
    Smith, ex dem. Teller, against G. & P. Lorillard.
    
      ALBANY,
    
    
      August, 1813.
    
    T. entered Son of tondin JYem-Tork,in 1769, on which he had built a house two or three years before, and continued m possession until his death, in 1775 ¡ and his family continued in possession afterwards, until they were expellpd by the British, in 17761 and no possession was taken of the premises until 1795, when L. entered on the premises, as a bona fide purchaser, and continued in possession, as owner, until 1810, when the heirs of T. brought an action of ejectment to recover the possession. It was held that the prior possession of T. was prima fade evidence of right, and that it was not necessary that the plaintiff should show eitiiev a possession of twenty years, or a paper title.
    A prior' possession for less than twenty years, forms a presumption of title, sufficient to put the tenant on his defence ¡ but it must appear that such prior possession of the plaintiff was not voluntarily relinquished, without the animus revertendi, and that the subsequent possession of the defendant was acquired by mere entry without any lawful right. _ _ .
    _ _ . Where the first possessor died, and a descent was cast, and the infant heirs were driven from the actual possession by a public enemy, the possession was considered, by the equity of the jus post. Mminii,ss revested in the heirs, on the removal of the hostile force.
    THIS was an action of ejectment, brought to recover possession of a lot of ground in Chamber-street, in the 6th ward of the city of New-York. The cause was tried before Mr. Justice Van Hess, at the Hew-York sittings, on the 12th December, 1811.
    The case of Smith, ex dem. Teller, v. Burtis <§• Woodward, reported ante, (v. 9. p. 174.) arose in an action of ejectment for a part of the ground claimed by the lessor of the plaintiff, under the same title, and the evidence given on the trial of that cause was again produced on the trial of this suit.
    Several additional witnesses as to the possession, both on the part of the plaintiff and of the defendant, were examined, on this trial, but, as the leading facts bearing on the point decided by the court, are stated by the chief justice, in the opinion delivered by him, it is unnecessary to detail the voluminous mass of evidence adduced as to the situation of .the land called the negroes’ burying ground, and as to the different possessions taken of parts of it.
    The defendants read in evidence a deed of partition of the negroes’ burying ground, dated the 6th January, 1795, between Henry H. Kip, Abraham I. Van Vleeck, John and Samuel Kip, of the first part, Samuel Breese and Aaron Burr, surviving executors and trustees of Samuel Bayard, deceased, of the second part; Theophilus Beckman and Elisabeth, his wife, only child and heiress at law of Vincent Matthews, by Elisabeth, his wife, of the second part; Isaac Van Vleeck, of the third part; and Daniel Denniston, of the fourth part.
    Also, a deed dated 6th October, 1796, from Henry H. Kip, Samuel Breese, Isaac Van Vleeck, and Daniel Denniston, to the corporation of the city of Hew-York, for a triangular piece of land or gore, part of the land allotted to the said Breese, Van Vleeck, and Denniston, by the said deed of partition.
    The defendant proved by Isaac Mead, one of the commissioners appointed to make partition of the negroes’ burying ground,that the same was distributed into lots, and divided into shares, according to the map which was produced, and the deed of partition, which contained a deduction of title to the several parties interested. The witness testified that improvements were made on the land immediately after the division. The defendants also read in evidence a deed from Aaron Burr and Samuel Breese, surviving executors, &c. of the last will of Samuel Bayard, dated, the 1st May, 1796, for the consideration of 560 pounds to Peter Jjorillard, one of the defendants, for the lot No. 15. being the premises in question, which deed was in the usual form of deeds from executors, containing no covenant, of seisin, &c.
    
      The defendants then submitted to the judge whether they had " B0* s^own enou§b to bar the plaintiff’s recovery. 1. By proof of an adverse possession for fourteen or fifteen years ; and, 2. By showing an adverse possession for twenty years. On the first point, the judge ruled that enough had not been shown by the defendants, and on the second question he declined giving any opinion, it being a mixed question of law and fact. The defendants excepted to the opinion of the judge on the first point.
    The defendants, in order to show a title out of the lessors of the plaintiff, gave in evidence an exemplification of a patent to Johannes Kip, Lucas Kiersted, and William Teller, dated the 10th April, 1696, from Governor Fletcher, the location of which they assumed as covering the premises in question.
    
