
    Jackson, ex dem. Bratt and others against Tibbits.
    UTICA.
    August, 1828.
    Though a deed erative^vords both of a partition and an originai deed, aT5» partition
    thed interests of the parties appearing, in fact, or on the face of the deed, to he a common interest, and the deed being confined to that; yet, if this be not so, it will pass the interest of the several grantors, as an original deed, provided they have any such interest as may be covered by the words describing the subject matter.
    A deed must receive its construction, as to what it shall convey, from its language and subject matter.
    The statute of March 16th, 1785, (1 Jones & Varick, 201,) providing for the partition of patented and other lands, is confined in its operation to joint or common owners of equal shares; and if a partition be made where the shares are unequal, it is void,  A partition under that act must designate the parties, who are to take in severalty, by name, or with as much certainty as a deed of conveyance; and where the commissioners awarded in severalty thus : to B’s representatives, without naming them; held, that the partition was void for uncertainty of the persons who were to take.
    One tenant in common entering on, or being in possession of lands generally, shall be presumed to have entered, or taken and possessed, consistently with the common title of all; and in such case, though the possession be exclusive, the statute of limitations will not run against his co-tenant; but where, by some notorious act, he claims an exclusive right, though it be under a title" which is void, yet the statute shall run from the time of such claim.
    Thus, where a tenant in common caused a partition to be made, professing to he under the act of 1785, (1 Jones & Varick, 201) which was void in law, "yet he having possessed in severalty under the partition for 20 years, held, that a co-tenant was barred his right of entry.
    Ejectment for 129 acres of land, being the west half of lot No. 2, of the 7th allotment, according to the partition 0f one fourth (formerly the Teunise or Van Vechten share) \ j z of Hosick patent, which partition was made by P. Schuyler, J* Van Ingen and H. P. Schuyler, in 1800. This lot No. 129 is *a part of the original lot No. 51, in the general partitim of the patent made by Bleecker, May 27th, 1754.
    
      At tne Rensselaer circuit, before Duer, C. Judge, the fury found a special verdict as follows :
    That as to 812 fff of the locus in quo the whole into 829 parts to be divided, the defendant was not guilty.
    As to the residue, being 17 fff of the locus in quo, the jury found the grant of the Hosick patent, June 2d, 1688, to Maria Van Rensselaer, Hendrick Van Ness, Jacobus Van Cortlandt and Gerrit Teunise ; that Van Rensselaer and Teunise dying, whereby, upon the doctrine of joint tenancy, the whole survived to the other two patentees, they (Van Ness and Van Cortlandt) the two survivors, conveyed one fourth of the patent to Johannes Van Vechten, the heir of Teunise, by indenture, bearing date October 18th, 1706.
    The rights of the parties to this suit were involved in the history of Johannes Van Vechten’s fourth part, in relation to which the jury found substantially the following facts : Of this 4th part, he (Van Vechten) conveyed (June 10th, 1707) the right half (then yet undivided) to Jonas Douw ; and on the 30th, of October, 1741, he, (Van Vechten) conveyed the residue to Hendrick Bries, Barent Van Bure,'jun. and Barnardus Bratt, jun. May 27th, 1754, by partition' and deed of that date, pursuant to a survey of John R. Bleecker, this 4th part was allotted in severalty to Van Vechten’s grantees, as lots 18, 20, 21, 29, 57, 60, 54, 51, 48, 45, 38 and 42, called original lots. Previous to this, January 20th, 1753, Van Bure had conveyed his interest to Bratt and Bries, his co-tenants; and on the 22d, two days after, they conveyed the same interest to Edward Collins. Bries died in 1754, and Van Bure in 1777, Barnardus Bratt surviving, and taking Bries’ interest by survivorship as joint tenant. On the 4th of October, 1786, Barnardus Bratt conveyed his share derived from Bries to his (B. B.’s) son, Daniel Bratt, who, on the same day, cot veyed one undivided half of this Bries’ share to Thomas L. Witbeck. December, 15th, 1787, a bill in chancei-y was filed by Dirclc Van Vechten, Volkert Van Vechten and others against Catharine Bratt, and Hendrick and the other children of Barnardus Bratt, and Witbeck; and March 22d, 1797, one half of all the land derived by the defendants in the bill from *Barnardus Bratt and Hendrick Bries, or either of them, were decreed by the court of errors to the com plainants, and were afterwards conveyed to them accord ingly.
    Jonas Douw died seised of his one half, (which he derived from Johannes Van Vechten,) before the statutes of descents, leaving Peter Douw, his eldest son and heir, who also died before the statute of descents, leaving two sons, Volkert P. Douw the eldest, and Abraham Douw his second son. The latter died previous to January 13th, 1790, leaving 4 children his heirs at law.
    Collins died previous to March 27th, 1787, without issue, leaving John C. Holland his collateral heir. This Holland, by 3 several conveyances of different parts, dated January 17th, 1783, March 27th, 1787, and September 4th, 1787, passed all his interest to Thomas L. Witbeck, viz. the Van Bure share.
    In 1789, Barnadus Bratt died seised of all his share which he purchased of Johannes Van Vechten, leaving Daniel Bratt, John B. Bratt, Gerrit Teunise Bratt, Hendrick Bratt, Elizabeth, wife of John L. Bratt, and Mary, wife of Thomas Lotteridge, his children and heirs at law.
    On the 13th of January, 1790, by indenture, between Volkert P. Douw and the four children of his deceased brother Abraham, of the one part, and the heirs of Barnardus Bratt, with Witbeck, of the other part, the Douws conveyed all their interest to the Bratts and Witbeck, reserving lot No. 48, lot No. 38, except 365 acres, 440 acres of lot No. 42, and 309 acres of lot No. 54. The parts so reserved were, by the same indenture, conveyed by Witbeck and the Bratts to the Douws. On the 29th day of October, 1790, Witbeck coveyed to the Bratts all his (W.’s.) interest derived from the Douws.
    In July term, 1798, James Caldwell recovered a judgment in this court against Witbeck, which was docketed August 28th, 1798, under a fi.fa. upon which the sheriff of Rensselaer, on the 16th of April, 1800, sold to George Tibbits, the defendant in this cause, all Witbeck’s interest in the original lots above mentioned. The sheriff’s deed was executed August 19th, 1800; and about this time Peter S. Schuyler, * James Van Ingen and Harman P. Schuyler were appointed commissioners under the act of March 16th, 1785, (1 Jones & Varick, 201,) to partition the original lots. They caused them to be surveyed, ascertaining and specifying the contents of each original lot; which were mentioned particularly in the special verdict, 
       This survey was completed and a copy of the commissioners’ proceedings was filed with the secretary of state and another wilh the clerk of Rensselaer county, on the 7th August, 1800. The commissioners ascertained that the aggregate amount of the original lots was 14,478 acres. This partition was acted upon and carried into effect by' several of the parties in interest, but never by Hendrick Bratt or his heirs, the lessors of the plaintiff On the 24th of November, 1800, the Bratts, except Hendrick, joined with others in a partition deed of the premises surveyed and partitioned as last mentioned, between them and Tibbits, the now defendant, (according to that survey,) and conveyed their interest to Tibbits. The premises in question, (the half of lot 2, in the 7th allotment,) fell, by the partition of Van Ingen and Schuyler, to the Van Bure share. The possession of the defendant, by himself or tenant, of lot No. 2, commenced in 1800, when Jacob L. Viele took an agreement from Tibbits (the defendant) for a deed. On the 6th of October, 1803, Viele took .the deed from the defendant and John D. Dickenson, for one half of the lot, the premises in question; and this suit was commenced February 23d, 1825, Tibbits having, by consent, been substituted as defendant, instead of Viele.
    Hendrick Bratt died March 28th, 1823, leaving the lessors of the plaintiff his children and heirs at law, to whom his right in the patent descended. But whether: &c.
    
