
    Jackson, ex dem. Banyar and others, against Willson and others.
    NEW YORK,
    May, 1812.
    A patent was granted, in 1761, shichincluded* ^also lands granted dated inam7¡ pateín-ecited the first, and tors of the's’ewhohadmadc der^theffirst" mode a partilands held unexcepting0^ lots, which were included within the thenfirsteSpa-
    In an action of ejectment, chdme'd^the the patent^of 1761, and the defendants claimed to who "claimed of'the^áten* tees, named in that patent.
    It was held, that the recital of the former being ofatent’ ticuiai-factjdied^'estopped from denying the existence patent; that that it was a -t“tentir0f sufficient to prove that he held the two lots under that patent; the omission to divide the two lots, being evidence of the sense of the proprietors of the second patent, that they did not claim those, lots under it.
    The material facts in the THIS was an action of ejectment. The material facts in the case are as folows.
    At the trial, before Mr. Justice Van Ness, the lessors of the plaintiff gave in evidence letters patent, dated July, 1761, to ^saac Sawyer, Jonathan Wells, and fifty-nine other persons, commonly called the Pittstown patent: a release, dated 7th Septemher, 1761, from Joseph Wells and forty-six others, patentees, °f their undivided right to Isaac Sawyer, Goldsbrow Banyar, other persons, under whom the lessors claim the premises in question; a deed of partition dated the 26th May, 1763, between the last-mentioned six persons, whereby they made partition of the lands contained in the boundaries of the Pittstown patent, pursuant to a map thereunto annexed, excepting lots No. 53. and No. 54. the premises m question, which were laid down on the map, but not drawn for or divided, by such partition.
    The deed of partition, after reciting, that by several grants, the parties thereto had obtained title, as tenants in common, to the Pittstown patent, and their agreement to make partition of the whole of the said tract, called Pittstown, and after specifying the division by ballot, and the lots drawn by the several parties, proceeded with the several releases to the respective parties, of all lands so laid out and divided into lots, parts and parcels of lots, on *he maP annexed, and drawn to their respective shares. It appeared also, by the same partition deed, that the boundaries of the Pittstown patent included, as well as other lands, all or most of the lands granted by letters patent, dated the 19th May, (1737,) 10 Geo. II. to I). A. Schuyler and others, commonly called the Synhanessét patent, which included, according to the map, lots No. 53. and 54. the premises in question.
    The plaintiff then deduced, by proof, a regular title to his lessors, to eight ninth parts of the patent of Pittstown.
    It was also proved, by a surveyor, that the defendants were in possession of lots No. 53. and 54. and that they were within the bounds of Pittstown.
    
    
      
      Benjamin Smith, a witness for the defendants, testified that his father, in 1773, took possession of lot No. 54. claiming title uRobert and John Leake ; and John Griffiths was, at the same time, in possession of lot No. 53. The father of the witness continued in possession of No. 54. three years, and cleared about 20 acres. Various persons, in succession, had the possession, afterwards, who claimed to hold as owners. The witness did not know under whom the Leakes claimed, but he understood that their title and that of the Pittstown patent were the same. The defendants had not been in possession 20 years.
    Another witness testified, that about 40 years ago, his father had possession of lot No. 53. under Isaac Sawyer, and held it about two years; that John Griffith, afterwards, had possession, and claimed the land as his own. The witness understood that the lands were in Pittstown.
    
    The defendants gave in evidence a quitclaim deed, dated December 1, 1795, from Nathaniel Purdy to Ebenezer Willson, one of the defendants, for an undivided moiety of lot No. 53. and lot No. 35. which were stated to have been forfeited, by the attainder of Robert Leake ; and a quitclaim deed from Levinus Lansing, one of the lessors, to Ebenezer Willson, dated December 2,1795, for the west half of lot No. 54. also stated to have been forfeited by the attainder of Robert Leake, which deeds contained a proviso against any warranty of title. The defendants also gave in evidence a deed from Martha Norton to E. Willson, dated 10th December, 1797, for the undivided half part of lots No. 53. and 54. with covenants of warranty as to the title.
    Another witness testified, that in 1780, one Dunham took possession of lot No. 54. under Robert and John Leake, and that the possession was in other persons, successively, until the defendants took possession of the west half, in 1794, and of the east half in 1796; that about 15 years ago, rent was demanded by the heirs of Leake. That E. Willson, one of the defendants, bought lot No. 53. in the year 1791, of one Purdy, who purchased it of the widow of Isaac Sawyer; rents were collected by R. B. Norton, as heir of John Leake from Dunham, who had paid rent to Leake in his lifetime.
    
      Thomas Sampson testified that the Leakes claimed under Pittstown, and under Wells, one of the original patentees. One of the heirs of John Leake, since the late war, re-entered on lot No. 54. for rent. Both iois 53. and 54. had been possessed by tenants of the Leakes, for above 24 years.
    The judge declared his opinion to the jury, that both parties claimed under the Pittstown patent; that the defendants had given in evidence no paper title adverse to the Pittstown proprietors, until the deed from Lansing to IS. Willsoti, in 1795; that the Leakes appeared without any regular title, claiming under the Pittstown patent, and that the subsequent settlers had claimed under the Leakes; that if the Leakes had title, it appeared to have been derived from Wells, one of the original proprietors ; and that as the lots in question had not been divided, the Leakes, and those deriving title under them, could only be tenants in common, with the other proprietors; that their possession could not operate against the lessors of the plaintiif; and that the plaintiff was entitled to recover on.the rights of his several lessors, excepting that of Lansing, which was barred by his deed. The jury accordingly found a verdict for the plaintiff.
    A bill of exceptions was tendered to the opinion of the judge, ‘ who sealed the same, pursuant to the statute.
    
