Smith ex dem. Teller v. Burtis

Kent, Ch. 3. (dissenting.)

The motion for a new trial is made upon the following grounds: 1. That the verdict is against evidence; 2. That the judge overruled testimony which ought to. have been received; 3. The discovery of new evidence since the trial.

*1811. In the discussion of the first point, a question arose on the construction of the statute of limitations, as to the time allowed a party, whose right accrued during his disability, to make his entry and bring his suit, after the disability had ceased. Our statute upon this subject is the same as the act of 21 Jac. I. c. 16. s. 1, 2. (Laws, v. 1. 563.) and the better opinion is, that the party has, in every event, 20 years to make his entry; and if under disability during any part of that time, he has 10 years, and no more, after the disability ceases. It may so happen, that the 20 years and more will elapse during the disability, and then 10 years will be afterwards allowed cumulatively, or the disability may ceáse so far within the period of the 20 years, as to allow of only 20 years in the whole, though part of that period be covered by the disability. This construction does not" allow to persons labouring under disability, the same number of years after they become of competent ability, as it allows to other persons who were under no such disability. Such is the policy and the very language of the statute, for it did not mean, as in the case of the limitation of personal actions, that the party should, at all events, be allowed the full period of 20 years after the disability had ceased; because the words of the act are explicit that the extension of the time of making the entry, beyond the 20 years, is in no case to exceed 10 years after the disability is removed. This is also the amount of the doctrine contained in the case of Doe, ex dem. George, and Frances his wife, v. Jesson; (6 East, 80.) for there, the whole period, from the time that the right descended, or accrued, to the time of bringing the suit, was but 20 years, and above 10 of the first years of that time had been consumed by an acknowledged disability, and yet the right of entry was held to be tolled by lapse of time.

But this question does not necessarily arise in the present case, and, therefore, what has been said is not to be considered as á definitive opinion upon the point. If Teller was dispossessed in 1785, the 20 years of the statute had not only expired, but 20 years after he came of age ; and if he was not ousted until 1795, then 20 years had not, and have not, to this moment elapsed. The principal matter of fact then is, was here an adverse posses* sioninl786? for if that fact be established, there is no just ground from the case to question the other fact found, that Henry R. Teller was of age 20 years before suit brought, which was not until January, 1808.

If an adverse possession existed in May, 1786, there was sufficient evidence of an unbroken continuation of such, possession *182down to 1795, when the existence of an adverse possession under' the deed of partition is not disputed. „

It is not easy to reconcile, and it would be a tedious and use-less labour to analyze and compare every part of the testimony on the subject of the Beekman possession. It was my impression at the trial, when I understood the facts better than I can now from the case, and it is my impression still, that the evidence warrants the conclusion, that the possession taken under Theophilus Beekman, in 1786, was adverse to the claim of the lessors of the plaintiff, in respect to the quo animo with which it was taken, and as to the whole extent of the premises. Beekman exercised acts of ownership from May, 1786, by leasing the premises, and taking the rents, and he had caused the house to be moved on to the premises, and paid for the labour and materials as early as November, 1785; and, in 1795, he was party to a deed of partition of the premises, from which a regular title to the defendants was deduced. The intent with which possession is taken and held, is to be inferred from circumstances, and those circumstances are matters of fact for a jury. A subsequent act will explain a preceding entry: as where a parcener entered into the whole of a vacant possession, and made a feoffment in fee. (Co. Litt. 374. a.) Taking the circumstances of the case together, we are naturally led. to the conclusion that Beekman entered, in 1786, and held adversely to the right of Teller.

It must be extremely difficult to attempt, now, to locate, with perfect precision and certainty, the extent of the Beekman possession. Within the last 20 years, the adjoining streets, lots and buildings have undergone such alterations, that we cannot now recognise any of the ancient features of that part of the city. The ground in controversy lies in the most busy and valuable part of Broadway. Washington-Hall is erected on the spot where the Ackerman house, adjoining the Beekman house, formerly stood. The lots adjoining, and including the premises, and including the African burying ground, for many years since the American war, were regarded as uninviting suburbs. The streets have since been widened, the face of the ground wholly changed, and it is now covered with a flourishing population; and elegant improvements;

—— rara domorum
Tecta vident; qua nunc, &c.

We are not, therefore, to be surprised, that the testimony of witnesses should differ, and be contradictory, relative to the exact *183location of the Beekman house, and how far, and in what direction, it was visible to the spectator, as he .was coming up Chamberstreet. These inquiries must have been better understood by the jury, at the trial, than they can now be by the court, upon the case; and especially as the jury bestowed two days in a patient investigation of the fact. I thought, at the trial, that the weight of evidence was in favour of the conclusion that the adverse possession, by Beekman, including the yard around his house, as well as the house itself, rested on the very spot of the original possession of Teller; and considering the improvements which have since been made, under the Beekman possession and title, and the inconvenience, if not hardship, in giving effect to a dormant title, in the face of such bona fide and immense improvements, I think it would not be discreet to send the cause to a second trial on such a doubtful point of fact, and in favour of such a dormant title.

2. The next point is, whether there was a mistake of the law, in rejecting the evidence offered by the plaintiff of the claim under which Beekman entered. It appears to me, upon subsequent reflection, that I was not mistaken at the trial. The entry and possession of one tenant in common will enure as the entry and possession of his companion, unless be enters, claiming the whole, and in exclusion of his co-tenant. But this rule is founded upon the fact of an actual tenancy in common existing between the party entering and the party claiming the benefit of that entry. It grows out of the privity of estate-, and here the lessors of the plaintiff refused to admit such privity, and thereby precluded themselves from the benefit of such entry. The statement of the point appears to me to suggest, of itself, the true conclusion of law.

The admission of a tenancy in common, under the same title, is not an admission that the plaintiff partook of that title. Nothing is more common, than for adverse parties in ejectment to claim under the same title ; yet the entry of one party is not the entry of the other, but upon the assumption that they are co-tenants in the same title and interest. They may be sharers in thatinterest in very different degrees and proportions, but still there must be a co-tenancy to establish the privity.

3. The last ground of the motion, is the discovery of several new witnesses, relative to the contested point of the adverse possession, and that the setting up of an adverse possession, at the trial, was a surprise upon the plaintiff. There is no just pretence for this part of the motion. The lessors of the plaintiff were *184bound to be prepared, at their peril, to meet the question of adverse possession, as well as every other legal defence ; and it appears that they met this defence by a number of witnesses. To allow a new trial-merely that the party may multiply witnesses to a point already litigated, and when it does not appear but that such witnesses might have been discovered and had, upon the former trial, by ordinary diligence, would be against the settled principles and practice of the court. The decisions on this point are uniform and numerous. (Steinbach v. Columbian Insurance Company, 2 Caines’ Rep. 129. Smith v. Brush, 8 Johns. Rep. 84. Jackson v. Roe, 9 Johns. Rep. 77.)

I am, accordingly, of opinion, that the motion be denied.