John Willard.

A treatise on the law of real estate, and of the mode of alienation thereof; with an appendix of forms of conveyancing, and notes: adapted to the law of the state of New York online

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Online LibraryJohn WillardA treatise on the law of real estate, and of the mode of alienation thereof; with an appendix of forms of conveyancing, and notes: adapted to the law of the state of New York → online text (page 35 of 71)
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QR-code for this ebook, 19 Wend. 365. Gayetta B. Bethune, 14 3Iass. Rep. 49.)

The third ingredient is that the prescription must be certain and
reasonable. It must be open, peaceable, continued, and unequivo-
cal, and be adverse, that is, of a nature to indicate that it is claimed
as a right, and not the effect of mere indulgence. (Id.)

As a prescription must have a peaceable and uninterrupted en-
jo}Tnent, it may be lost by neglecting to claim or exercise it.
Abandonment is a simple non-user, and to operate as an extin-
guishment, it must have been continuous for twenty years. {Corn-
ing V. Gould, 16 Wend. 531.) It must have totally ceased for the
same length of time that was necessary to create the original pre-

A temporary relinquishment of the right, if accompanied with
an intention to resume it within a reasonable time ; and when there
are no circumstances intimating the suspension to be temporary
only, a bona fide purchaser will be protected in the enjoyment of
the property as it appeared at the time of the purchase. {Id.)


2. Title by adverse enjoyment is the second kind of prescription,
and owes its origin to the statute of limitations. It differs from a
prescription in this, that by a prescription of twenty years umn-
terrupted adverse enjoyment, a right to an incorporeal hereditament
is acquired, or a grant thereof conclusively presumed; whereas in
this second sort of prescription no positive right is acquired, but.
only the remedy of the former possessor in taken away, for the re-
covery of a corporeal or incorporeal hereditament. For this reason
it has sometimes been called a negative prescription. It is more
generally applicable to corporeal than to incorporeal hereditaments.

Though the statute of limitations does not profess to take an es-
tate from one man and give it to another, it extinguishes the claim
of the former owner, and quiets the possession of the actual occu-
pant who proves that he has occupied the premises under a color
of title peaceably and quietly for the period prescribed by the law.
It is therefore truly spoken of as a source of title; and is in truth
as valid and effectual as a grant from the sovereign power of the

The statute of limitations in this state, with reference to real
property, was revised in 1801, and again in 1830, and subsequently
at the adoption of the code of procedure. (1 B. L. 181. 2 R. S.
292. Code of Procedure, § 75 et seq.) The act of 1801 provided
that the people of this state would not sue any person for, or in re-
spect to, any real property, or the issues or jjrofits thereof, by rea-
son of the right or title of the people to the same, unless such right
or title should have accrued within forty years before any action or
other proceeding for the same should be commenced, or unless the
people, or those from whom they claim, should have received the
rents and profits of such real estate, or of some part thereof, within
the space of forty years. At the revision in 1830, this limitation
was reduced to twenty years, and so continued till 1848, when at
the adoption of the code of procedure it was restored to forty years,
where it has ever since remained. As against the people, the de-
fendant must show title in himself, or a continued possession of
forty years, (The People v. Van Rensselaer, 8 Barb. 189.)

The limitation for a wi'it of right, by the law of 1801, was twen-
ty-five years. This was reduced to twenty years by the revised
statutes of 1830, and has been so continued in the code. The writ
of right was indeed abolished, but the limitation of twenty years
was applied to the substituted remedy.


The existing law is that which is provided by the code; which
has also adopted, from the decisions of the courts, the principles
which govern in cases of adverse possession. {Code, § 78, &c.)

It provides that no action for the recovery of real property, or for
the recovery of the possession thereof, shall be maintained, unless
it appear that the plaintiff or his ancestor, predecessor or grantor,
was seised or possessed of the premises in question within twenty
years before the commencement of such action. This provision
covers what was formerly a writ of right, as well as the various pos-
sessory actions, which in this state were formerly embraced in the
action of ejectment. They are now all placed upon the same footing.

The same principle is extended as well to the action or its de-
fense, when founded upon the title to real property, or to rents or
services out of the same; and neither is effectual unless it appears
in the one case that the persons prosecuting the action, and in the
other the party making the defense, or under whose title the action
is prosecuted or defended, or the ancestor, predecessor or grantor
of such person, was seised or possessed of the premises in question,
within twenty years before the commencement of the act in respect
to which such action is prosecuted or defense made. {Code, § 79.)

