been known in the neighborhood, as “ Bowen’s mill seal;” that they have been uniformly assessed as the properly of Bowen, and the assessor who testified to these facts, was strongly of opinion, that the defendant in giving in a list of bis property, had excepted the premises in question, and said the)' must be assessed to Bowen. There is not the slightest pretence, therefore, of an adverse possession. All the right, title and interest of Benjamin Bowen to and in the premises in question, was transferred to the lessors of the plaintiff by the sheriff’s deed of May 24th, 1817. The judgment and execution in pursuance of which the sale took place and the deed was given, were regularly proved ; and the only remaining question is, whether, under the circumstances of the case, the defendant was entitled to notice to quit 1 The case of Jackson, ex dem. Phillips, v. Aldrich, (13 Johns. R. 106,) appears to 'be decisive against the defendant upon this point. There the defendant, Aldrich, had, in May, 1602, conveyed the premises to Harry Garrison, and Garrison, in 1812, conveyed them to the lessor Phillips, Aldrich, the defendant, having the whole time remained in possession. It was held, that even as between Garrison and the defendant, the relation of landlord and tenant did not exist, so as to entitle him to notice to quit, and that he was, at most, but a tenant at will; and that relationship was determined by the conveyance from Garrison to the lessor. The cases are entirely analogous. The case at, bar, however, is strengthened by the fact, that the premises in question are composed almost entirely of the steep and precipitous bank of a creek or stream of water; that they are strictly a mill-site, and of little or no value for any other purpose. As they were worth nothing, therefore, to the defendant, it is not to be presumed that there was any agreement or contract on his part to pay for the use of them. The fact undoubtedly is, that they were left unimproved until the circumstances of the adjacent country should render the erection of a mill expedient, being incapable of being occupied or improved in any other manner.

The cases are all collected and considered in Jackson v. Aldrich.

Judgment for plaintiff.