      Charles I. Kip, a witness for the defendants,
    testified that he was eighteen years of age, and that about four years before his examination, Henry R. Teller called on the witness’s father, James H. Kip, and in a conversation, Henry R. Teller told the witness’s father that he claimed the negroes’ burying ground under a patent to Kip, Kiersted and Teller, from Governor Fletcher, and under William Teller, one of the patentees; that he claimed the whole, in right of survivorship of the said William Teller, or one third part thereof; and the said Teller admitted that the whole of the negroes’ burying ground was covered by the said patent, and said, that if the witness’s father would join with him, (Teller,) he wmuld gain a third of the patent; that a copy of the partition deed being shown to the said Teller, he said he was deprived of his right by it.
    The patent to Kip, Kiersted and Teller, recited’ that Anthony Colve, governor-general of New Netherlands, See. had by deed, dated the 14th October, 1673, granted and assigned unto Cornelius Van Bursum a certain parcel of land, lying on Manhattan Island, northwest from the wind-mill, beginning at the north of the highway leading to the Calkhook, See. and that John Kip, Luke Kiersted, and William Teller, had presented a petition, praying a grant or confirmation of the said parcel of land, and the patent thereupon grants the same to them and to their heirs and assigns forever.
    The defendants then gave in evidence the will of Cornelius Van Bursum, dated the 16th June, 1680, making his wife Sarah Bis universal heir. The will of Sarah Roeliff, dated the 29th July, 1693, by which she devises her estate to her several chil» «Iren, by her deceased husband Hans Kiersted, to wit, Roeloff, Blandina, Joachim, Lucas, Catharine, Jacobus and Rachel; and appointed Johannis Kip, Lucas Kiersted, and' William Teller, her executors, and overseers of her property, &c. '
    The defendants proved that the original grant from Anthony Colve to Cornelius Kan Bursum, recitecf in the letters patent above mentioned, was not to be found in the secretary’s office, nor any record thereof; but they produced a certified copy of the petition to Governor Fletcher for the patent of confirmation, which stated that, in 1673, Cornelius Van Bursum did obtain a grant or patent from Governor Colve, for a certain parcel of land, describing it as in the patent, “ which said land, by the death of Cornelius and his wife, had devolved upon the petitioners; and for the better confirmation of their title, they prayed,” &c.
    The defendants next gave in evidence a deed from Roeloff Kiersted to Johannis Kip, dated the 8th July, 1699, reciting, that Cornelius Van Bursum died possessed of a piece of land, (describing it as in the said patent,) which was granted by the honourable Anthony Colve, governor-general, by his deed, dated the 14th October, 1673, and whereas there is a confirmation of the said lands, since granted to the said Johannis Kip, Lucas Kiersted, and William Teller, in the right of themselves and the children of the said Cornelius Van Bursum, dated the 10th April, 1696, and whereas the said Roeloff Kiersted, as one of the children of the said Sarah, had a right to one eighth part of the said lands: and the deed then conveyed all the right, title, &c. of Roeloff Kiersted to the said one eighth part to the said Jokauris Kip. This deed was witnessed by William Teller and) Lucas Kiersted, two of the patentees named in the patent of confirmation, and by Jacobus Kiersted, as the subscribing witnesses.
    The defendants’ counsel then read in evidence the eleventh article of the capitulation of the 27th August, 1664, between the Dutch and English, by which it is stipulated, that “ the Dutch here shall enjoy their own customs concerning their inheritancesand the proclamation of Governor Andrbss, of the Sih November, 1674, in which it is declared, that the book of laws formerly established, and in force under his royal highness, is again confirmed, &c. It was then proved from Smith’s History ef New-York, (p. 72 and 73.) that the first colonial legislature met in Netv-York in 1691, in order to show when the first statute concerning wills was passed.
    