The statute has wisely given a legislative definition of the effect
of an entry, by declaring that it shall not be deemed sufficient, or
valid as a claim, unless an action be commenced thereupon within
one year after the making of such entry, and within twenty years
from the time when the right to make such entry descended or

The person establishing a legal title to the premises is, in every
action for the recovery thereof, presumed to have been possessed
thereof within the time required by law; and the occupation of
such premises by any other person shall be deemed to have been
under and in subordination to the legal title, unless it appears that
such premises have been held and possessed adversely to such legal
title for twenty years before the commencement of such action.
{Id. § 81.)

The foregoing provision of the code was borrowed from the revised
statutes of 1830, and was supposed to express the result of the
multifarious decisions of the courts, as to the presumption that ev-
ery possession was under the legal title. {Jackson v. Sharp, 9
John. 163. Wickham v. Conklin, 8 id. 228. Jackson v. Thomas^
16 id. 293.)


The doctrine with respect to adverse possession had become pretty
well settled as early as 1830, when the revised statutes took effect.
Some of the rules on the subject were supposed to be subtle and
refined; but having been long the subject of judicial exposition, it
was supposed by the legislature that they could be stated with pre-
cision and clearness; and it was therefore proposed, in the recom-
mendation of the re\dsers, that they should be fixed by legislative
enactment. The object was, 1. To make the statute of limitations
better understood; 2. To give to the rules a permanent character,
and rescue them from the fluctuations of opinions; and 3. That
the community at large might have the means of knowing the most
imj^ortant laws respecting the enjoyment of their property. {See
Revisers' notes on the subject, 3 R. S. 699, 2c? ed.)

The statute was made so as to embrace two of the most impor-
tant classes of cases, viz : 1st. Where the entry into the possession
of the premises was under a claim of title, exclusive of any other
•right, founded upon a written instrument, as, being a conveyance
of the premises in question, or upon the decree or judgment of a
competent court; and 2d. Where there has been an actual contin-
ued occupation of premises under a claim of title, exclusive of any
other right, but not founded upon a wi'itten instrument or a judg-
ment or decree.

The legislature intended to fix the rules with respect to these
two classes of cases by permanent enactment, and therefore adopted
substantially the expositions given to the subject by the courts.
And the same sections were retained by the code of procedure, un-
altered, and are still the law of this state. They obviously super-
sede the necessity of introducing, in this place, the adjudged cases
upon which they are founded.

With respect to the first class of cases, to wit, where the entry
was under a written instrument, as being a conveyance of the prem-
ises in question, or upon the judgment or decree of a competent
court, the enactment is, that where there has been a continued oc-
cupation and possession of the premises included in such instru-
ment, decree or judgment, or of some part of such premises, under
such claim, for twenty years, the premises so included shall be
deemed to have been held adversely; except that where the premises
so included consist of a tract divided into lots, the possession of
one lot shall not be deemed a possession of any other lot of the
same tract. (2 B. S. 294, § 9. Code of Procedure, § 82.)

Will.— 23


This provision was intended to exclude the doctrine of a con-
structive adverse possession as applicable to large tracts of land.
That doctrine is admissible only when it is applied to a lot or farm;
in which latter case the improvement of a part of a lot or farm wiU
give a valid constructive possession of the residue, although not
improved. But it is essential to support such constructive posses-
sion, that the deed or writing should include within its boundaries,
the land not occupied and improved. (Jackson v. Camp, 1 Coiv-
en, 605. Jackson v. Woodruff, Id. 286. Same v. Michards, 6 id.
617. Sharp v, Brandow, 15 Wend. 597.)

The foregoing section does not define what shall be deemed to
have been such a possession or occupation of land, as to constitute
an adverse possession, by a person claiming a title founded upon a
written instrument, or a judgment or decree. To supply that de-
ficiency the statute declared what was necessary to constitute such
occupancy or possession; and it was declared to be 1, where the
land so claimed has been usually cultivated or improved; 2, where
it has been protected by a substantial inclosure ; 3, where, although
not inclosed, it has been used for the supply of fuel or fencing tim-
ber, for the purposes of husbandry, or the ordinary use of the oc-
cupant; 4, where a known farm or a single lot has been partly im-
proved, the portion of such farm or lot that may have been left not
cleared, or not inclosed, according to the usual course and custom
of the adjoining country, shall be deemed to have been occupied
for the same length of time as the part improved and cultivated.
(2 B. S. 294, § 10. Code, § 83.)

