delivered the opinion of "the court. The important inquiry in this cause is, as to the character, duration, and effect of the defendant’s possession ; and it involves the following questions : 1st. Whether the premises have been held adversely for 20 years before suit brought ? and, 2d. If adverse, (although not for that period,) what the legal operation of such possession is, with regard to the conveyances introduced by both parties, as evidence of title ?
The deed of September, 1791, from Reuben Van Gelder to Stephen Thorne, for the whole lot, cannot control the possession of the defendant, and of his father, so as to make it the entry and possession of a tenant in common, merely because it gave title to no more than one ninth part of the lot.
The grantor in this deed states himself to be the heir of the patentee, and the conveyance is for the whole lot; and it may well be inferred, that Thorne, at the time, supposed that it gave *412him title to that-extent, and, that he •purchased accordingly* It afterwards appearing that Newieji was a younger son could not alter the naturé of the defendant’s possession,' If Reuben had: been the heir at law of Jacob Van Odder, the soldier, Thorne, would have held the whole lot- under the statute of the 5th of April, 1803, as -a. bona fide purchaser*
The conduct of Reuben, subsequently to the conveyance made by him, confirms, in a great degree,- what has been stated to have' been the intention of all the -parties when it was executed.The consideration, received was .divided, between all the children. They, therefore,., supposed the sale made by Reuben sufficient to pass the entire lot,. or’ they never would have accepted of their proportion of the consideration received for it,; and Thorne, supposing himself to have obtained a good title, did not, hesitate to dispose of it to a person who entered as owner of the whole lot.
. If, therefore, it is conceded,'.that deed .conveyed, ones ninth part only to Thorne, and that if he had entered under it, suc-h. entry would have been according to his right ms tenant in-common, and that his co-tenants couldnot have been disseised,, because the possession would not have been adverse to their rights; still, this, cannot change the character of the defendant’s possession, nor the previous possession of his -father*Neither of them had any, knowledge of this deed* The father-purchased, by warranty deed, from Thorne, who represented himself to be the sole proprietor of the lot^ As early as July or August, 1792; while the defendant’s father was on the lot,' Thornewent to view it, and avowed himself to be the owner, and sold it for 140b • From that period,'in strictness, the adverse possession.commenced, At all events, it commenced from, the date of Thorne's, deedto the elder Smith, Which Was in- February^' 1794. it is evident, therefore, that the doctrine, in relation to the possession of tenants in common, does not -apply to this case.- It might as:weil be urged as applicable, to a conveyance made by a stranger, of any lands held in common. And it will not be questioned, that the possession of a purchaser under such a deed. given without right on the part of the grantor, would, notwithanding, be adverse to the rightful owners, although held by them in common. But, in the present-case,, ijo such tenancy did, in fact, exist. The patent had issued to a deceased soldier; and it .may well.be questioned, whether an equitable ,title, even> *413could pass to his children. The statute to regulate descents as to property, in that situation, was not passed until nine years subsequent to the sale made by Thorne to the father of the defendant; so that the possession taken by him must.be deemed adverse to all the world. (Jackson v. Wheeler, 10 Johns. Rep. 166. Jackson v. Foster, 1.2 Johns. Rep. 490.)
It is not stated in the case at what time this suit was commenced, but the plaintiff’s counsel, in the course of the-argument, mentioned, that it appeared from the files in the clerk’s office, that the. declaration was, returnable in January term', 1812. If that is so, the possession has not been adverse for a period sufficient to bar, the plaintiff’s right to recover on that ground; for, before Thorne went to view the lot, it is not pretended that Smith claimed it, or that he held it in the right of any one.. He, doubtless, during that period, possessed it as a mere intruder; but the adverse possession, subsequent to February, 1794, when he had purchased it from Thorne, who then assumed to claim the whole lot, and having taken his warranty deed, was sufficient to defeat the conveyances obtained by William Preston in 179,8. The conduct of Thorne, afterwards, could not alter the operation of this possession. There is no evidence that. Smith-had any knowledge of it; .and such conduct may well be attributed to the interference of Preston with the title, ■ because the lot had been conveyed by a warranty deed to the elder Smith,' so that Thorne was interested in securing Smith's possession. The deeds, then, from William Van Gelder, Jacob Van Gelder, and ■ Elijah Van Gelder, to William Preston, of the 15-th -of March, 1798, and of the other children to. him, dated the preceding February, being rendered inoperative, the plaintiff, of course, cannot be benefited by the demises of William Preston, John Matthews, Robert Morris, and Garrit Wendell, and the-Conveyances, subsequently executed by all the-children to Reuben, must enure to the benefit of the defendant, who held under Reuben, through Thorne ; because the facts in the case sufficient-: ly show, that those conveyances were obtained.for the purpose-of granting or securing Thorne's tide under Reuben ; .and. Smith' being Thorne's grantee, he and those claiming, under him, .had a right to protect themselves, under a title thus obtained, in-the-same manner, as though he had purchased from’ the children-himself. It is an established rule of, law that a party in possess Sion claiming title, may purchase in an outstanding -title. (Jack- > *414son, ex dem. Humphrey, v. Givan, 8 Johns. Rep. 139. 1 Johns. Cases, 81. 5 Johns. Rep. 489, 8 Johns. Rep. 479. 12 Johns. Rep. 207.) There, therefore, can be no recovery on the; dé* mise of the other children of the patentee, as, they have parted with their right in the premises-to Reuben, which, as before stated, enures to, the benefit of his grantee and those claiming under him. The defendant is entitled-to judgment.
Van Mess, J., dissented.
Judgment for the defendant.