Albany, December, 1840.-Humbert v. Trinity Church.

acter we are to ascribe to the defendants' possession from time to time as it was taken by them, in respect to its being adverse or not. That the defendants have been actually possessed of very considerable portions of the land in dispute, for a long time, and from a period prior to 1705, I shall leave to a simple review of the bill, after reminding the court, that no dispute seemed to exist between the learned counsel who argued this cause, that it was sufficiently ancient, distinct and definite, to satisfy the statute of limitations in time, in precision and in notoriety. But when we came in other respects to the character of the possession, viz. whether it was consistent with the claim of the complainants as tenants in common, or adverse, they differed widely, the counsel for the complainants insisting on the former, and the counsel for the defendants on the latter. So far as the statute of limitations may be concerned, this is the only issue we are called on to decide.

Have the defendants then uniformly, continuously, definitely and notoriously been in possession adversely to the complainants, for a period of twenty years before the bill was filed? Another form of putting the question is with what intent, quo animo, in the legal phrase, have the defendants accompanied their possession; and has that quo animo [*598 ] been indicated by acts calculated to exclude the complainants from all participation as tenants in common?

In 1705, the defendants obtained a grant of the Duke's farm, on their own petition. The bill states that they artfully presented to the government, in their petition, such a description of the farm as left the northern boundary ambiguous. This northern boundary was the dividing line between the Duke's farm and the land of the complainants, and should have been so accurately marked and described as to render the separation entirely obvious to the adjoining proprietors. But it is said the defendants had already formed the intention to possess themselves of the Bogardus lands as being part of the Duke's farm, and had introduced the ambiguity in order to subserve that intention. Not being definitely limited on the north, this circumstance opened the door for pretending that their grant of the Duke's farm comprehended the Bogardus lands; and it was for the fraudulent purpose of following out such pretension by actual encroachments, that they had sought to procure the equivocal grant. It is said they succeeded in imposing upon the government, and that their purpose soon after became quite manifest by their conduct. Taking up the story, at this stage, more nearly in the language of the bill, we are told that but a small part of the Bogardus lands were improved or enclosed. That the defendants proceeded to act on their original policy, by making considerable encroachments prior to the American revolution. Their course was to take such possessions from time to time as they believed would eventually ripen into a title. In this way they made a variety of lodgments, though resisted by the Bogardus heirs. The defend

Albany, December, 1840.-Humbert v. Trinity Church.

ants persevered with intent to deprive those heirs of their birthright. Many of them were constrained to abandon their possessions by the delendants' habitual use of menaces, the frequent exercise of actual violence, such as pulling down fences and improvements, burning them riotously, threatening suits and imprisonment, and occasionally resorting to the temptation of pecuniary offers. They boasted of their wealth and power, and declared that they would never desist from their purpose of getting full posses[*599] sion. *In this way, the more timid occupants were induced either to quit their possessions, or to take title under the defend

ants.

This brings us to the year 1785, down to which time, notwithstanding the disadvantages under which the Bogardus heirs labored, several among them, including one Cornelius Bogardus, kept possession of large portions of their land, claiming title for themselves and their co-heirs. The bill characterizes these encroachments at every step as wrongful, the defendants being fully aware that they were acting illegally, and having in view their original design. So far there is no dispute that they proceeded with an adverse claim of title, and took such a possession as would have constituted a bar by the statute of limitations, had it continued for twenty years, and not been qualified with the imputed scienter of wrong and fraud,

