Reuben Van Gelder, for the premises. On the 22d January, 1812, Sarah, Mercy, Mary. & Abigail Van Gelder, and Elizabeth Wichill, the five other children of the patentee, executed a quit-claim deed of the premises to Reuben Van Gelder; and on the 19th August, 1813, Solomon Van Gelder, the husband of Mercy; Elijah Van Gelder, and Joseph Van Gelder, the husband of Mary, executed a deed of the premises to Reuben Van Gelder.

Elijah Van Gelder; David Van Gelder, & Abigail his wife; Solomon Van Gelder& Mercy, his wife; Elizabeth Philo; Sally Van Gelder, and Joseph Van Gelder, & Mary his wife, executed to William Preston, a deed of the premises bearing date the 13th February, 1798.

Jacob, William & Elijah Van Gelder, executed a deed of the premises bearing date the 15th March, 1798, to William Preston. On the 4th October, 1798 William Preston, executed a deed of the same to David Matthews, who by his will dated 29th August, 1810, devised an undivided moiety, to John Matthews his only son, and the residue to his said son, and Robert Morris and Garrit Wendell, in trust, for certain purposes stated in the will.

When Preston first attempted to purchase the lot from the heirs of the deceased soldier, he was told that Reuben had sold the lot to Thorne. The witness saw Thorne pay money to Reuben, and all the other heirs received a share of the money; but the witness did not know whether they were present at the sale to Thorne.

The Court held that there was an adverse possession which protected the defendant, and said;,"The conduct of Reuben, sub"sequently to the conveyance made by him, confirms in a great degree, what has been stated to have been the intentions of all "the parties when it was executed. The consideration received "was divided between all the children. They, therefore, sup"posed the sale made by Reuben sufficient to pass the entire "lot, or they never would have accepted of their proportion of "the consideration received for it; and Thorne, supposing him"self to have obtained a good title, did not hesitate to dispose of "it to a person who entered as owner of the whole lot.

"If, therefore, it is conceded that Reuben's deed conveyed "one minth part only to Thorne, and that if he had entered under "it such entry would have been according to his right as tenant in "common, and that his co-tenants could not have been disseised, "because the possession would not have been adverse to their rights; "still this cannot change the character of the defendant's possession, "nor the previous possession of his father. Neither of them had "any knowledge of this deed. The father purchased by warranty "deed from Thorne, who represented himself to be the sole pro prietor of the lot. As early as July or August, 1792, while "the defendant's father was on the lot, Thorne went to view it,

"and avowed himself to be the owner, and sold it for 1401. From "that period, in strictness, the adverse possession commenced. "At all events, it commenced from the date of Thorne's deed to "the elder Smith, which was in February, 1794. It is evident, "therefore, that the doctrine, in relation to the possession of ten"ants in common, does not apply to this case. It might as well "be urged as applicable to a conveyance made by a stranger, of "any lands held in common. And it will not be questioned, that "the possession of a purchaser under such a deed, given without "right on the part of the grantor, would notwithstanding, be adverse to the rightful owners, although held by them in common. "But, in the present case, no such tenancy did in fact, exist." It was also held that the adverse possession of Smith, the grantee of Thorne, was sufficient to defeat the conveyances obtained by William Preston, in 1798. And that the conveyances executed by all the children of the patentee to Reuben, must enure to the benefit of the defendant, who held under Reuben, through Thorne. Jackson ex dem. Preston & Al. vs. Smith, 13 Johns. Rep. 406, 412,

413.

Five years actual adverse possession of a tract of land under a junior grant, will give the tenant a title to so much as he has in actual possession, even against a person who has a paramount title, and is in the constructive possession of the part in dispute. Middleton vs. Dupuis, 2 Nott & M'Cord's Rep. 310.

