delivered the opinion of the court. It is scarcely necessary after so many decisions upon the points arising in this case, to do more than briefly state the facts, and refer to the cases decided.
Peter Elsworth, the patentee of the lot, of which the premises in question are a part, was an officer in the revolutionary war, in the line of this state, and as such entitled to a grant of bounty lands ; the patent to him was a fulfilment, on the part of the state, of the engagement to give the lands.
Peter Elsworth died without issue, leaving his father and a brother Theophilus ; the defendant has deduced a regular title under him, if he was seised as heir of the patentee.
In the case of Jackson v. Howe, (14 Johns. Rep. 406.) Jackson v. Phelps, (3 Caines, 62.) and Jackson v. Winslow, (2 Johns. Rep. 80.) this court decided, that by the act of the 5th of April, 1803, the titles to the military bounty lots were vested in the officers and soldiers, at the time of their respective deaths, without reference to the period of issuing the letters patent.
It follows, then, that Peter Elsworth was seised of the lot when he died, and might devise it. But the act regulating descents, adopted by the act of the 5th of April, 1803, in reference to their lands, would also vest the lot in William Elsworth, as heir to his son, the patentee, for the lot was not held by bona fide purchasers or devisees under Theophilus, on the 5th of April, 1803.
The lessors of the plaintiff, Eliza Evertson and Sarah Roosevelt, are the devisees, and also the heirs at law of Cornelius C. Roosevelt. The adverse possession at the time of his devising, though it invalidates the devise, does not prevent the descent.
Judgment for the plaintiff.