This brings us to the deed from Cornelius Bogardus to the defendants, which is much relied on as changing the relation of the parties from that of enemies to friends-from that of adverse holders to tenants in common. Cornelius was a common proprietor of the land in dispute, and stood fore-* most among those descendants of Anneke Jans Bogardas, who had sturdily opposed the encroachments. He (says the bill) had tenants, and divers portions in fence, and was therefore a prominent object of persecution for years, both before and after the American revolution. His fences were prostrated in the night and burnt by numerous parties of men acting for the church, and who turned in their cattle and devoured his crops. Thus he suffered long and severely; and being poor, was successfully assailed with an offer of £700, in consideration of which he granted and conveyed to the defendants, who claim that their title under such grant is good and valid. He giving way, the defendants were let into the general and unrestrained possession of large portions of the land. The bill charges that the defendants offered the £700 by way of purchasing Cornelius' birth-right: and that taking the deed and being let into possession, they by this means became seized

and possessed as tenants in common, and in this manner and rela[*600] tion they continued to occupy till the filing of the bill in *1834, inasmuch as no subsequent event or occurrences happened to change in that respect the character of their possession.

The allegation, however, almost immediately follows, that the defendants'

Albany, December, 1840.-Humbert v. Trinity Church.

conduct has since been such in regard to that deed as to indicate the unfairness of their original design. That they have been cautious in its exhibition, refused to record it, and generally kept it in profound secrecy, affecting even to doubt its existence, fearing that the heirs might claim it as an admission of a tenancy in common. In truth, the great reason for obtaining the deed was a pending proceeding before the legislature to question their title. They therefore obtained and exhibited it to the legislature as covering a part of the Duke's farm-in other words, their own farm. That excepting this and the production of the deed in 1807, in defending themselves against a claim by some of the Bogardus heirs, they have uniformly concealed the deed, and affected to hold the lands as if none had been received.

This part of the bill calls for more particular attention, because it is relied upon as containing averments, that the defendants, by the act of taking various possessions under the deed became tenants in common, and that they have since continued to hold as such. Therefore it seeks to infer that the adverse character of their possession was taken away. I am not disposed to deny, that had these averments stood alone, although they are not direct, yet they might be received as of the import contended for. The allegations are, that by means of the deed from, and possession under Cornelius, the defendants became tenants in common, and had held to this day in that relation. True all this is obviously stated as an inference from the naked act of taking possession under the deed, without showing what sort of a deed it

mon.

It might on its face have negatived all idea of conveying Cornelius' common right. But perhaps the presumption would be, that both parties were dealing, and intended to deal in his undivided share as a tenant in comThat inference standing unrebutted, would, I should think, be about equivalent to an independent averment that "the defend [601] ants had taken and held as tenants in common with the Bogardus heirs, from the year 1785. But taken with its surrounding circumstances, the acts and intents which preceded and followed the deed, it seems to me that the inferential allegation is completely overcome. From the year 1705,

down to the date of the deed, the defendants had entertained the settled. design, coeval with their petition for a grant of the Duke's farm, to claim the Bogardus lands in severalty as a part of their grant. They had prosecuted that design through the instrumentality of threats, of persecution, of riotous invasion and on some occasions in a spirit of vandal ferocity. A part of their system when these failed, was a resort to pecuniary appliances. They bought out the more obstinate inhabitants, for the very purpose of acquiring and extending adverse possession in pursuance of their general design. With Cornelius among others, they had utterly failed of success by the more hostile means of incursion. They therefore bargained with him to

Albany, December, 1840.-Humbert v. Trinity Church.

leave the land, taking some sort of conveyance. But the bill alleges that so far from any intent to come in as tenants in common, it was for the very purpose of exhibiting it to the legislature as covering a portion of the land contained in their own grant from the crown. They generally concealed it among their private archives; and it is not said, that even when, on one occasion, they produced it in defence of an action, they claimed under it as passing a right in common. They feared that if seen, the Bogardus heirs might seek to infer that they held in common; and finally we are told that, with the two exceptions mentioned, they have uniformly concealed the deed, and affected to hold the lands in question as if none had been received. Nay, one of those very instances which are insisted on as exceptions, was an adverse claim addressed to the legislature, and the other is in itself entirely equivocal. It would be a strained and unnatural construction to suppose that in either case, they meant to admit the claim of the Bogardus heirs.

