By the Court,
Savage, Ch. J.On the point of adverse pos-
session, the judge decided that the defendant had not shewn enough. According to the repeated decisions of this court he decided correctly. The defendant produced no conveyance from any body for lot No. 60; and it must be considered settled, ifT a series of decisions for thirty years can settle a question, that ! where the occupant of land produces no written title, but relies solely on possession with an assertion of title, he can retain so much only as he had under actual improvement, and within a substantial enclosure. 1 Johns. R. 158. 2 id. 234. 1 Cowen, 609,285. The case of La Frombois v. Jackson, it was urged on the argument, extended this doctrine to bare occupancy. Chancellor Jones says: “The actual possession and improve*66ment of the premises, as owners are accustomed to possess-! anc¡ jmpI«0Ve their estate, without any payment of rent or re-| cognition of title in another, or disavowal of title in himself,! will, in the absence of ail other evidence, be sufficient to raise \ a presumption of his, the occupant’s, entry and holding, as ab-l solute owner.” 1 do not understand Chancellor Jones as in-( tending to impeach the rule, which had been frequently reeognized in this court as to the extent of an adverse possession, where there is no holding under a paper title. Indeed he could not, for that question was not raised in that case ; what was said was out of the case and obiter. The defence of adverse possession, therefore was not sustained.
Was enough shewn to warrantee presumption of a conveyance, and to justify' the judge in submitting that question to the jury ? Presumptions are often indulged for the sáke of quieting possessions. Presumption has been defined to be an inference as to the existence of a fact not known, arising from its connection with facts which are known. It is founded upon a knowledge of human nature, and the motives which are known to influence human conduct; particularly, the disposition of man to enjoy what belongs to him. There are facts in this case which are not altogether consistent with the fact of Rouse’s being an intruder. He was in possession, claiming title to the whole lot and two others, making in all 240 acres, lot No. 60 lying in the middle. It is not pretended that he did not own the lots lying on either side of No. 60. He improved the 'whole as one farm, though the 25 acres in question were never enclosed by him. The country was new, and it was probably not necessary, for the purposes of good husbandry, to clear and enclose more than he did. He built a house on No. 61 and a barn on No. 60. The lots were narrow and long. Is it probable that a man of ordinary prudence would so have located his farm and placed his buildings, knowing that the centre of his farm belonged to another, and was liable to be taken from him ? He went into possession soon after the patent was issued and the survey made. On the other hand, Constantine, the patentee, is said to have entered the service of the ">.» ■■ “Vr the revolutionary war, and u-have n ob; hough Ferria'll es no v-! *67Siome in 1798 or 1799 ; when at home, he resided within 60 miles of the premises in question, and knew that Rouse was in possession of this lot. Is it probable that he would have . permitted Rouse to have enjoyed this property unmolested, while he was obliged to resort to the wilderness for a living, leaving his wife with her friend ? When to these circumstances / is added the fact, that at Rouse’s death the orginal patent Was found among his papers, it seems to me these were facts and' circumstances which would have justified a verdict in favor ofl the defendant, on the presumption of a conveyance*-. Suppose» j under these circumstances, the jury had found a verdict in favor of the defendant, would this court have set aside the verdict as against evidence ? If not, then clearly the evidence should have been submitted to the jury. ’
The third point of the the defence, viz. that title was shewn out of the lessor, rested principally, if not entirely upon the credibility of Ferriall. The court ought not too freely to set aside a verdict because against the weightj of evidence, but sometimes justice demands it. In this case there was the positive testimony of Ferriall on one side; on the other, an attempt to impeach him, and evidence that Constantine'was not at home from before 1790 till 1820. If that were so, then Ferriall must be incorrect. It was for the jury to decided where the pre- - ponderance lay.
On the case, therefore, I am of"opinion that a new trial cannot be granted, on the ground that an available adverse possession was shewn, nor that the verdict was against the weight of evidence ; but I think the judge erred in refusing to submit the evidence to the jury, which would have justified them in presuming a conveyance accompanying the patent. But if this were doubtful, there can be no question but that a new trial should be granted on the ground of surprise. From the conversations had with the plaintiff’s attorney on the subject of a conveyance for lot No. 60, and from his silence as to the disposition he had made of it the defendant and his counsel had every reason to suppose that the plaintiff’s attorney had the deed in his possession, and would produce it.'
New trial granted, costs to abide the event.