      Bliss and Foot, for the defendants, contended,
    1. that the lessors, by their own showing, were not entitled to recover. They proved ■ no title in themselves. Their map shows that lots No. 53. and 54. lie within the Synhanessei patent. Their patent and partition both recognise the title under that patent, as valid; and the lessors could only derive title, therefore, under Schuyler and others. Though the Pittstown patent covers lots 53. and 54. yet as it recognises the validity of the prior patent to Schuyler and others, it could give no title to the lessors to lands lying within the other patent. It was necessary for the lessors to show that the premises in ques-. tion were within the lots which they had purchased of Schuyler. As they have undertaken to enumerate the lots purchased of Schuyler, it is an admission that they claimed no more; and their own witness showed that the premises lay within lot No. 2. which was not purchased of the proprietors of Pittstown.
    
    2. The right of the lessors to recover, was barred by an undisturbed possession of the defendants, and those under whom they claim, adverse to the lessors, for near 30 years. This is established by the testimony given at the trial.
    If the lots originally belonged to the patentees of Pittstown, in common, the conduct of the persons in possession, for so long a time, amounted to an ouster of the other proprietors, and severed the tenancy in common, as to the lots in question; and the possession has been adverse to the lessors for more than twenty years past. If one tenant in common ousts his companion of the possession, the other may maintain ejectment against him; and con- . . . . fession of lease, entry, and ouster in ejectment is sufficient, without proving an actual ouster. A possession for 28 years, by a tenant in common, has been held sufficient evidence to be left . . , , -i . .. to a jury to presume an ouster or adverse possession.
    
    
      Mitchell and Van Vechten, contra, insisted that to render an adverse possession sufficient to toll the entry of the plaintiffs, it should be taken under a claim or colour of title, be hostile to that of the lessors of the plaintiff, and have been continued uninterruptedly from its commencement. Here the defendants claim under the same title.
    
    There is no evidence of the Synhanessei patent, except the recital in the Piltstown patent. But such a recital is not conclusive. Whatever may have been the ancient notion on the subject, the received opinion, at the present day, is, that recital is secondary evidence, and admissible only when the recited deed is shown to be lost, or some other reason given for not producing the regular and best evidence of it.
    
    Where two claim by the same title, an adverse possession will not be presumed, so as to toll the entry of the other. And where a person enters under another, and transfers the possession, his grantee is always presumed to hold under the same title.
    
    
      
      
         Litt. s. 322, Com. Dig. Estate, (K. 8.)
    
    
      
      
        Burr. 1895. Cowp. 27. 1 East, 568.
    
    
      
      
        Fairclaim v. Shackleton, 5 Burr. 2604.
    
    
      
       I Johns. Rep. 156. 158.
    
    
      
       2 Johns. Rep. 234. 4 Johns. Rep„ 390.
    
    
      
      
        Peake’s Evidence,113, 114. c. 2 s. 4. Ford v. Grey, 6 Mod. 45. See also 3 Ch. Cas. 101. Co. Litt. 352. b. Hard. 120. Vaughan, 71. 2 Lev. 108. 2 Roll. Abr. 678. 2 Vent. 171 Jenk. 255.
    
    
      
       Woodfall, Tenant, 444.
    
    
      
      
         1 Caines Rep. 401. 4 Johns. Rep. 212.
    
   Per Curiam.

The ground on which the defendants rest is, that the lessors of the plaintiff, by their own showing, in the recitals to the partition deed of 1763, admit an elder patent, covering the premises, and that although the recitals show a purchase of a part of this patent, there is no purchase of the premises stated. There is, then, a title existing out of the lessors, as they are es-topped by the recital from denying the existence of such a prior patent. The recital is here of a particular fact directly affirmed. (Shelley v. Wright, Willes’s Rep. 9.) But the title under which the defendants claim appears to have been derived from the Leakes, and they to have claimed under Wells, who was one of the Pittstomn proprietors. The source of title set up by both parties would seem, at first view, to be the Pittstorvn patent. But the mere fact that Wells was a Pittstown patentee, is not sufficient to prove that he held the premises under that patent, when, by the plaintiff's own showing, the premises were covered by an older patent, and under which purchases had been made by the Pitistonn proprietors. The omission to draw for and divide lots 53. and 54. is, of itself, evidence of the sense of the proprietors that the premises were not claimed by that patent. It ought to appear, clearly and positively, that Wells claimed the premises under the Pittstonn patent, and fransniitted such claims to the Leakes, before we can conclude that the Leakes possessed under that title, and as tenants in common with the other Pittstonn proprietors. Itis a more reasonable presumption, because it is in harmony wilh the rights and the facts disclosed by the partition deed, that Wells had purchased in the title under the Synha nesset patent, and held under that title, and if so, the lessors of the plaintiff were not entitled to recover.

A new trial ought, therefore, to be awarded, with costs to abide the event of the suit.  