The laws should be made with reference to the actual condition
of the society upon which they are to operate. This is not the
same in every part of the state. In some counties lands have not
been reclaimed from their primeval forests. In others, farms will
be found in every stage of improvement; some just emerging from
a wild state, and others already reduced to cultivation. The stat-
ute is broad enough for every case; and yet there will often be oc-
casions for the exercise of a wise discretion in courts and juries in
the application of the rules.

With respect to the second class of cases, namely, an occupation
or possession of lands under a claim of title not written, or hj judg-
ment or decree, a like policy was pursued by the legislature of con-
forming the written law to the approved judicial decisions. The
supreme court, as early as 1812, had decided in Smith v. Burtisj


(9 Jolin. 180) tliat a possesion for ever so long a time, stripped of
the circumstances that it was accompanied with the claim of the
entire title, would not amount to an adverse possession, barring
those who had the real and legitimate title. It was not required
that there should be a rightful title. The fact of the possession,
and the quo animo^ it was commenced or continued, were the only-

To carry out these views, the statute expressly enacted that
where it shall appear that there has been an actual continuous oc-
cupation of any premises under a claim of title, exclusive of any
other right, but not founded upon any written instrument, or any
judgment or decree, the premises so actually occupied, and no oth-
er, shall be deemed to be held adversely. (2 R. 8. 294, § 11.
Code, § 84.)

The actual occupancy is thus made the criterion, when the right
is not founded upon a wi'itten instrument, or judgment, or decree.
What shall constitute such occupancy as to amount to an adverse
possession, is there declared to be 1, where the land has been pro-
tected by a substantial inclosure; and 2, where it has been usually
cultivated or improved. (2 R. 8. 294, § 12. Code, § 85.) This is only
the adoption of the principle which had long been held by the
courts, that a mere possession fence, as it is called, made by felling
trees and lapping them upon one another, is too loose and equivo-
cal, to take away the right of entry from the rightful owner. There
must, say the court, be a real and substantial inclosure, an actual
occupancy, a possessio pedis, which is definite, positive and noto-
rious, when that is the only defense interposed to countervail a le-
gal right. (Jackson v. 8choonmaJcer, 2 John. 230.) But the in-
closure may be in part natural, as a continued ledge of rocks, a
mountain or a navigable river. (Jackson v. Halstead, 5 Coioen,
216.) If there is no written title, judgment or decree, but the de-
fendant relies solely on possession, vni\\ an assertion of title, he
can retain so much only as he had under actual improvement, and
within a substantial inclosure. (Jaclcson v. Warford, 7 Wen-
dell, 62.)

The effect of the statute of limitations when applied to civil ac-
tions, is to mature a wrong into a right, by cutting off the remedy.
(Per Coioen, J. in Humbert v. Trinity Church, 24 Wend. 604.)
To warrant its application in ejectment, the books require color of
title, by deed or other documental semblance of right in the defend-


ant, only when the defense is founded on a constructive adverse
20ossession. But neither a deed nor any equivalent muniment is
necessary where the possession is indicated by actual occiq^ation,
and any other evidence of an adverse claim exists. An oral claim
of exclusive title, or any other circumstances by which the absolute
owner of land is distinguished from the naked possessor, are equally
admissible, and may be equally satisfactory. {Id.)

If on the trial the defendant shows that he took possession claim-
ing under a deed, he is not bound to produce the deed, though
called for by the plaintiff, but may rely on his adverse possession.
(Jackson v. Wheat, 18 John. 40. Same v. Neivton, Id. 355. Brad-
street V. Clarice, 12 Wend. 674.) It is not necessary that there
should be a rightful title. All that is necessary is that it should be
a possession taken and held in good faith, under claim and color of
title, and exclusive of any other right. The defense of adverse pos-
session assumes that the defendant has not a valid legal paper title;
if he had, he need not rely upon the length of his possession. The
fact of the possession and the quo animo it was commenced and
continued, are the only tests. He need not even produce the deed
under which he claims ; and if, when produced, it is defective as a,
deed, as for want of a seal or otherwise, it will not destroy the effect
of the defendant's possession. (Bradstreet v. Clarke, supra.')