      The recitals in the letters patent from Governor Fletcher to Kip, Kiersted and Teller, with the evidence above stated, were relied upon by the defendants’ counsel as proof of the grant or-patent from Anthony Colve to Cornelius Van Bursum, and of the contents thereof, and ,thfe same, with the petition for the patent, the wills of Cornelius Van Bursum and Sarah Roeloff, and the deed from Roeloff Kiersted to Johannis Kip, were relied upon as evidence that the letters patent of confirmation were granted to, and taken by, Kip, Kiersted and Teller, as trustees, , in trust for the children and devisees of Sarah Roeloff, and not-in their own right, and that the trust had been executed.
    The defendants proved that Jacobus Kip was the eldest son of Johannis Kip, the patentee, by Catharine, a daughter of Sarah Roeloff; that- John Kip, the eldest son of Jacobus Kip, died a bachelor, and Henry Kip, his eldest brother, died about 16 years ago. He had six children, three of whom survived him, to wit, Henry H. Kip, the eldest, who died a bachelor, in 1798; John H. Kip, the next son, died about 10 days after Henry, leaving a daughter, now the wife of Lynde Catlin, and James H* Kip, now living on the negroes’ burying ground.
    It was also proved that Elizabeth, the wife of Daniel Dennis-ton, was the only child of Luke Kiersted, who was the only son of John Kiersted, who was the oldest son-of Lucas Kiersted, the patentee. Several witnesses were then examined as to the situation of the negroes’ burying ground, and the possessions on it-
    The counsel for the defendants next offered in evidence a deed dated the 11th of September, 1753, from William Teller, John Teller, Jacobus Teller, and Jacobus Stoutenburgh and Mary bit wife, to Mary Van Vléeck, and which, by an endorsement there’ on, was stated to have been executed by William Teller, the 21st of November, 1754, and Iiis execution of it appeared, by another endorsement, to have been proved before a master in chancery, by John Hertell, one of the subscribing witnesses, on the 5th of February, 1808. Herlell wras produced as a witness on the part of the defendants, and testified, that he was present and saw William Teller execute the deed in 1754, and that he saw Abraham Brasher, the other subscribing witness, subscribe it as witness; that both the witnesses lived with Henry Van Vleeclc, the son of Mary Van Vleeck; and who acted in behalf of his mother in the purchase of the property conveyed by the deed to her; that William Teller was not personally known to Mm, but he saw the person who so executed the deed several times afterwards, and he was called William Teller. That Mary Van Vleeck was in possession of a part of the negroes’ burying ground before and at the time of the execution of the deed, being an acre or more enclosed, extending from the pottery towards Broadway, with a pottery thereon, occupied by one Corselis under her. The witness also proved the death of Brasher, the other subscribing witness, in New Jersey, during the revolutionary war, and also his handwriting as a subscribing witness. On this proof, the deed was offered in evidence as the deed of the grantors therein named, but it was objected to by the plaintiff’s counsel as the deed of any other person but William Teller. The judge permitted the deed to be read, as a deed duly proved as to William Teller, and as an ancient deed with respect to the other grantors.
    The defendants having rested the cause, the plaintiff’s counsel read in evidence the original will of Johannis. Kip, one of the parties, dated 16th of September, 1702, and proved on the 4th of November, 1704. Several other witnesses were also produced as to the situation and possession of the negroes’ burying ground. One of them testified that he was born in 1769, and remembered that b Teller lived in a brick house fronting on Broadway, and on what was called the negroes’ burying ground ; that the witness left the city during the revolutionary war, and went to England; that he returned in 1791, and saw the ruins of the cellar of Tellers house, and took some bricks from it to assist in building a house; that a Mrs. Swart lived in the Teller house after the family had left it, and that she said she had been left in the house when Mrs. Teller went away, and that the British had driven her out of it. Maps of the city made in 1730 and in 1756 were produced by the counsel at the trial, and which were used on the argument. Several witnesses were then examined on the part of the defendant as to the situation of the possessions on the negroes’ burying ground.
    The last will and testament of William Teller, the patentee, dated the 25th of June, 1710, was read in evidence, by which it appeared that his children were William, John, Jacobus and Margaret. The defendants’ counsel also produced and read in evidence a deed, dated the 7th of June, 1766, from Colin Van Beider and his wife, Edward Stevenson and his wife, to Henry Kip, containing various recitals, and a deduction of title in the grantors to two eighths and one fourth of an eighth part of the land granted to Cornelius Van Bursum, &c. and conveying fe Henry Kip, his heirs and assigns forever.
    It was admitted that Henry K, Teller was baptized on the 14tk of July, 1765, and that he was in the city of New-York, in July, 1792. Several witnesses were (hen examined on the part of the defendant, and others on the part of the plaintiff, as to the several possessions on the ground called the negroes’ burying ground.
    The judge charged the jury, that neither party had shown a documentary title; that the plaintiff had shown an actual and undisturbed possession of the premises for 7 or 8 yeai-s, at least, before the war, which was sufficient to entitle him to recover, unless the defendants had shown an adverse possession for 20 years, or a subsisting title out of the lessors of the plaintiff. That there was no evidence of an adverse possession of the premises in question, for 20 years; for the possession of the Broadway lots and the . Kiersted lots were not to be considered as a possession of the premises in question.
    That the defendants had attempted to show a subsisting title out of the lessors of the plaintiff; 1. Under the patent to Kip, Kiersted Sr Teller ; 2. Under the deed to Maria Van Vleeck.
    That the patent vested in the patentees either an absolute estate in their own right, or an estate in trust; that if the patent bad vested an estate in their own right, and there had been no severance of the joint tenancy, the whole estate would have vested in the survivor; (Teller;) if there had been a severance of the joint tenancy, then each.of the patentees would have been entitled to a third. If it was an estate in trust, (and the defendants were precluded by the partition deed from contending that any other estate vested,) then it was incumbent on the defendants to show in whom ' each eighth was vested; and in proportion as that was shown, and ; no further, would the plaintiff be barred' of a recovery; that the defendants had not shown a title from Johannis Kip, one of the patentees, by descent; that his will which had been produced, had destroyed the descent which had been attempted to be proved; that if the jury believed that a regular title, by descent, had been proved from Lucas Kiersted for one eighth, and from Catharine Kiersted, for another eighth, (which he thought had been satisfactorily done,) that then there were six eighths of the whole to which the defendants had not proved any title in themselves, or out of the lessors of the plaintiff.
    That with respect to the deed of 1753, to Maria Van Vleecki, 
      >? the jury believed it to be a genuine deed, (and he thought íi ought to be so considered,) and covered the whole of the premises in question, and conveyed the whole of Teller’s claim, then the plaintiff could not recover; that it was1 for the jury to determine whether it was genuine or not, and if genuine, whether it covered the premises in question; that the partition deed produced by the plaintiff was no evidence of title; that it was a singular instrument stating pedigrees and deductions of title, which the defendant had not attempted to prove, except in the instances above mentioned.
    The jury found a verdict for the plaintiff for six eighths of the premises in question.
    On a motion for a new trial, the following points were stated by the counsel for the defendants.
    1. That the motion by the defendants’ counsel at the trial, that the plaintiff should be called on to give further evidence, ought to have been granted by the judge.
    2. That the plaintiff did not show any title or possession, to warrant a verdict in his favour.
    3. That the adverse possession of the premises, shown on the part of the defendants, was sufficient to have barred a recovery by the plaintiff, and that the decision of the judge on that point was erroneous.
    4. That the defendants showed a sufficient title to the premises, out of the lessors of the plaintiff, to bar the plaintiff’s re - covery.
    5. That the evidence offered by the defendants and rejected by the judge, ought to have been admitted.
    6. That the judge misdirected the jury.
    
