Utica, July, 1840.-The People v. Fisher.

and that the powers of the deputy should thereupon cease, as well in the case of a vacancy by death, as where the office becomes vacant in any other

way.

It was said that the statute giving the governor power to fill the vacancy conflicts with that clause of the constitution which declares, that "sheriffs and clerks of counties-shall be chosen by the electors of the respective counties, once in every three years, and as often as vacancies shall happen." Art. 4, § 8. That is dangerous ground for the defendant to occupy; for if the vacancy can only be supplied by election, his title to the office is, of course, at an end; and judgment must be rendered against him, although the relator may also fail in his claim. But I feel no great difficulty in saying, that the law is valid. There must of necessity be an interval of time between the death, resignation or removal of the incumbent, and the filling of the vacancy by the electors; and it is essential to the public welfare that some person should in the mean time discharge the duties of the office. The legislature has provided that the vacancy shall be supplied by the people at the next general election after it happens; 1 R. S. 128, § 8; and that in the mean time the duties of the office shall be discharged either by the deputy or by a person appointed by the governor, or by both of them. "This space in which the office may not be filled by election can [220] never exceed one year, and may sometimes amount only to a few days. How long it may happen to be, provided it do not extend beyond the next annual election, is a question, I think, fairly within the discretion of the legislature. The language of the constitution is not, that the office shall be filled by election in every possible case, nor that a vacancy shall be supplied in that manner as soon as it happens; but the language is, that vacancies shall be supplied by election as often as they happen. That end is fairly attained by referring the matter to the people at their next stated period for exercising the elective franchise.

A distinction was attempted between the law authorizing the deputy to hold, and that empowering the governor to appoint; and it was said that the former was valid, and the latter void. The argument was based on the fact, that the new constitution took from the central power the authority which it had previously exercised of appointing clerks of counties, and gave it to the people. But, as we have already seen, the election of those officers was not given to the people under all possible circumstances, and to be exercised. the moment a vacancy should happen. The argument in favor of the depu ty necessarily concedes, that the constitution leaves it open to the legislature to supply the place until the people can conveniently exercise their privilege. And if the legislature may supply the place in one way, I do not see why it may not be done in another, for the constitution says nothing whatever on the subject. It is said, however, that the statute giving the appointment to

Utica, July, 1830.-The People v. Fisher.

the central power, though not against the letter, is contrary to the spirit of the constitution, and therefore void. When the fundamental law has not limited, either in terms or by necessary implication, the general powers conferred upon the legislature, we cannot declare a limitation, under the notion of having discovered something in the spirit of the constitution upon a subject which is not even mentioned in the instrument.

The objection that the replication does not conclude in the proper form, rests on a misconstruction of the pleadings.

Judgment for the people.

[*221 ]

"NORTHROP vs. WRIGHT.

In a controversy in an action of ejectment between one claiming under a prior possessor and the other under a subsequent possessor, the obtaining of a deed by a predecessor of the latter from several of the heirs of the prior possessor, is an admission of title in their ancestor. Such deed fastens upon the grantee and those claiming under him the character of a tenant in common with the grantec of the other heirs of the prior possessor, and the possession held under such deed is not adverse to the rights of the other grantee, unless the presumption arising from the acceptance of the deed be satisfactorily explained.

Possession of twenty-seven years by one tenant in common, although during all that time the right of the co-tenant had not been recognised, WAS HELD, in this case, not to be sufficient to authorize a jury to presume an ouster, where before twenty-five years had elapsed, the co-tenant had made an actual entry upon the land, and was forcibly expelled.

Whether a certificate of the acknowledgment of a deed taken in 1784, not stating that the grantor was known to the officer, be sufficient to authorize the reception of the deed in evidence, quere.

Where a will produced on the trial of a cause was more than fifty years old, it was held that the legal presumption attached that the witnesses were dead, and that the party might resort to secondary evidence to prove the will; and that its production with the probate attached was sufficient evidence to authorize its being read.

