
    Jackson, ex dem Hardenberg and Wife, and Hasbrouk and Wife, against Schoonmaker.
    The freeholders and inhabitants of the town of Rochester, were not made a ■A deed from the saffitown, dated in 1714, was held to be valid, though the grantors were not trustees in that I7l7,therebe-es evidence in the date, fake1 in the' date does not a deed. Where the conside-body copo-rate by tfce patent to Beekman and others ini 703. ration of a deed is expressed to be for a certain sum of money, in hand paid, without mentioning any sum.it is a sufficient considera! ion. Proof of a deed, by a1 surviving grantor, in 1750, who swore that the other grantors were dead, and had executed the deed, was. held-sufficient in being an ancient deed, and prior to the act of 1771, prescribing the mode of proving deeds in the colony of New-York.
    To make out an adverse possession in ejectment, the defendant must show a substantial enclosure, an actual occupancy, definite, positive, and notorious; it is not enough to make what is called a possession fence, merely hy felling trees, and lapping hem one upon another round the land.
    This was an action of ejectment for land, in the town of Rochester, in the county of Ulster. The cause was tried before Mr. Justice Tompkins, at the Ulster circuit, the 18th of June, 1806.
    At the trial, the plaintiff produced a deed from Leonard Cole to Josaphat Dubois, dated the 30th of October, 1751, for certain lands therein described in fee. Dubois died during the French war, leaving three children, two of which Cornelia and Catharine, are lessors of the plaintiff; the other died without issue. By his last will, dated the 4th of September, 1757, J. Dubois devised his es- * tate to his wife, for life, and after her death, to his chil-j j equal parts, and if either died without issue, to 1 r 7 . 7 the survivors or survivor of them.
    The land described in the deed to J. Dubois, was locate(] fey a surveyor, who comprised within it the seven acres possessed by the defendant. The father-in-law of defendant cleared the premises in question, in 1786, and the fences remain as they were placed at that time ; the defendant’s father-in-law kept possession until his death, and the defendant has been ever since in possession of the premises in question, containing about seven acres surrounded with wood.
    The defendant proved, that in 1774, there being arumour of the plaintiff’s claim, the proprietors, under the Groote transport tract, enclosed the part which they understood was claimed, by a possession fence, which was made by trees felled, and lapping one upon another, and that this fence has ever since been kept up. A patent was produced, dated the 25th of June, 1703, to certain persons therein named, as trustees for all the freeholders and inhabitants of the town of Rochester. It was proved by the town clerk, and by the records of the annual election of trustees, from the date of the charter to that day ; that the freeholders and inhabitants of Rochester, had annually chosen three trustees, and used to keep and use a common seal, and recorded all conveyances by the trustees of the common lands, and that the town-records had been always deemed conclusive evidence of the acts of the trustees. It was proved by these records# which were objected to, but admitted by the judge, who were the.trustees in 1729 ; and a deed from them under their corporate seal, dated the 1st of June, 1730, to Philip Dubois, under whom the defendant claimed, was read in evidence. The defendant’s title was then deduced by sundry mesne conveyances from P. Dubois, and by a location of the land described in them, including the premises in question.
    The defendant also produced the record of a deed, dated the 18th of November, 1714, from the trustees of Rochester to Leonard Cole, jun. for the land sold to J. Dubois in 1751.- It was expressed to be in considera, tion “ of a certain sum of money, of the colony of New_ York, to them in hand paid,” without mentioning any sum. This deed was proved the 12th ofDecember, 1750 before a judge of the county, by the acknowledgment of one of the grantors, and by his oath, that the other grantors, who were dead, had executed it as trustees, and it was recorded the same day in the records ot the county. The grantors style themselves trustees of all the lands of the town of Rochester. This was admitted to be the same deed under which the plaintiff's title was derived. It was further shown, from the records ofthe town of Rochester, that the grantors in the deed to Leonard Cole, were not trustees on the 18th of November, 1.714, though they were in 1717.
    Under the direction of the judge, the jury found a verdict for the plaintiff.
    A motion was now made to set aside the verdict, as against evidence, and for the misdirection of the judge. The principal questions were,
    1. As to the validity of the deed to Leonard Cole, sen.' in 1714.
    2. As to the adverse possession ofthe defendant.
    The cause was argued by Sudam and Fisk for the plaintiff, and L. Llnvndorf and Fan Vechten for the defendant.
    The points which arose on the argument arc so fully considered in the opinion delivered by the court, that it is scarcely necessary to state the arguments of the counsel.
   Kent, Cb. J. delivered the opinion of the court.