      7. That the verdict was against law and evidence.
    
      S. Jones, jun. for the defendants.
    The plaintiff did not show a possession sufficient to carry the cause to the jury; and the motion for a nonsuit ought to have been granted by the judge. It was a mere naked possession, unaccompanied by any documentary title whatsoever. Such a possession for a less period than 20 years is not sufficient to entitle the plaintiff to recover. It is a maxim, in regard to the action of ejectment, that the plaintiff mus?: recover on the strength of his own title. The actual possession by the defendant is prima facie evidence of title against all the world; and he is not to be turned out of his possession, unless by the party who can show an actual right of possession, or right of property. To give this right of possession, there must have been. either a continued possession for 5 years by the disseisor, in case of a disseisin and a descent cast, or an uninterrupted possession ^or 20 years. No entry can be made on land within 20 years after the right or title has accrued  and from analogy, 20 years’ uninterrupted possession would be a good defence against the right °f possession.
    Possession is never presumed, but in favour of the person having the right. And no person can avail himself of a prior possession but him who has the right. The moment the possession of the lessor’s ancestor ceased, no matter from what cause, that moment there was an end of his apparent title; it was gone forever, unless it had continued for 20 years, so as to give the right of possession.
    Admitting that J. Teller took possession in 1766, though we contend that he was not in possession before 1768, or 1769, yet from 1-766 to 1776, is only 10 years. Now, if he can recover on an antecedent naked possession of 10 years, or for any period short of 20 years, he may recover on a possession of one year, or one month.
    
      
       2 Bl. Com. 195, 196. 3 Cruise's Dig. 368. 1 Inst. 266. a.
      
    
    
      
       Sess. 24. c. 183. a. 3. Runn. 14. Burr. 119.
    
    
      
       3 Johns. Rep. 388.
    
    
      
      
         3 Johns. Cas. 128.
      
    
   [Kent, Ch. J.

There is a case in 2 Saund. which seems to be against your doctrine.]

[T. A. Emmet So is the case of Bateman v. Allen, in Cro. Eliz. 347.]

In the cases of Allen v. Rivington and Bateman v. Allen, it will be found that the defendants entered upon the prior possessors and ousted them. Here the defendants entered on vacant land. Those cases, therefore, are not applicable. If the doctrine of the lessors is to prevail, a possession taken of vacant land and continued uninterruptedly for 19 years, may be destroyed by a prior naked possession for one year taken 50 years before.

In ejectment, the inquiry is not as to the title of the defendant. The issue between the parties is, whether the lessor of the plaintiff has a title to the possession, and the -whole burden of proof lies upon him. The plaintiff must show a higher and better title than that of the defendant. Now nothing is a higher title to land than actual possession, unless it be the right of possession. And the. plaintiff, in this case, is-bound to show such a right. If this is not tht rule of law, then a defendant in actual i2osse~sion must prove a legal title by deed against a person claiming on a mere antecedent naked possession: a doctrine extremely hard and inconvenient. The defendants entered into possession of the premises in 1795, as the true and legal owners, and have continued in the uninterrupted possession for above 14 years, and have made very valuable improvements, and are now called upon by the plaintiff to give up that possession, on no proof of title whatever, except a mere naked possession for a few years, taken 50 years ago. To induce the court to sanction such a doctrine^ there must be some cleat, decided, and inflexible rule of law.

In ejectznent the lessor of the plaintifF must have a right of en~ try. He must have the actual right of possession, or the right of property. Nothing short of this will give him a right to reeover, unless against a person entering by wrong. Coke defines the component parts of a title, and lays down the same rule. None of the cases decided in this court in which ejectrnenfs have been brought on the ground of prior possession, to be found in the reports, militate against the doctrine for which we contend. It will be found in all of them, that the defendants were intruders or trespassers.

The plaintiff, in this case, has shown no fraud, or force, or wrong, on the part of the defendants; no declarations or admissions by them of the claim of the plaintiff. Nor has the plaintiff shown any documentary evidence of title. On the contrary, the de fendants are bona fide purchasers, entering under a claim of title, and holding a continued possession, and making valuable and permanent improvements.

Will it be said that the party having died in possession and a descent cast, alters the case ? A wrongful possession acquires no force or validity from a descent cast, unless it has been so long as to amount by law to a right of possession, and so tolls the right of entry. A mere possessor cannot avail himself of a constructive possession; but must show an actual possession within 20 years and in the present case more than 20 years have elapsed since any actual possession by the ancestor of the lessors. Here was not n, recent possession, on which the defendants have entered, but an ancient possession taken 50 years ago. The defendants entered, as rightful owners, not as abators or trespassers„

Again, a mere possessor, without right, cannot avail himself of the fact of being driven out by a public enemy,' so as to claim the benefit of a legal or constructive possession, during the time of Ms ejection. This constructive possession is allowed only in favour of the person who was in possession with right. Nor can the lessors claim the privilege or benefit of infancy, for they were adults more than 20 years ago; and having suffered that period to elapse, the plaintiff cannot avail himself of that plea. In the year 1792, six years after Henry R. Teller came of age, he was in the city of New-York. It is stated by one of the witnesses that he was, in fact, an apprentice in the city in the year 1787. If he was too poor, as the witness suggests, to prosecute his claim, he was not Incapacitated to give notice of that claim. He might have asserted his rights at the period of his coming of agé, as well as 20 years afterwards.