Now although a man who may hold possession rightfully as a tenant in

common, presumptively refers himself to that right, yet the con[602] trary may be shown; and if his conduct be such as to satisfy the mind that he means to hold out his co-tenants, and he does in fact exclude them, this is an ouster: and his possession from that time becomes adverse within the meaning of the statute of limitations, equally so as if he had never any right to claim as tenant in common. It by no means follows, therefore, that even had the deed from Cornelius expressly mention ed his right as a tenant in common, the defendants were necessarily tied up to hold in that relation. They might at any moment break the connec tion, by openly disavowing it; and from that time the statute of limitations would begin to run. Can there be any doubt in this case, cp what is stated by the bill, that the defendants have done more; that they have not merely broken a connection in common, but that it never existed in fact; that they always intended to claim the land in question as their own without conceding the right of participation to any other? I should think the bill leaves no room for doubt. But even should the court be of opinion that the bill has, in the mode of stating the case, left the matter equal between the parties, the rule of construction comes against the complainants, that ambiguity in the language of their pleader shall be turned against them.

The year 1785 seems to have witnessed the final reduction of the disputed territory. When Cornelius and his tenants gave way, the contest became hopeless. At any rate the bill charges no new and distinct act of taking possession after that year, so that all the land in dispute must be taken to have been held and claimed in severalty for nearly fifty years.

But the bill seems to have been drawn on the assumption that in proportion as the defendants' encroachments were committed under a conscious

Albany, December, 1840.-Humbert v. Trinity Church.

ness that they were depriving the Bogardus heirs of their birth-right, and in proportion as the defendants were, therefore, put to sinister expedients in the prosecution of their design, their claim to protection under the statute of limitations is weakened. The bill abounds with imputations of their knowledge that they wanted even a color of right; and every step is referred to their preconcerted design of 1705: the design of claiming the Bogardus lands as a part of their own. In this way it [ *603 ] cannot be denied that the bill makes out a case of strong moral transgression; and the question thus raised is, whether a plaintiff, lying by and forbearing to bring his action till after the time in the statute of limitations shall have run against him, can excuse his negligence by the fact that the defendant knew all along he was in the wrong. If the statute is to become unavailing on the ground that the wrongdoer knows he has been withholding an acknowledged right, it is obvious that it can very rarely be used as a protection; and the forms of pleading have been entirely mistaken for centuries. It will no longer be sufficient, even in assampsit, simply to deny that the defendant promised or that the action accrued within six years. The plea should be that he has honestly withheld the debt; or at least the plaintiff may reply that the defendant withheld it under a consciousness that the delay was wrongful; and the issue will thus always be joined upon his integrity. So an action of trespass could never be barred by the lapse of six years, unless the defendant could show the trespass to bave been inno

But it is entirely obvious that none of the statutes of limitation proceed upon such ground. Whatever the character of the injury, and whether committed in good or bad faith, the statute bases itself upon time. The civil remedy is cut off in two, four, six, twenty or twenty-five years, except it be impeded by certain specified disabilities, such as infancy, coverture, &c. In like manner public prosecutions even for very black crimes are barred by the lapse of three years. The statutes limiting the right of entry into land and the right of action for real estate, speak the same language and must be construed by the same rules. If the claimant have not been in possession actually or constructively within twenty years, he loses the right to his ejectment. The 2 R. S. 221, 2d ed. § 5 declares, that "no action for the recovery of any lands, &c. or the possession thereof, shall be maintained, unless it appear that the plaintiff, his ancestor, predecessor or grantor, was seized or possessed of the premises in question within twenty years before the commencement of such action." The only exceptions are mentioned in § 16. If any person "entitled to commence any ac- [604] tion, &c. be at the time the title descended or accrued within the

age of twenty-one years insane, imprisoned or a married woman, such person may sue within ten years after the disability shall have ceased. These disabilities can no more be multiplied at law or in equity, when a legal right VOL. XXIV.

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