A grantor's declarations after he has parted with his title are not admissible to affect his grantee; yet, where such declarations have I een received as evidence, a new trial will not on that ground be granted on a case made, where the court see that the result would be the same if the evidence was rejected-on a bill of exceptions, however, it would be of course in such case to grant a new trial.

THIS was an action of ejectment, tried at the New-York circuit in March, 1837, before the Hon. OGDEN EDWARDS, one of the circuit judges.

The plaintiff claimed to recover an undivided third part of one-eighth of a lot of about 10 acres of land, situate in the city of New-York. He proved that one Arnout Webbers was in possession of the premises previous to 1784, and died in possession. The plaintiff produced from the surrogate's office in the city of New-York, the last will and testament of Arnout Webbers, bearing date 23d August, 1776, whereby the testator devised

Utica, July, 1840.-Northrop v. Wright.

to seven of his children and one grand child all his estate, real and personal, without however specifying any particular prem- [ *222] ises, to be divided between them, share and share alike. On the

back of the will was endorsed the probate thereof and the granting of letters testamentary by the judge of the court of probates of this state under date of the 13th September, 1784. The will was read in evidence without other proof of its execution, though objected to by the defendant's counsel. It was proved that after the death of Arnout Webbers, his son Philip entered into possession of the premises, and continued in possession three or four years, when he surrendered the possession to Medcef Eden; but upon what terms, or for what cause, did not appear. The plaintiff also produced in evidence a deed of the one-eighth of the premises, bearing date 13th September, 1784, executed by John Webbers, a son of Arnout Webbers, to Joel Northrop. This deed was acknowledged 14th December, 1784, before Roger Sherman, one of the justices of the superior court of Connecticut, who certified that John Webbers, "signer and sealer of the foregoing instrument," appeared "and acknowledged the same to be his own free act and deed." The counsel for the defendant objected to the deed being read in evidence, on the ground that the execution thereof had not been sufficiently proved; but the objection was overruled. The plaintiff proved that in 1812 or 1813, Mrs. Van Orden, one of the children of Arnout Webbers, pointed out the premises in question as the lot which belonged to her father: this evidence was also objected to, but received. He also proved that Joel Northrop, the grantee of John Webbers, died in 1807 or 1810, and that he (the plaintiff) was one of three heirs of Joel Northrop; that in 1820, an agent of his erected a house on the premises in question, which was torn down by the defendant, and the agent turned out of possession. Whereupon this action was brought in July term, 1834.

The defendant proved that Medcef Eden was in possession of the premises in 1795, and continued in possession until his death in 1798, having by his last will and testament devised the premises to his son Medcef, who succeeded him in the possession. On the 7th July, 1801, the interest of Medcef Eden in the premises was conveyed by the sher- [ *223 ] iff of New-York, in pursuance of a sale by virtue of an execution,

to W. Barlow and J. Sharp. In 1805, the interest of Barlow and Sharp became vested in A. Kinder and B. Bakewell, whose interest by sundry mesne conveyances became vested in the defendant in 1825. A continued possession was shown from Medcef Eden down to the defendant; none of the conveyances, however, containing covenants of title, the deeds being mere quit-claims.

To rebut the effect of this testimony, the plaintiff read in evidence a deed bearing date 21st December, 1807, executed by all the devisees of Arnout

Utica, July, 1840.—Northrop v. Wright.

Webbers, (except his son John, who had conveyed to Northrop,) to A. Kinder and B. Bakewell, under whom the defendant claims title, conveying to them all the interest of the grantors in the premises in question.

The jury under the charge of the judge found a verdict for the plaintiff, and the defendant on a case made moved for a new trial.