Next, the defendants showed an outstanding title sufficient to bar the plaintiff. The patent of the 10th of April, 1696, though appearing, on the face of it, to grant an estate to the patentees in joint tenancy, we have shown to have been, in fact, a grant of an estate in trust for eight others; and that trust has been executed. Admitting that it was a joint tenancy in the patentees, still it was a title out of the lessors. Having shown that the original patent from the Dutch governor to Cornelius Van Bursum could not be found after the most diligent search, we had a right to rely on the recital in the subsequent patent of confirmation, and the petition of the patentees on which it issued, as evidence of the original patent. Where a deed is in the name of one person, yet if it can be shown that the consideration was paid by another, there will be a resulting trust for him. And a renewal of a lease by a guardian or trustee has been held to be for the benefit of the or cesto/ que trust. Then we contend that Kip, Kiersted and Teller were mere trustees for Cornelius Van Bursum and his heirs. By his will his estate was given to his wife Sarah, who afterwards made her will, and appointed these very three patentees her executors. Being executors, and having obtained a patent or grant of confirmation founded on the original grant to her husband, they must have held the estate in trust for her devisees. It may be objected that Mrs. Van Bursum was .not competent to make a will to pass real estate. But there was at that time no English statute regulating the subject, applicable to the colony of New- York ; and we must presume that it was made agreeably to the law of the colony. But if considered as declarative of the will and intent of the testator, it is sufficient. But the deed from Roelojf Kiersted, one of the children of Sarah Van Bur sum, to Johannis Kip, of the one eighth part of the lands, is conclusive evidence on this subject. And after so long a lapse of time the legal presumption is, that the trust has been executed in favour of the cestui/ que trust.

Hoffman and T. A. Emmet, contra.

The court, in the case of Smith, ex dem. Teller, v. Burtis & Woodward, (9 Johns. Rep. 197.) have decided the point as to possession. The court there said, “We may infer title from the ten years’ possession* sufficient to put the defendant on his defence.” And we contend* that this possession, in law, amounts to a presumptive evidence of a fee. J. Teller, the ancestor, entered on the premises as owner, and erected a house, which he occupied during his life, without acknowledging the right of any other person, and he died, leaving his wife and family in quiet possession. It is said, however, that the property afterwards became vacant and derelict'. But the family of Teller did not voluntarily abandon it; they were expelled by a public enemy, who took possession of it, and kept it, by right Of conquest; and by the treaty of peace of 1783, they were revested in the same title and estate as they held when they were dispossessed. If, then, the possession is to be deemed, by construction of law, as remaining in the lessors, it is prima facie evidence of a fee, and is conclusive against the defendants, until they show a better title. In Jackson, ex dem. Ludlow and others, v. Myers, and in Nase v. Peck, the same principle is laid down, that the prior possession is evidence of an estate in fee; and the vacant possession afterwards is deemed the possession of the person having the right.

The plaintiff, on the evidence of possession, was entitled to recover the whole or none. It is impossible, by any rule of law, that he should recover a part only. The prior possession set up by him, as evidence of right, must be taken as evidence of the whole right. The charge of the judge was, in this respect, erroneous. The jury, by their verdict, have made the defendants tenants in common with the lessors of the plaintiff. When the defendants showed tillo to a part, the plaintiff’s title by possession was gone, and he was bound to show a title to the part he claimed before he could recover.

[Kent, Ch. J.

We have often said that where a person dies possessed of land, it is prima facie evidence of a title in his heirs* by descent.]

Blaclcstone lays down the principle, that if B. the wrongdoer dies seised of the land, his heir has not only a bare possession, but an apparent jus possessionis, or right of possession» Runnington says, the “ law presumes the possession transmitted from the ancestor to the heir to be a rightful possession, until the contrary is shown; and, therefore, the mere entry of him who has the right will not be allowed to evict the heir.” Buller lays down the same doctrine. “If the plaintiff prove that A. was in possession of the premises in question, and that his lessor is heir to A. it is prima facie; for it shall be intended that A. had seisin in fee, till the contrary appear.” Talbot’s Case confirms the doctrine as to the effect of a prior possession, and descent cast, independent of the question of a disseisin.

The action of ejectment is, in truth, an action of trespass, to which an execution is added, giving the party prevailing the possession of the thing itself. You may try the tifie or not; but if the party does not think proper to show a title, he may try nothing but the right of possession. Prior possession is evidence of a fee; the lowest evidence, it is true; but unless rebutted by higher' evidence, it must prevail. The subsequent possession, when rebutted by this prior possession, which is evidence of a fee, cannot prevail. It is undoubtedly true, that the lessor in ejectment must recover on the strength of his own title; and we contend that the prior possession show'll is that title, and sufficient until the defendant show's a better title.

In Allen v. Rivingtonin, which there was a special verdict, it is said “ the matter of law was never argued, because it appeared upon the record that the lessor of the plaintiff had a priority of possession, and there was not any title found for the defendant.” “ And the priority of possession, alone gives a good title to the lessor of the plaintiff against the defendant, and all the world, excepting against the heir of the devisor.” And in Bate-man v. Allen, there was a special verdict in ejectment, and Williams, Serjeant, moved, “ that forasmuch as in all the verdict it is not found that the defendant had the primer possession, nor that he entered in the right or by the command of any who had title, but that he entered on the possession of the plaintiff, without title, his entry is not lawful.” And so all the court held, and judgment was given for the plaintiff.