In Jackson ex dem. Hill vs. Streeter, (5 Cow. Rep. 530, 531.) SUTHERLAND, J. delivering the Opinion of the Court, said, "I do not "understand the Judge as having excluded the patent to Miles; "but only as deciding that the patent itself without other evidence, "would not shew a subsisting title out of the Lessor of the Plain"tiff. In this, I apprehend, he was correct. The Plaintiff had "shown a deed for the premises in question from Buck to John "Streeter, in September, 1798; that Streeter went into possession under the deed, and contined in possession until his death, 19 or **20 years before the trial, leaving four children; (the interest of "two of them being owned by the Lessor;) and that the Defendant Benjamin, one of the children, has been in possession ever "since. This was a good adverse possession against the patent granted in 1790.

"The evidence that Buck, who gave the deed to John Streeter, "had no title, was properly rejected on several grounds. John "Streeter was the common source of title to both parties. His "children, there being no will, are presumed to have taken the "premises by descent, as tenants in common. It is not for the "Defendant to say that the common ancestor had no title, and "that his possession is not as tenant in common, but in his own "individual right."

So in the case of Jackson ex dem. Belden & Al. vs. Thomas, (16 Johns. Rep. 293,) where the Plaintiff claimed the premises in question as part of the Minisink patent, the question of title depended on the adjustment of the boundary lines of that, and of four contiguous patents, viz: John Evans' Patent, Bridge's Patent, Holcomb's Patent, and White's Patent. On the trial the Defendant proved that part of the premises was within White's patent, and all the land covered by this patent was relinquished on the trial by the Plaintiff. The Defendant also proved that of the residue of the premises he had been in possession for more than twenty years, as a purchaser from Holcomb; and that Holcomb, after obtaining his patent, and several years before the Defendant's purchase from him, had taken possession of the same, claiming it as included within the bounds of his said patent. It was decided, however, by the Court, that this part of the premises lay within the lines of the Minisink patent, and therefore belonged to the lessors of the Plaintiff. But the Defendant had judgment on the ground of his adverse possession; and SPENCER, Ch. J. who delivered the Opinion of the Court, said; "It appears to me, that an adverse pos"session is abundantly made out. When the patent was granted "to Holcomb, he did not live on the premises in question; but ev"er since the granting of the patent, that part of the premises not "included in White's patent, have been held by Holcomb, and "those who have purchased of him; and the fact is proved, that "the Defendant is in possession claiming title under Holcomb's pa"tent, and he certainly entered into possession since the granting "of the patent to Holcomb, for his possession has been for twenty, "or twenty-five years." "If the Defendant was not in possession "when Holcomb's patent issued, and the case shows he was not, "and if these premises have been held ever since that patent is"sued, by Holcomb, and those claiming under him, then the De"fendant's possession was, in its inception, adverse.

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"The principle, however, that possession, must in its inception "be adverse, and continue so, is not well understood. In those cases in which that observation occurs, nothing had happened "to change the character of the first possession, and that was "considered as denoting quo animo the possession was held after "the first entry.

"If one enter on land without any title or claim, or colour of "title, the law adjudges the possession to be in subservience to "the legal owner, and no length of possession will render the "holding adverse to the title of the owner; but if a man enters

on land, without claim or colour of title, and no privity exists "between him and the real owner, and such person, afterwards, "acquires what he considers a good title, from that moment his "possession becomes adverse. I am not sensible that the Court "have ever held a contrary doctrine.

"In the present case, even Holcomb was not in possession of "these premises when his patent issued, though he entered imme

diately after. It appears to me that an adverse possession for a "sufficient length of time to bar the Plaintiff's right of entry, is clearly established by the evidence."