The title claimed must be such an one as the law will prima
facie consider a good title. {Jackson v. Frost, 1 Cowen, 346.) If
it is subser\aent to and admits the existence of another and a higher
title, the possession is not adverse to that title, the possessor must
claim the entire title. {Jackson v. Johnson, 5 Coiven, 74.) On the
foregoing principles, a quit-claim deed given by a mere squatter,
without color of title, in consideration of a discontinuance of an
ejectment against him, does not change the character of the pos-
session. {Jackson v. Hill, 5 Wend. 532.)

But adverse possession cannot be founded on an absolutely void
conveyance; as for example, a deed given pending a suit concern-
ing the land, which is void for champerty. {Jackson v. Andreivs,
7 Wend. 152.) Nor upon a deed founded in fraud; nor upon a
deed executed by another without authority, to the knowledge of
the grantee. {Livingston v. The Peru Iron Co. 9 Wend. 511.)

From the nature of the estate of tenants in common and joint
tenants, each has a right to the possession; and therefore the pos-
session of one will not be treated as adverse to his companions, uu-


less there has been an ouster. If one tenant in common actually
excludes his co-tenants it is an ouster, and his possession then be-
comes adverse. (Eumhert v. Trinitij Cliurch, 24 Wend. 587. So
the grantee of one tenant in common of the whole premises, who
enters under the grant and claims title to the whole, holds adverse-
ly to the other tenants in common. {Cla2n'> v. Bramagham, 9 Goiv-
en, 530. Town v. Needham, 3 Paige, 545.) So if one tenant in
common claims possession of the whole, under a warranty deed
from a stranger, it is a sufficient ouster. {Siglar v. Van Riper, 10

Wend. 414.)

A party holding adversely may, by a recognition of the rightful
title, lose the benefit of his adverse holding. If while in possession
he offers to purchase the title of the claimant, it is a circumstance
which, unexplained, will authorize the presumptioU that he came
into possession under such title. (Jackson v. Cray, 12 John. 427.
Jackson v. Britton, 4 Wend. 507.)

But this rule does not prevent a person in possession from quiet-
ing his title, by taking a quit-claim or any other deed from a stran-
ger, who interposes any claim to the land. {Northrop v. Wright,

7 Hill, 476.)

The relation of landlord and tenant gave occasion for some con-
flict of opinion with respect to the right of the latter to set up an
adverse possession against the former. It was held at an early day
that a person who entered into possession under another, and ac-
knowledged his title, could not set up an outstanding title in a
third person. (Jackson v. Stewart, 6 John. 34. Same v. De Walts,
7 id. 157.) Nor, after recognizing the lessor as his landlord, could
he afterwards dispute his title. (Jackson v. Voshurgh, 7 id. 186.
Same v. Reynolds, 1 Caines, 444. Same v. Whitford, 2 id. 215.)
Indeed, the doctrine was carried out to that extent, that when the
relation of landlord and tenant was once established, it attached to
all who might succeed to the possession, through or under the ten-
ant, either immediately or remotely; and this, though the purchaser
from the lessee took an absolute grant, not knowing of the tenancy.
(Jackson v. Harsen, 7 Coiven, 323. Same v. Scissam, 3 John.
499. Jackson v. Davis, 5 Coioen, 123.) It was justly thought by
the legislature that there should be some limitation on the forbear-
ance of the landlord, and that some reasonable period should be
fixed beyond which, if he forbore to assert his right, the possession
of the occupant might be deemed adverse. This was accordingly


done by enacting that whenever the relation of landlord and tenant
should exist between any persons, the possession of the tenant
should be deemed the possession of the landlord, until the expira-
tion of twenty years from the termination of the tenancy; or where .
there has been no wi'itten lease, until the expiration of twenty years
from the time of the last payment of rent; notwithstanding that
such tenant may have acquired another title, or may have claimed
to hold adversely to his landlord. But such presumptions are not
to be made after those limited periods, (2 R, S. 294, § 13. Code,
§ 86.) This provision abrogates a technical rule, in favor of an ac-
tual possession, in good faith, of twenty years.