It has been attempted by the defendants’ counsel to raise a distinction between the cases cited and the case before the court, on the ground that the premises in question were vacant when the defendants entered. It is true, that in common parlance, there may be a vacant possession; but the law knows of no vacant possession. On the death of Isaac Teller there was a descent cast, and an actual as well as a legal possession, until his heirs were turned out by the public enemy. The possession of the mother enured to the benefit of the heir, and the heir so seised died, and a descent was cast to his heir. Watkins, in a note to his edition of Gilbert’s Treo- . iise on Tenures, says: “As the heir has the right to the hereditaments descending, the law presumes that he has the possession also. This presumption may, indeed, like all other presumptions, be rebutted; but if the possession be not shown to be in another, the law concludes it to be in the heir; as the freehold is never considered as vacant, or in abeyance.” The lessor here, having the possession in law, had a right to reduce it to a possession in fact; or, in other words, had a right of entry, and therefore had a right to bring an action of ejectment. The entry of the defendants was an abatement. And supposing this to be a writ of right, we should stand in the same situation with the plaintiff in Nase v. Peck, who prevailed on the ground of his prior possession.

Then we have shown aprima facie evidence of title in the lessors sufficient to entitle the plaintiff to recover; and the defendants have shown no title in themselves, but, at most, a title to two eighths out of the lessors. They have not proved an adverse possession for 20 years. But the plaintiff has shown an actual possession for 10 years, and a constructive or legal possession for more than 10 years after, deducting the period of the war.

Then as to the title set up under the Van Vleeck deed of 1753. We contend, that on the face of it, it is not a genuine deed. There are erasures in it not noted, and it was proved 54 years after its execution. It has no pretension as an ancient deed, for possession did not accompany it. No account is given of it; and it is attended with suspicion. But admitting it to be genuine, it does not include the premises.

[Here the counsel examined, at great length, the location of the premises, and discussed the evidence adduced at the trial. The deed of partition and other deeds given in evidence by the defendants were criticised, and their effect, as contended for by the defenciants’ counsel, denied.]

B.'B. Ogdeú, in reply. By the statute of limitations, “no person shall make an entry into lands, but within 20 years after his right and title first accrued.” Now, in the present case, there is no pretence that there was a possession by the lessors, or then-ancestor, within' 20 years prior to the commencement of this action. It is laid down by Butter, that if the lessor of the plaintiff is not able to prove himself or his ancestor to have been in possession, within 20 years before action brought, he must be nonsuited. But it is contended on the part of the plaintiff, that there was a possession within 20 years, because the premises were in possession of Isaac Teller until his death, and, afterwards, in possession of his family, until driven away by the enemy; and that the possession afterwards must be presumed in law to continue in his heirs, until they were in a situation to assert their legal rights. To this we answer that there must be an actual, not a presumptive or constructive, possession within the 20 years. In Jackson v. Schoonm aker, the Chief Justice describes the kind of possession which is sufficient to toll the right of entry. ; “ There must be,” he says, “ a real and substantial enclosure, an actual occupancy, a possessio pedis, definite, positive and notorious.” Again, there never can be a constructive possession in favour of a person whose whole claim rests on mere possession. And hence the rule is, that where there is no actual possession, the law will presume the possession to be in him who has the right. The lessors, therefore, in order to avail themselves of this constructive possession, must first show that the legal title to the premises was vested in them. A constructive possession may aid a title to lands, but can never create one. A title in ejectment may be created by possessionbut then it must be a possession in fact for 20 years.

Again, it is said that Isaac Teller was in possession of the property for 10 years, and died in possession; but unless a descent cast tolls the right of entry, the heir stands on no better ground than his ancestor. And this court, in Smith, ex dem. Teller, v, Buriis ¿f Woodward, decided that the descent cast did not toll the right of entry, for there was no actual disseisin. A descent cast that does not toll the right of entry can have no effect against a bona fide purchaser in possession; though it has an effect against a mere intruder, for the law will not suffer- the pos? session to be changed. Gilbert spealcs of the heir of the disseisor, after descent cast, and Wallcins, in his note on this page, has constant reference to the heir of the disseisor. So Blackstone spealcs of the heir of the disseisor, and cites Littleton where he treats altogether of disseisors and abators. A descent cast • gives the heir the same right his ancestor possessed, as against an abator or intruder; but such descent operates nothing as against a person entering as a bona fide purchaser. Buller cites Salk, 421. and the case of Stokes v. Berry, in Saljc. confirms the doctrine for which we contend. Runnington, also, a few pages after the case cited by the other side, says the same. Buller lays it down that the plaintiff must show an actual possession within 20 years, or what, in law, is equivalent. “ Possession,” says Lord Mansfield, “ gives the defendant a right against every man cvho cannot show a good title.” The party, therefore, cvho seeks to change the possession by an action of ejectment, must first establish a legal title. This legal title must be either by deed, or by the right of possession, neither of which have been shown by the plaintiff; for he has not shown an actual possession within 20 years. The same rule as to a possessory title which applies to a defendant, must be applied to the plaintiff.