It will be seen from the facts of this case, that a great part of the above opinion is merely hypothetical, and had no immediate relation to the question before the Court; as the Court unhesitatingly decided that the possession set up by the Defendant, "was, in its inception, adverse," the discussion of the question, whether a possession, in its origin, "in subservience to the legal owner," could by any and what subsequent event, be converted into an adverse possession, seems to have been uncalled for in the decision of the cause; and consequently, the opinion expressed on that point would appear to have only the authority of a dictum. But it has since been incidentally recognized as authority; and the extent and meaning of those observations of Chief Justice SPENCER, have been limited and defined. It is also to be remarked, that the qualifying words, "and no privity exists between him and the real owner," materially restrain that generality of expression which would otherwise conflict with the settled course of decisions in that Court; it is not to be imagined, that such was the intention of the Chief Justice.

In the following case of Jackson ex dem. Ten Eyck & others vs. Frost, (5 Cow. Rep. 346.) the Supreme Court have explained the meaning of the expressions used by the chief justice in the

above case.

One ground of defence insisted upon at the trial, was that of an adverse possession; in support of which, the defendant "prov"ed, that one M'Alpin occupied the premises in question in 1795, "claiming them as his own, saying they were in a gore; which "therefore belonged to the settlers; that M'Alpin was in posses"sion 25 years before the trial, and more than 20 years before the "suit was commenced; that about 25 years before the trial, he "exchanged farms with one Miller, now deceased."

The defendant offered to show by Miller's declarations, that he had a deed from M'Alpin; which evidence was objected to, and excluded by the judge.

The defendant then proved that Miller remained in possession 12 or 15 years, whence the possession passed through several hands down to the defendant.

The widow of Miller swore that when her husband exchanged with M'Alpin, he took a quit-claim deed from M'Alpin, who said he thought he had a good title; that no rent had been claimed or called for; and the premises in question were not included in any of the patents; that this was 27 years before the trial; that she could not read; did not see any deed executed; but M'Alpin agreed to give one; and her husband had a paper which he said was a deed from M'Alpin.

The judge charged that the plaintiff had made out a sufficient title and location, and that the defendant had failed in establishing a bar by adverse possession.

The opinion of the court was delivered by SAVAGE, Ch. J., who, in reference to the defence of adverse possession, said;

"The defendant, and those under whom he claims, have had "possession for a sufficient length of time. The only difficulty is, "as to the character of that possession. Was it adverse? M'Al"pin was the first possessor; he claimed it as his own. Why? "It was a gore; no rent had been demanded; and it of course belonged to the settlers. This amounts to saying that he claim"ed it, because he had no title; for if it was a gore, then the land "belonged to the state. The idea that rent could be demanded, "presupposes a landlord, and of course an owner. The deed to "Miller was given with this parol abstract of the title; it was not "that he owned the land, because the fee was vested in him by "purchase or descent; but it was his because there was no other "owner. This is no title on which to rest an adverse possession. "The purchaser, who took such a deed, knew that what he pur"chased amounted to nothing; for he was bound to know it.

"I am aware that it was said in the case of Jackson vs. Thomas, "(16 John. 301.) that "if a man enters on land, without claim or "colour of title, and no privity exists between him and the real "owner, and such person afterwards acquires what he considers "a good title, from that moment his possession becomes adverse." "This doctrine must not be understood as authorizing the purcha"ser to consider a naked possession a good title. It must be, as I "understand the law, such a title as the law will, prima facie, con"sider a good title. Otherwise there would be no uniformity. "The character of the possession might be made to depend upon "the understanding of the tenant; and the same possession which "would be a good defence to one, would be worthless to another. "And hence a possession under a French grant was held not to "be adverse, because such a grant could not possibly be the source of a good title.

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"

The possession of Miller, therefore, seems to me to be merely "a continuation of M'Alpin's possession, with no greater rights, but precisely of the same character. Admitting therefore, that 'the possession of Miller's grantee was adverse, the length of "time is not sufficient to bar the plaintiff."

The defendant, and those under whom he claimed, had been in actual possession of the Lands in controversy, for more than twenty-five years, under a colour and claim of title, by deed; Held, that the lessors of the plaintiffs were barred; all their disabilities having ceased more than seven years before the commencement