
    The Northport Real Estate & Improvement Co., App’lt, v. Jeremiah Hendrickson, Resp’t.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed July 22, 1892.)
    
    1. Ejectment—Adverse possession.
    The common source of title conveyed the premises in dispute and after-wards conveyed the entire tract of which they were a part, and this latter deed was first recorded. The premises in dispute were several times conveyed and became united with another lot, no fence being between them. A portion of the lot in question is an orchard and a portion has been cultivated as a garden by defendant's predecessors, and some use of it by each of them for over twenty years was shown. Plaintiff claims the lot because included in the description of the entire tract under the deed first recorded. Held, that a verdict for defendant would not be disturbed.
    2. Same—Charge.
    Where the court has charged that plaintiff had the prior title and unless the proof established such acts of ownership as the statute defines for more than twenty years by defendant it was entitled to recover, a request to charge that a constructive adverse possession in plaintiff was not answered by a constructive possession in defendant is needless, and a refusal to so charge is not error.
    Appeal from judgment in favor of defendant, entered upon verdict, and from order denying motion for a new trial on the minutes.
    
      N. S. Akerly, for app’lt; Thomas Young, for resp’t.
   Barnard, P. J.

—The proof shows that both parties claim under the same title. In 1839 Jessie Bunce owned a tract of eighty acres of which the land in dispute is a part. He conveyed the lot in question by deed dated May 25, 1839, but acknowledged November 7, 1839, to Fannie and Amelia Bryant. On the 2d of November, 1839, be conveyed the whole farm to one S. P. Hart. Hart’s deed was first recorded on the 27th of December, 1839. The defendant represents the Bryant title. The plaintiff claims the premises because it is included in the description of the farm. In the Bryant deed of the disputed premises one of the boundaries on the south is a certain lot No. 10. No. 10 was owned by a separate owner until 1854, then the Bryant lot and No. 10 were united in one Samuel Bryant. Bryant sold lot 10 separate in 1862 to one Seaton and subsequently conveyed to him the disputed piece, and it has not since been disputed. There is an orchard in the rear of No. 10 which has been in the possession of the occupants of No. 10 since 1839. There was an occasional cultivation of a garden spot in the rear of No. 10 (north- of it). There was never any fence separating No. 10 from the rear of disputed lot. There was proof tending to show some use of the disputed property by each, for over twenty years. There seems to be no real question but that the defendant is right in his claim. The Bryant title is- oldest in date, and the deed to Hart of the whole farm is probably a mistake in not excepting the Bryant piece. That piece was the subject of repeated conveyances thereafter and a part of the same has been occupied as an orchard beyond dispute ever since. The verdict will not' be set aside unless some error was committed on the trial. The court charged the jury that No. 10 and the rear lot for the purpose of adverse possession constituted two lots, but that the orchard ground and the wood lot are the premises in dispute and were one lot, and that an occupation and improvement of a part would support a verdict for an occupation of the whole. Code, § 370. This section reads as follows, “ When a known farm or a single lot has been partly improved, the portion of the farm or lot that has been left not cleared or not enclosed according to the usual course and custom of the adjoining country is deemed to have been occupied for the same length of time as the part improved and cultivated.” The charge is therefore right; the defendant had a written title, and the jury were told that the plaintiff had the prior title, and that unless the proof established such act" of ownership as the statute defines for more than twenty years by the defendant, the jury were to find the verdict for the plaintiff. The request to charge, that a constructive adverse possession in plaintiff was not answered by a constructive adverse possession in defendant, was needless. The charge as given stated the true ground of inquiry.

Judgment should, therefore, be affirmed, with costs.

Dykman and Cullen, JJ., concur.  