This case presents two points : 1. The validity of the plaintiff’s title, as deduced under the deed from the trustees of Rochester to Leonard Cole, bearing date the 18th of Novmber, 1714.

2. The weight of the defence of adverse possession.

1st. The deed to Cole was admissible in evidence, asa competent and valid deed. There is no colour for the suggestion, that the freeholders and inhabitants of Rochester were incorporated as a body politic, by the patent of 1703. That patent is in the usual form of a grant, in fee, to Colonel Beckman, and two other persons as joint tenants. ■ The patent, however, declares' that the grant is to them and the survivors, or survivor in trust, for the freeholdei's and inhabitants of Rochester, who are annual- . , ly, on the first Tuesday in, June, to elect three trustees, to whom the lands are to be conveyed annually by the trusfees of the preceding year, and so the lands are to be continued from one set of trustees to another, until they shall be disposed of, and each set of trustees are to hold the lands in fee, and with full power to manage, and to alienate the same. All that was, therefore, said upon the argument, about the necessity of showing that the deed to Cole, was by the corporate name, and under a corporate seal, is entirely inapplicable. The only question is, whether the' deed in question was made by the grantors during the time that they were invested with the fee of the land. It appears by the minutes of the proceedings of the trustees of the town of Rochester, introduced by the defendant, that the three grantors in the deed to Cole, were trustees in 1717, and that two of them were never trustees, except in that year, and the deed is from them, in the character of trustees. This fact is decisive, that the deed was executed in 1717, .and that the date of 1714 is a mistake. This might easily have arisen, and the date is the less to be regarded, as it is in figures. It lay with the defendant to destroy the operation of the deed, for prima facie it is to be taken what it purports to be, a deed from the trustees of Rochester. It must be admitted as a correct and sound principle, ut fes magis valeat quam yoereat, that if the three grantors were at one time jointly seised in fee, and competent to convey as the deed purports, their deed is to be deemed to have been made at such time, unless the cqntráry be shown by unequivocal proof. A deed shall never be laid aside asvoid, if, by any construction, it can be made good. (Hob. 277.) The date is no part of the substance of a deed, and not necessary to be inserted. The real date of a deed is the time of its delivery.

The consideration in the deed was sufficiently expressed. It was a certain sum of money, of the colony of New Yorlc, to them in hand paid ; this is enough. The case of Fisher v. Smith (Moore, 569, case 777.) is in point. It was adjudged in that case, that if a deed say for a competent sum of money, this is sufficient without specifying the sum, and the parties shall not be admitted to aver or prove against this express assertion in the deed, that no money was paid.

The deed derived sufficent authenticity from the proof, which was by the acknowledgment and oath of the only surviving trustee in 1750, before a county judge, and which the judge deemed proof sufficient to authorize the deed to be recorded. It is true, as was observed by the plaintiff’s counsel, that until 1771, the mode of taking the proof of deeds was rather loose and unsettled, and this appears from the preamble to the act of the 16th of February, 1771. The practice in the colony before that time is undoubtedly to be, regarded on a question touching the authenticity and validity of an ancient deed, and the deed before us is to be classed under that denomination.

This deed being regarded as valid, it conclusively establishes a title in the lessors of the plaintiff to the seven acres possessed by the defendant.

2d. The other point in the cause relates tothe adverse possession set up by the defendant. Yhe possession fence as it was termed, which was run round the large tract in 1774,1 db not consider as an adverse possession, sufficient to toll the right of entry of the true owner, after twenty years. This mode of taking possession is too loose and equivocal. There must be a real and substantial enclosure, an actual occupancy, apossessio pedis, which is definite, positive, and notorious, to constitute an adverse possession, when that is the only defence, and is to countervail a legal title. If this possession be laid out of view, the possession of 1785,' or 1786, was not a possession of twenty years, before the commencement of the suit. The motion for a new trial is therefore deni- , . . ed.

Judgment for the plaintiff. 
      
      
         If a person seeks to avoid a deed on the ground of adverse possession, at the time of its execution, such adverse possession must be clear-Iy.made out by positive facts, and should not be left to inference or conjecture. Wickham. q. t. v. Conklin 8. John Rep. 220.
     