delivered the opinion of the court. Two questions arise on this case :
1. Whether the party claiming under the award ought not to have instituted a suit against the lessor of the plaintiff, or the persons under whom he claims, in consequence of the alleged possession in 1801 and 1802, to prevent the operation of the statute ?
2. Whether the lessor of the plaintiff, or the persons ¿inder whom he claimed, was not bound in consequence *63hi the dissent filed to institute a suit within three years after making the award ?
The confused situation of the titles to property, in What is generally called the military tract, produced the law entitled, “ An act to settle disputes concerning the title to lands in the county of Onondaga,” whereby commissioners were appointed to adjust those titles; and to secure the benefits intended by their decision, the law was so framed as to prevent an infringement of that part of the constitution prohibiting the organization of courts, other than those recognised by the constitution, in securing to the party conceiving himself aggrieved, the right of appealing from the determination of the commissioners to those courts, to be prosecuted •within a limited time. The third section of this act states, “ that the award or determination of the Onondaga commissioners, shall, after the expiration of two years after the making thereof, become binding and conclusive on all persons, except such as conceiving themselves aggrieved by any such award or determination, shall, within the said two years, dissent from the same, and give notice thereof to the said commissioners, or file the same in the office of the clerk of the county of Onondaga ; and shall also, if not in the actual possession of such land, within three years after such award or determination, commence a suit or suits, either at law or in equity, to recover the land, or to establish his or her right to the same; and shall prosecute such suit or suits to effect; in which case such award or determination shall not operate as a bar to such suit or suits; but if no such suit or suits are brought within the times aforesaid, and prosecuted to effect, then the said award Or determination of the commissioners shall be final and conclusive.”
By this section of the act, the party in whose favour the award is given, or the party dissecting, must be in *64actual possession of the premises awarded, at some pe« riod before the limitation expires, or the statute cannot attach. From the testimony disclosed in this case, it does not appear that either of the parties, or the persons under whom they claim, were in the actual possession of any part of the lot, at the date of the award, or subsequently, within the periods limited for the prosecution of suits by either of the parties. The mere directions of S. and Z. Coles to Samuel Coe, to take care of and sell the lot, before the date of the award, and their subsequent directions and procurement, of what is called in the case an improvement, not more than half an acre, by cutting down trees and fencing, and laying the bottom logs of a house, without any further attention to it, and wholly unaccompanied by any other acts, is not the actual possession necessary to satisfy the meaning of the statute. It ought to have been an actual entry, and a possession continued under it. Nothing like this appearing, it must be deemed wholly insufficient to create the obligation on the part of the defendant to institute the suit within the time limited.
The seventh section of the act states, “ that if the party dissenting in any of the cases mentioned in the said act, shall be in the actual possession of the premises, then, and in every such case, the award or determination, of the said commissioners, so dissented from, shall, as to the party so dissenting, be considered as of no effect; and in every such case, unless the party in whose favour such award or determination shall be made, shall, within three years after such award is made, commence a suit, either at law or in equity, to recover the land, or to establish his or her right to the same, and shall prosecute such suit with effect, then such person in whose favour such award or determination is made, and his or .her heirs shall for ever be barred,” &c.
*65It is contended, on the part of the defendant, that by this section of the act} the lessor of the plaintiff having entered his dissent, by the persons under whom he claims, within the period of two years after the award, and no suit having been instituted until after the defendants came into possession of part of the premises, and upwards of three years after the dissent was filed, they are iiow concluded. This, I think, is not the sound construction of the statute. Taking this section in connection with the third, it is manifest that the legislature intended to secure to the party claiming adversely, an opportunity to assert his or her title to the premises; yet if the interpretation contended for be correct, the party dissenting must proceed as for a vacant possession. This could never be the intention of the law. No possible benefit could thereby result to the party claiming adversely to the award. Being out of possession, he might be concluded without an opportunity to controvert the title, for the want of notice of such proceedings.
It does not appear that either of the parties had been in possession, until upwards of three years after the dissent was filed; and no construction, according to the evident meaning of the statute, will comprehend the case of a vacant lot. Thus circumstanced, the parties must depend on the strength of their respective titles. The defendant, on the trial, relied on the award; and the plaintiff having adduced a perfect title, the verdict ought to stand, and the judgment be rendered accordingly.
Judgment for the plaintiff