
    JANSEN HASBROUCK, Respondent, v. NELSON H. BURHANS, Appellant.
    
      Evidence — -recital in a sheriff’s deed, that an execution has been issued — what extrinsic evidence of matter in pais will raise a strong presumption that the recital is true — what admissions of a paurty in possession of land, raise a presumption that the possession is not adverse to the grantee named in such a deed.
    
    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury at the Ulster Circuit.
    The action was in ejectment. Both parties claim title under Philip Smedes, who was in possession of the premises in 1810, and remained in possession until his death, about the year 1826. The plaintiff claimed title under a sheriff’s deed, dated October 15,1818, purporting to convey the premises to Abraham Hasbrouck.
    The court at General Term said: “ The udgment in favor of the plaintiff recovered upon the former trial, was reversed for reasons stated in 42 Hun, 3Y6. We there held that the deed given by the sheriff in 1818 to Abraham Hasbrouck, w;as not valid as an ancient deed, for the reason that there was no extrinsic evidence of matters in jpais to indicate that it ever supported any act of possession of the premises. In other words that the deed stood alone, and nothing was shown to have followed from its existence. We held that the recital in the deed that an execution had issued to the sheriff upon the judgment against Philip Smedes was not shown to be true, and as against Smedes could not be presumed to be 'true, in the absence of all evidence that any right to the land in Abraham Hasbrouck or the plaintiff, had ever been acknowledged by Smedes or enforced by tbe Hasbroucks under tbe deed. We also beld that in the absence of evidence that tbe Smedes held tbe premises in subordination to tbe Hasbrouck title, that tbe statute of limitation was a bar to tbe plaintiff’s claim, and tbis was true even if tbe deed should be presumed to bave been valid and Peter Smedes in 1818 became a tenant at will of Abrabam Hasbrouck.
    Tbe case now differs from tbe case as tben presented by tbe addition of tbe testimony of one Kraft. He testifies that in 1879 be was tbe collector of taxes; that he tben called upon Maria Smedes with his tax warrant, which contained a tax against her as the owner of the premises in question. Maria Smedes was the daughter and only heir of Philip Smedes, tbe original owner of the premises, against whom was the judgment, and whose title tbe sheriff’s deed recites was sold to Abrabam Hasbrouck in 1818. She was in possession of the premises and bad been since the death of her parents. Tbe defendant derives title through Maria Smedes. Tbe collector found her in tbe bouse on tbe premises and demanded payment of tbe tax. She replied to him, “ I don’t own tbis property; it belongs to Jansen Hasbrouck.”
    Now, if it was true that she did not own tbe property and that it did belong to Jansen Hasbrouck, then the presumption of fact is strong that tbe ancient deed was genuine; that tbe recital in tbe deed of tbe sale of Philip Smedes’ title under tbe execution was true, and that the possession of Philip Smedes and Maria Smedes, after 1818, was in subordination to the title of Abraham Hasbrouck and afterwards of tbe plaintiff. Giving effect to tbis presumption the ITasbrouck’s had title, and tbe long possession of tbe Smedes was not adverse, and tbe plaintiff would prevail.
    The testimony of the collector was entirely competent. Of course much can be said with respect to the weight that ought to be accorded to a declaration of a poor ignorant old woman, who probably was destitute of the means to pay the taxes and who may bave resorted to tbis expedient to gain time. On the other band, there was the ancient deed, possibly known and acknowledged by Philip Smedes, who in consideration of services rendered and from motives of humanity, may bave been permitted to continue to occupy tbe premises. The declaration of Maria Smedes would harmopize with such a situation. It was a question of fact for the jury, and the jury have drawn the inference in favor of the plaintiff.
    We think the judgment must be affirmed with costs.
    
      Wm. lounsbery, for the appellant.
    
      Howard Glwpf, Jr., for the respondent.
   Opinion by

Landon, P. J.,;.

Fish, J., concurred, Parker, J., not sitting.

Judgment and orders affirmed, with costs.  