In the cases decided in this court, where a recovery has been liad upon a possession of less than 20 years, it will be found that the defendants did not pretend to have title, and were considered as mere trespassers or intruders. But the defendants cannot be considered in that light. They were bona fide purchasers, for a valuable consideration, from persons in possession and claiming title, and they have continued in the quiet and uninterrupted possession of the property, th#s fairly purchased, for 14 years. If the prior possession shown by the plaintiff was sufficient to entitle him to recover, then it was conclusive ; and it was not competent for the defendant to go into any evidence of title at all; for if the plaintiff showed such a possession as would entitle him to recover, it must be such a possession as gave him a good title in ejectment. Novr, that must be a possession that tolls the right of entry of him who has the legal right. And the right of entry being tolled, the defendant must be driven to his real action.

Again, if the plaintiff can recover on a prior possession of 10 years, against a person who has been in possession 15 years, must it not be on the weakness of the defendants’ title rather than on the strength of his own, contrary to a leading principle in the action of ejectment ?

Again, a right acquired by possession merely, never can entitle a pia;n(jjf jn ejectment to recover, unless the right thus acquired by possession would haVe enabled the plaintiff, while his possess*on continued, to have retained it against the lawful owner. If the plaintiff should now be restored to possession, on the ground of the prior possession of 10 years, would that be any defence in an action of ejectment brought against him by.the rightful owner? On what principle is it, then, that possession shall be a weapon of offence to a plaintiff, and not be a protection to a defendant.

In Demi v. Bernard, Lord Mansfield speaks of a possession of 20 years as giving a good title to a plaintiff in ejectment, thereby impliedly admitting that a possession for less than 20 years would not be a good title. A possession for 20 years is a good title to the plaintiff, for this reason only; that it is, by the statute of limitations, a good title for the defendant; and because it tolls the right of entry of the legal owner. By continuing in possession 20 years, he may defend his possession in an action of ejectment. And if he loses the possession, he may recover it again, because the right of entry of the legal owner being tolled, he alone has the title to possession. In Stokes v. Berry it is said, by Holt, Ch. J. that the plaintiff in ejectment may recover on a 20 years’ possession, because, like a descent, it toils the right of entry, and gives a right of posses-' sion. No possession for a less time than 20 years tolls the right of entry; and, therefore, in the opinion of Lord Holt, a possession short of 20 years would not be a good title for a plaintiff in ejectment.

In this view of the subject, one year’s possession is as good as 19 years $ that is, neither is good for any thing, either as title in a plaintiff or defendant, in an action of ejectment. • In Allen v. Rivington. plaintiff was in possession, and the defendant, entered upon him and ousted him, and showed no title. The defendant was a trespasser and intruder. So in Bateman v. Alien the plaintiff was in possession, and the defendant entered upon him without any title. But the defendants, bona fide purchasers, entering peaceably and continuing in the quiet possession, as owners, can never be regarded as trespassers or intruders. It is admitted that this is an action of trespass, and if so, the plaintiff must prove property in himself, or a right of possession, or actual possession,

Again, the defendants have showed title to two eighths, and must, therefore, be tenants in common with others; either with the lessors, or with some other persons. If with other persons, then the possession of the defendants must enure to the benefit of those other persons, their co-tenants in common, because the possession of one tenant in common is the possession of the other. Then if the plaintiff cannot recover the two eighths, neither can he recover the six eighths, or share of the other co-tenants, for the possession of the defendants and the other co-tenants is one and the same.

If the defendants were tenants in common with the lessors, then they, or those under whom they claim, must be tenants in common with Isaac Teller, for it is not pretended that they are tenants in common with the lessors, by virtue of any grant from them since the death of their ancestor; and if tenants in common with Isaac Teller, then his possession was for himself and his co-tenants.

Kent, Ch. J.

delivered the opinion ‘of the court. The most important point in this case is, whether the lessors of the plaintiff showed sufficient evidence of title to authorize a recovery.

They showed that in May, 1768, J. Teller, their ancestor, entered into possession of a house which he had built two or three years before on the negroes’ burying ground, and which had, previously to his entrance, been occupied by his tenant. That he had a fence enclosing the burying ground, and claimed it as his property, and pastured it, and kept the key of the gate leading to the ground, and took payment for the use of the ground, and that it was known and called by the name of his land and fence. That he continued in possession until his death in June, 1775, and his family continued in possession afterwards, and until the commencement of the troubles, (as one of the witnesses expressed it,) and which undoubtedly alluded to the invasion of New-York in 1776; and that then the family left the city and retired into the country, and the British army took possession of the house and lot, and during the course of the war, and while under the dominion of the British, the house and fences were destroyed. That the premises claimed are part of the burying ground so possessed by J. Teller, and except the occupation by the British troops, no possession adverse to the claim of the lessors took place, as to the land now demanded, until the year 1795.

