On the argument, two points were chiefly relied on, for anew trial; 1. The discovery of material evidence since the trial, as to the location of the premises, connected with the allegation of surprise; and, 2. The overruling of evidence that’ Theophilus Beekman entered in 1796, claiming to be a tenant in common, under the same title with the plaintiff.
*179The view I have taken of the second point, renders it nnnecessary for me minutely to consider the first; though, from a carefiil review of the testimony, it appears to me that the weight of evidence is against the verdict. The fact testified to by William Lewis, is a strong and almost decisive one. He swears, that in 179.1, or shortly after, he took several loads of broken bricks out of the cellar of the brick house occupied by Isaac Teller, before the war, and that the lot was then vacant and unfenced. It appears to me that a new trial would throw light on the question, and that it is fit and discreet to have a re-examination before another jury.
The plaintiff offered to show that Isaac Teller, under whom die lessors of the plaintiff have deduced a title, was seised in fee of 25-32 parts of the premises. This was objected to, and the judge intimated an opinion, that it was unnecessary, as the defendants relied solely on an adverse possession, and the plaintiff had already proved enough to recover, bat for the adverse possession. The plaintiff then offered to prove that Theophilus Beekman entered in 1786, claiming to be a tenant in common under the same title; and the case states, that the chief justice asked the counsel for the plaintiff, if they coupled that offer with an admission that Beekman was a tenant in common with them and that if they admitted that fact, he would admit the proof, otherwise not, assigning as a reason that unless the plaintiff admitted Beekman to have been a tenant in common with him, it would not alter the case, as the plaintiff could not avail himself of such entry, as enuring to his benefit. The counsel for the plaintiff refusing to make such admission, the evidence was rejected, and a bill of exceptions tendered.
In determining the propriety of rejecting the evidence, as to the manner of Beekman’s entry, we must not lose sight of the fact, -hat Beekman’s possession was relied on by the defendants, as constituting a material portion of the time necessary to make the adverse possession, relied on by the defendants, as a bar to the plaintiffs recovery.
The plaintiff, too, had offered to show title, as a tenant in common, to 25-32 parts of the premises; and thus admitted that with respect to 7-32 parts, there were ether persons tenants in common with the lessors. It appears to me that the plaintiff ought not to have been required to admit the fact that Beekman v*s a tenant in common. To constitute an adverse possession, there *180must be a possession, under colour and claim of title; but Beeh> man’s entry, claiming as tenant in common under the same title as that of the lessors of the plaintiff} qualified his entry and admitted *he title of the lessors; so that neither Beekman, nor the defendants,'could set up that entry, as adverse to the common title, or as injurious to the rights of the other tenants in common. A possession, for ever so long a time, stripped of the circumstance that it is unaccompanied with the claim of the entire title, will not amount to án adverse possession, barring those who have the real pnd legitimate title. When; therefore, Beekman evinced, by his acts and declarations, that he did not mean to usurp the possession to himself, but that he entered in subserviency to the same title, and as a tenant in common, his possession lost its adverse character, as regarded all those who had right and title in the premises.
It has never been considered as necessary to-constitute an adverse possession, that there should be a rightful title. Whenever this defence is set up, the idea of right is excluded; the fact of possession, and the quo animo it was commenced or continued, are the only tests; and it must necessarily be exclusive of any other rights.
The most that could have been imposed on the lessors of the plaintiff, to entitle them to the full benefit of Beekman's admissions .and declarations, would be to subject them to take those declarations as evidence, as well for as against Beekman, and thus leaving it to the jury to decide, whether, in point of fact, he was not to be considered as entering and having right as a tenant in common. But most clearly, the plaintiff ought not to have been required to admit any fact, as a prerequisite to giving the evidence of Beekman's declarations.
I think this point too clear to require being any further pursued ; and that a new trial ought to be granted, with costs to abide «he event of the suit.
Van Ness, I. and Yates, 3 were of the same opinion.