It was a principle of the common law that where a man was seised
hj any means whatsoever of the inheritance of a corporeal heredit-
ament and died,, whereby the same descended to his heirs, however
feeble his right, the entry of any other person who claimed title to
the freehold was taken away, and he could not recover possession
against the heir by entry, but was driven to his action to gain a
legal seisin of the estate. (3 Bl. Com. 176.) Such was the rule
whether the seisin was by right or by wrong. {Doe v. Thompson,
5 Coiven, 371.) This rule was founded purely upon feudal reasons,
and has been abrogated by the revised statutes. (2 R. S. 295,
§ 15. Code, § 87.) The remedy of the party claiming title is the
same as in other cases where the possession is unlawfully withheld.

As the effect of the statute of limitations is to mature a wrong
into a right by cutting off the remedy, after the assertion of it has
been forborne for a specified period, it is obvious upon principles of
natural justice, that the mere delay to bring an action against the
party wi'ongfuUy in possession, should not mature into a title in
favor of the wrongdoer, if the rightful owner labored under a dis-
al)ility. What shall amount to such disability has been uniformly
expressed in our statutes on this subject. The existing statute of
this state provides that if a person entitled to commence any action
for the recovery of real property, or to make an entry, or defense
founded on the title to real property, or to rents or services out of
the same, be, at the time such title shall first descend or accrue^
either 1, within the age of twenty-one years; or, 2, insane; or,
3, imprisoned on a criminal charge, or on execution upon conviction
of a criminal offense for a term less than for life; or, 4, a married
woman, the time during which such disability shall continue shall


not be deemed any portion of the time limited for the commence-
ment of such action, or the making of such entry or defense; but
such action may be commenced, or entry or defense made, after the
period of twenty years, and within ten years after the disabiHty
shall cease, or after the death of the p-erson entitled, who shall die
under such disability; but such action shall not be commenced, or
entry or defense made, after that period. (2 R. S. 295, § 16, as
amended in 1849 and 1851. Code, § 88.) This provision was
taken from the former law, with some slight modification. (1 B. L.
185, 186.) In the former law, the proviso was in favor of a party
hnjjrisojied, without stating any particular circumstances, whereas
the present law limits the imprisonment to such as arises on a crim-
inal charge, or in execution upon conviction of a criminal offense
for a term less than for life. A party imprisoned for debt only,
is not within the exception, nor within the reason on which it is
founded. A party imprisoned for life is civilly dead, and his case
is elsewhere provided for.

There are various provisions in the statute of limitations \Ndth
respect to the commencement of actions for the recovery of debts,
demands or damages, which do not fall within the scope of this

The statute of limitations with respect to real property, does
not begin to run from the time the tenant came into possession,
but from the time of his holding adversely. (Jackso7i v. Parker,
3 John. Oh. 124.) If, therefore, a party enters without claim or
color of title, and afterwards obtains a good or colorable title, the
adverse possession will commence from that period. {Same v.
Thompson, 16 John. 293. Same v. Neivton, 18 id. 355.)

Nor does the law allow successive disabilities of different persons
taking the same estate by devise or descent from each other. (Car-
penter V. Schermerhorn, 2 Bai^b. Ch. 314.) Hence, when an ad-
verse possession begins to run in the lifetime of the ancestor, it
continues to run,, though the land descends to a person under a
disability. (Jackson v. Moore, 13 John. 513. Same v. Robins,
. 15 id. 169. Fleming v. Grisioold, 3 Hill, 85.)

These principles were well illustrated in Carpenter v. Schermer-
horn, (supra.) Though that case arose under the former statute,
the principle is applicable to the existing code, which in this respect
is the snme. It was there said, that where a female having an in-
terest in real estate, is under a disability in her lifetime, by reason


of coverture, which prevented her bringing an action of ejectment,
her heirs must bring their suit within ten years after her death.
And where one of those heirs was also a feme covert at the death of
her mother, it was held that that circumstance would not have the
effect to extend the period within which the ejectment must be

The principle of not allowing successive disabilities in different

Online LibraryJohn WillardA treatise on the law of real estate, and of the mode of alienation thereof; with an appendix of forms of conveyancing, and notes: adapted to the law of the state of New York → online text (page 35 of 71)