Smith, ex dem. Teller et al. against Burtis et al.

Smith, ex dem. Teller et al. against Burtis et al. Entry on lands, and erecting improvements thereon, amounts to a claim of title, and constitutes a disseisin. Five years possession by a disseisor and a descent cast, tolls the entry of the disseisee, and the possessory right of the plaintiff, in ejectment, is fully made out by proof of such possession and descent cast. Ejectment for lands situated in the 6th ward of the city of Mew York. The plaintiff proved that Isaac Teller, the father of the lessors of the plaintiff, entered on the premises in question between the years 1761 and 1765, and built thereon three houses, and cultivated and improved the ground extensively, and died in possession in 1775. That the eldest son of Isaac Teller, who was the heir-at-law to the father, (according to the rule of law at that time,) was kept out of possession by the British, who used the buildings on the premises as guard-houses; that this son died in 1775; that the British evacuated the city in 1783, and the premises remained vacant until 1794, when "the possession of the defendants, or those under whom they claim, commenced. The defendants’ counsel then offered to go into evidence of their title. But plaintiff’s counsel contended, that no evidence óf title, on the part of the defendants, could be received; that the right of possession only could be tried in this action; that the evidence which they had offered showed an entry by disseisin on the part of the ancestor of the lessors of the plaintiff, a possession for five years by the disseisor, and a descent cast, which tolled the entry of the defendants, (supposing the title to be in them,) and put them to their right: 3 Cruise’s Digest, 369; 1 Salk. 685; Runn. Eject. 46, 49, 147, 291; 3 Com. 176; Holt, 264; 1 Ld. Raym. 741; Woodfall’s Tenant’s Law, 381; 3 Johnson, 388. Defendants’ counsel contended, that the plaintiff’s evidence would have formed a good defence for him, had he been' in possession, and a possessory action brought against him, but did not form a sufficient title to support an ejectment ; that the principle of law, as urged by the plaintiff, was inapplicable, because the plaintiff’s ancestor had committed no technical disseisin; that, to constitute a disseisin, there must be an entry under a claim of title, and the entry of the ancestor in this case was not of that description. And further, that if this was such a descent as would toll an entry, it gave the plaintiff’s lessors a mere prima facie title, which could be overthrown by showing one that was paramount. [MAJORITY — Spencer, J.] Spencer, J. The improvements, made by the ancestor, are sufficient to evince a claim of title, and constitute his entry a disseisin. The descent, subsequently cast, places this cause exactly in the same situation as it would have been, had the lessors oí the plaintiff been in quiet possession for twenty years. The defendants must be considered as holding tortiously; the right of possession is in the lessors of the plaintiff. The defendants must resort to a r action, if they have title. It cannot be set up in this. suit. Verdict for plaintiff. I Hoffman, JEmmei| and Golden, for plaintiff. Radeliff and Ogden, for defendants. This case was very ably argued at bar, and the doctrine of disseisin learnedly discussed. A new trial was, however, granted; the court being of opinion that if the lessors of the plaintiff would put themselves on the ungracious right of a descent oast, they were bound to prove affimatively, a tortious seisin; that a peaceable entry on land, apparently vacant, furnished per se no presumption of wrong. That the court would infer title from the lessors of plaintiff’s ten years possession, sufficient to put the tenant on his defence, but that they ought not to infer a tortious entry, or an actual ouster sufficient to bar every defence. That this would be a most rigorous conclusion, making the ancestor of the plaintiff a disseisor; it tolls the entry of the true owner, shutting out his defence, and driving him to his writ of right. 6 Johns. 191. In the “ Code of Procedure,” passed in the state of New York, April 12, 1848, (part 2, tit. 2, c. 2, sec. 81,) it is provided as follows: “ The right of a person, to the possession of any real property, shall not be impaired or affected by a descent being cast, in consequence of the death of a person in possession of such property.”- This provision renders the law of this case -absolute, for the time to come; as it, however, cannot react, it is presumed all rights, acquired before the passing of the law, are saved.