By the Court,
Johnson, J.The question whether George Parish took the premises in question "by inheritance, as the heir of his brother David, is settled in the plaintiff’s favor by the decision in Parish v. Ward, (28 Barb. 328.)
The only question, of any considerable importance, in the case, to be considered, is, whether the defendant has held the premises for twenty years, or more, last past, adversely to the plaintiff’s claim of title.
The court, before whom the cause was tried, without a jury, has found as facts from the evidence, that the defendant, in 1812, took a conveyance from William E". Lummis of certain lands therein described, in which the lands in question were excepted, and the fact recited that these lots thus excepted had been sold and conveyed to Henry P. Borrekens by deed bearing date the 7th July, 1810. That the defendant went into possession of the lands so conveyed, and of the lands in question thus excepted from his conveyance, at the same time, and has occupied these lands ever since 1812. That the defendant, on the 22d of August, 1825, conveyed to Thomas Shipley the same premises granted to him by Lummis, by deed, which contained the same exceptions and recital as to the premises in question. And that Shipley, in October, 1838, reconveyed to the defendant the same premises, with the same exceptions and recital. The court further *390finds that the defendant is in possession, and has been for more than twenty years, but that his entry'was not hostile to the plaintiff’s title. Upon these facts it is impossible to hold as matter of law that there has been such a holding by the defendant as to bar the plaintiff’s right of entry under his title, which is clear and undisputed, so far as it rests in conveyance from the real owner. It seems to me entirely clear that the defendant by accepting such a deed, and then entering into possession of the lands therein excepted, and declared to have been conveyed by his grantor to another, must be deemed in law to have entered in subserviency to the title of such other, and to continue to hold in subserviency thereto ; unless he can establish the contrary by some clear and unequivocal act or claim of title in himself. (Fosgate v. Herkimer Manuf. and Hydraulic Co., 9 Barb. 287; Same v. Same, 12 id. 352.) The seisin of a party once established is deemed to continue, although he leave the premises vacant, and another enters thereon.
Under our statutes, possession is not deemed adverse, unless the occupant entered under claim of title, exclusive of any other right, founding such claim upon some written instrument, as being a conveyance of the premises, or upon the decree or judgment of some competent court. (2 R. S. 294, § 9. Code, § 82.) In all other cases the occupation is presumed to have been under the legal title, where one is established. (2 R. S. 293, § 8. Code, § 81.)
There is no pretense here that the defendant entered under any written conveyance of the land in question, or by virtue of any judgment or decree of any court. He was a witness upon the trial, in his own behalf, and makes no such claim. He does, however, pretend that he supposed he had purchased of Lummis the land in question, at the same time he bought the land described in the deed. But this is so utterly at variance with the deed he received from Lummis, and with his own deed to Shipley, that the court might well find as matter of fact from the evidence, that his entry was not hostile *391to the plaintiff. He does not pretend to claim that the paper, which he says he received from Lummis to protect his possession against Borrekens, was iti. the nature of either a conveyance, or a contract to purchase. Indeed the defendant has so repeatedly and in such formal and solemn manner recognized and acknowledged the title under which the plaintiff claims, from the time of his first entry, that he ought now to be concluded, and estopped from disputing it. And such is the rule as between the defendant and his grantor and those claiming under the latter,- in regard to the mere question of title, as evidenced by the recitals in the defendant’s deed. (Demeyer v. Legg, 18 Barb. 14. Torrey v. Bank of Orleans, 9 Paige, 649. Sinclair v. Jackson, 8 Cowen, 586. Carver v. Jackson, 4 Peters, 83, 86.) The recital of a fact in a deed is evidence against the grantee, and the acceptance of the deed operates as an estoppel upon him and those who claim under him, as against the grantor and his assigns. It is unnecessary, however, to invoke the aid of this doctrine in this case, and indeed it is not strictly applicable to the case of a real claim of title by adverse possession. It bears, however, to a certain extent, upon the questions of the character of the defendant’s original entry, and subsequent possession, and aids in determining the facts in regard to such entry and possession. Upon the whole, I am entirely satisfied that the learned judge at the circuit was right in the conclusion that the defendant’s possession has never been adverse to the plaintiff’s title.
[Monroe General Term, March 3, 1862.Johnson, Smith and Welles, Justices.]
The judgment must therefore be affirmed.