These facts were,- upon the'trial, declared to be sufficient to warrant a recovery. They are prima facie evidence of right, an.l it is not necessary that the plaintiff in ejectment should, in every ease, show a possession, of twenty years, or- a paper title. A possession for a less period will form a presumption of title sufficient *° Pu* ffi® tenant upon his defence. This was intimated by the court in respect to this very claim, in the case of Smith v. Burtis & Woodward, (6 Johns. Rep. 218.) and a recovery was permitted in that case upon the same presumptive evidence of right. (9 Johns. Rep. 174.) A prior possession short of twenty years, under a claim or assertion of right, will prevail over a subsequent possession of less than twenty years, when no other evidence of .title appears on either side. There are many decisions of this court which look to this point. (Jackson v. Hazen, 2 Johns. Rep. 22. Jackson v. Myers, 3 Johns. Rep. 388. Jackson v. Harder, 4 Johns. Rep. 202.) It is, however, to be understood in the cases to which the rule of evidence applies, that the prior possession of the plaintiff had not been voluntarily relinquished without the animus reveriendi, (as is frequently the case with possessions taken' by squatters,) and that the subsequent possession of the defendants was acquired by mere entry without any lawful right.

That the first possession should, in such cases, be the better evidence of right, seems to be the just and necessary inference of law. The ejectment is a possessory action, and possession is always presumption of right, and it stands good, until other and stronger evidence destroys that presumption. This presumption of right every possessor of land has, in the first instance, and after a continued possession for twenty years, under pretence or claim of right, the actual possession ripens into a right of possession which will toll an entry. But until the possession of the tenant has become so matured, it would seem to follow, that if the plaintiff shows a prior possession, and upon which the defendant entered without its having been formally abandoned, as derelict, the presumption which arose from the tenant’s possession is transferred to the prior possession of the plaintiff, and the tenant, to recall that presumption, must show a still prior possession, and so the presumption may be removed from one side to the other, toties quoties, Until one party or the other has shown a possession which cannot be overreached, or puts an end to the doctrine of presumptions founded on mere possession, by showing a regular legal title, or a right of possession.

It is stated in Jenkins (Cent. p. 42.) that “ the first possession, without any other title, serves in an assize for land,” and the assize, like the ejectment, was a possessory action. In Bateman v. Allen, (Cro. Eliz. 437.) it was ruled that the plaintiff was entitled to recover in ejectment, -when it was found by special verdict, that the defendant had not the first possession, nor entered under title, but upon the plaintiff’s possession. In Allen v. Rivington, (2 Saund. 111.) the decision is still more strongly and pointedly in favour of the force in a prior possession. A special verdict was taken in ejectment, but Saunders adds, “ that the matter of law was never argued, because it appeared upon the record that the lessor of the plaintiff had a priority of possession, and there was not any title found for the defendant. And then the priority of possession alone gives a good title to the lessor against the defendant, and it was adjudged for the plaintiff.”

In the present case, there was peculiar force attached to the prior possession on which the plaintiff relied. There was a descent cast during its existence, and the infant heirs of the ancestor were driven from the actual possession by a public enemy, who destroyed the improvements on the property. According to the equity of the jus postliminii, the law revested the possession in the heirs on the removal of the hostile force. Ouster by the enemy ought not, of itself, to work, in legal contemplation, a discontinuance of possession. The possession was, by construction of" law, in the heirs of J. Teller, until an actual adverse entry in 1795, upon that constructive possession.

This testimony being sufficient to entitle the plaintiff to recover, what did the defendants produce in opposition to it? They showed no prior possession, nor did they show a subsequent adverse possession of above fifteen years, nor did they show title in themselves. The effect of the evidence was to show a subsisting title out of the plaintiff; and if the deed of 1753, to Mary Van Vleeck, was not genuine, or, if genuine, if it did not cover the premises, (and this was the better conclusion,) the defendants did not succeed, unless it be as to two eighths of the premises, and for that portion of them the verdict was not taken.

The motion to set aside the verdict ought, therefore, to be denied.

Motion denied. 
      
      
        Allen v. Rivington, 2 Saund. 110.
     
      
       Runn. on Eject. 10-14. Burr. 119.
     
      
       Co. Litt. 266, a.
     
      
       3 Johns. Cas. 108, 128, 118. 2 Johns. Rep. 22. 4 Johns. Rep. 202.
     
      
      
        Prec. in Ch. 31. 1 Atk. 59. 2 Atk. 150. 257. 2 Vent. 361.
      
     
      
      
        2 Term Rep. 695. 1 Term Rep. 758. 7 Term Rep. 2. Bull. N. P. 110.
     
      
       3 Bl. Com. 176—178.
     
      
      
        Runn. on Eject. 12.
     
      
      
        Bull. N. P. 103. 109. Salk. 42l.
     
      
      
         8 Co. 101.
     
      
      
         2 Selw. N. P. 618.
     
      
      
         2 Saund. 111.
     
      
       Cro. Eliz. 437.
      
     
      
       7 Term Rep. 786. 3 Wils. 516.
     
      
       Gilb. Ten. 21. (4th edit.) n. 20. p. 370.
     
      
      
        Bull. N. P 102. 1 Burr. 119.
     
      
       2 Johns. Rep. 230.
     
      
       3 Johns. Rep. 388.
     
      
       2 Johns. Rep. 234.
     
      
       9 Johns. Rep. 197.
     
      
      
        Gilb. Law of Tenures, 21.
     
      
      
        Bull. N. P. 103.
     
      
      
        Burr. 2487.
     
      
      
        Cowp. 595.
     
      
       2 Salk. 421. 2 Ld. Raym 741.
      
     
      
       2 Saund. 111.
     
      
      
        Cro. Eliz. 437.
      
     