J. Miller, for the defendant.

W. S. Sears & S. P. Staples, for the plaintiff.

By the Court, COWEN, J. No title in either party having been proved by direct evidence, the stress of the controversy at the trial lay upon the possessions under which the parties respectively claimed. Of the defendant's general possession and that of those under whom he claimed for a period sufficient to satisfy the statute of limitations, no doubt was made; indeed such possessions were admitted at the trial-their character alone was disputed. Of the prior possession of Arnout Webbers, there was very little direct evidence; but what there was, when connected with the deed of 1807, from all his heirs except John, to Bakewell and Kinder, made out a very strong circumstantial case in favor of the possession; and I think entirely warranted the learned judge in the assumption, that it was made out, by

which he introduced his charge to the jury. The defendant [*224] claims *under Bakewell and Kinder; his title being derived from nothing beyond quit-claim deeds coming down from Medcef Eden, who appears to have succeeded Philip Webbers in a possession which he took from his father Arnout. Certainly there is nothing, as the judge remarked, to show an abandonment of possession by Arnout or his heirs; at least no direct evidence. The possession of Arnout was prima facie evidence of a fee in him, and it came in a course of regular transmission, either by devise or descent to his heirs, seven of whom quit-claimed to the predecessors of the defendant in 1807. This is the same, in legal effect, as if the defendant had taken that deed to himself; and leaves it difficult for the mind to resist the idea that all parties considered Arnout as one having held the prior title. Such an act amounts to a clear concession by the defendant himself that he must look to Arnout Webbers, not Medcef Eden, as the source of his title. It sanctions all that could be inferred from the plaintiff's witnesses on the head of Arnout's possession, and superadds a virtual admission that he claimed a fee.

This deed to Bakewell and Kinder, when viewed in connection with the other evidence in the cause, was also properly treated as having another effect. It fastened on them and their successors the character of co-tenant with the plaintiff and his ancestor, in the proportion of seven parts in the

Utica, July, 1840.-Northrop v. Wright.

former to one-eighth or a part of that in the latter; from which the defendant certainly could not clear himself without showing some positive act by which he or those under whom he came in, disclaimed such a relation, and that, so long as twenty-five years before suit brought. No such act was shown directly, nor was there anything, that I see, from which the jury could have been left to infer it. We have nothing but general possession of one tenant in common. That he had a right to; and the law always intends that a man is in according to his right, until the contrary appears. It accordingly intends, in this case, that the defendant and his privies had all along holden the total possession of the land both for themselves and the plaintiff or his privies, with whom the former held a friendly not

an adverse relation.

Such an intendment is fatal to the defence, [*225]

so far as it rests on adverse possession.

I am aware of no cases either in this or any other court which stand opposed to the views I have expressed. The better opinion is, that mere general possession of land or other property, even without explanation, must be received as prima facie evidence of absolute ownership. To this point I collected several authorities in note 309, 1 Phil. Ev. p. 353, 354, of the Notes by Cowen & Hill. I shall not go over them; for the doctrine is not now denied. It must, then, be taken as a fact presumptively established, that Arnout Webbers was, in his life time, the owner in fee simple; his heirs followed; and it cannot, as the defendant's counsel seems to suppose, be overcome by the subsequent possession of Eden and those who followed. him, even though that were adverse, short of 25 years. It is, till that time, but possession against possession, and the one prior in time must prevail. Whitney v. Wright 15 Wendell, 171, is relied upon as showing that an abandonment by the prior possessor will destroy the force of the presumption in his favor; and no doubt he may so conduct himself as to neutralize the force of the presumption and turn it in favor of his successor, as my brother Bronson thought he had done in that case. Almost any presumption may be rebutted; but I am still at a loss for the circumstance in the case at bar, which can give application to the doctrine. I find no proof that Arnout Webbers or his successors ever doubted their title. I must deny that the negative fact of delaying a legal assertion of it can operate as an abandonment short of the time required by the statute of limitations Abandonment cannot be predicated of a prior possession till its force as evi dence is gone; and that is the idea which the word is intended to express.

The difficulty of seeing that any thing like an answering adverse possession was made out, after the character of co-tenant with the plaintiff and his privies attached, is fully demonstrated by one of the books relied on in behalf of the defendant. Walworth, chancellor, in Butler v. Phelps, 17 VOL. XXIV.

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