
    Jackson, ex dem. Wright and others, against Dieffendorf and Zoller.
    ALBANY,
    August, 1808.
    where W ha ving been turn-possession of^ lot of land, under a judgment by default afn^action’ of ejectment by d. ^ftcrw&rcls brought his aciaon eJect" ment to recover the possession, ‘ ligand those under whom he claimed, had tua^and^qutet possession of question",’'from to 1803x> whenhewasso ejectedbyD.it sTclaposse^sion was sufficient, and con-elusive evinotwithstand-’ ing. that by a of^the S™act| anc* according to a partition deed of 1744, question‘were really included in the bounds of an adjoining lot, released to D. by the deed of partition under which those under whom W. claimed originally took possession, and although W. had suffered a judgment by default against him. Where a location is made under a deed and survey, and • ah undisturbed possession held according" to such location for 38 - years,' it shall prevail, though, by a subsequent survey, it should appear, that such location was not accurately made.
    THIS was an action of ejectment, for 23 acres of land, The case stated that the patent of Hartman Windecker and others, was dated the 12th of November, 1731, and that in 1743, it was divided into eleven lots, and numbered - ' ... , . . irom one to eleven, inclusive ; that partition deeds were executed in 1744 by the proprietors, by which lot No. 2 was released to Windecker ; that he on the 28th of March, • 1754, conveyed 25 acres of the south end of lot No. 2 to his daughter Gertrude, who married jacobus Pickard, the 28th of October, 1765 ; that Pickard and his wife conyeyed the 25° acres to Frederic Blank, who devised the same to House and Wright, two of the lessors of the . plaintiff; that in 1765, Blank took possession of the premises under the deed, and such possession continued in him, and in others claiming under him, until May, 1803, when Wright, the tenant, was turned out of possession, by a writ of of possession, under a judgment by default, . ' \ . jo j ’ m an action of ejectment, in favour of the present defendants, against Wright.
    
    ■ It was admitted that the defendants are owners and „ , _ _ . . . , , . , possessors or lot Mo. 3, m the said patent, which, according to the testimony of Cornelius C. Beekman, a surveyor, and the partition deeds, included the premises.
    . The question on the case was, whether the plaintiff was entitled to recover ?
    
      Van Vechten, for the plaintiff.
    
      Cady, for the defendant.
   Van Ness, J.

delivered the opinion of the court. Shaft a possession of 38 years be disturbed, because, from a recent survey, it appears not to correspond with the parRti011 deeds executed 60 years before ? Shall not the parties to that partition, and all those who claim under them, be concluded by so long an acquiescence ? It is unquestionably the true rule, and every legal presumption, every consideration of policy requires, that this evidence of right should be taken to be conclusive. A location made in 1765, and probably, in exact conformity to the survey made on the partition in 1744, and quietly suffered to be continued by the proprietors of the adjoining lot, until 1803, is, and ought to be, final and conclusive. These circumstances furnish the best and most satisfactory evidence of the true line of division between the two lots. This general doctrine will not be denied, and the only question is,' as to the application of it to the present case. What is to be the effect upon this title, on the recovery in ejectment by default, and an entry pursuant thereto in 1803 ? This is the real point in dispute between the parties. x

The recovery, in 1803, against the lessors of the plaintiff, does not conclude them from setting up this evidence of title. The amount of a recovery in ejectment is accurately and forcibly stated, by Lord Mansfield, in the case of Atkyns v. Horde, (1 Burr. 114.) It is a recovery of the possession (not of the seisin or freehold) without prejudice to, the right, as it may afterwards appear, even between the same parties. He who enters under it, in truth and substance, can only be possessed according to right. If he has a freehold, he is in as a freeholder. If he has a chattel interest, he is in as a termor. If he has no title, he is in as a trespasser. If he had no right to the possession, then he takes only a naked possession. This is the obvious and established ■ construction of the nature and effect of a judgment in the action of ejectment. It follows, therefore, that Wright, one of the present lessors of the plaintiff, lost the possession only, without prejudice to the right. The right under the location, after the possession and acquiescence therein, remains in the lessors of the plaintiff, and is not impaired by the recovery in 1803.

The plaintiff must, therefore, have judgment.

Yates, J. and Thompson, J. not having heard the argument in the cause, declined giving any opinion.

Judgment for the plaintiff,  