      Farther facts wil he found stated in the opinion cf the court.
    J. V. Henry now moved for judgment upon the special verdict in favor of the plaintiff. .
    *He stated the following points ;
    1. That the lessors of the plaintiff have shown title in themselves to 17 parts and fff- of a part of the premises in question.
    2. That the proceedings of Peter S. Scuyler, James Van Ingen, and Harmanus P. Scuyler, under the act entitled “ An act for the partition of lands,” passed the 16th of March, 1785, to divide the lots No. 18, 20, 21, 29, 57, 60, 54, 51, 48, 45, 38 and 42 in the Hosick patent, are of no effect as against the lessors of the plaintiff:
    3. That the right of entry of the lessors of the plaintiff, is not affected or tolled by lapse of time.
    He furnished a statement in writing to the court, deducing the plaintiff’s claim as follows:
    The quantity to be recovered stands thus from the special verdict :
    
      
    
    
      
      
    
    
      
    
    
      J. P. Cushman & A. Van Vechten, contra, relied on the following points:
    1. That upon a special verdict, it is the province of the court to determine the effect and operation of deeds and written instruments thereon found to have been executed, without regard to the finding of the jury as to those particulars ; and for that purpose the special verdict regularly must set forth such deeds and instruments in Jieec verba that the court may judge of the whole contents; • ■
    2. That the lessors’ title as heirs of their father Hen • drick Bratt, deceased, one of the six heirs at law of Barnardus Bratt, deceased, extends only to i of such part of the premises in question, as the legal representatives of Barnardus Bratt are entitled to;
    3. That the right of Barnardus Bratt’s representatives is limited to the lands which they derived title to, under Gerrit *Teunise, through the deed of Johannes Van Vechten, of 1741, to Barnardus.Bratt, Hendrick Bries, and Barent Van Bure;
    4. That the deed of January, 1790, between Volkert P. Douw and others, the representatives of Petrus Douw of the one part, and the representatives of Barnardus Bratt and Thomas L. Witbeck of the other part, appears on its face and by its terms to be a mere partition deed of the common interests of the parties thereto, claimed under the deed of 1741, and defines the extent of those interests, and therefore its legal operation is to sever the common interests thus defined, so far as relates to the grantors and grantees;
    5. That the deed of October, 1790, from Thomas L. Witbeck to the Bratts, operated only to extinguish any separate interest which the grantor might, have acquired from any of the Douws therein named, which is not thereby excepted; but as no such interest appears by the special verdict, it would seem that it was given by Witbeck, and accepted by the Bratts merely for greater caution; valeat quantum valere;
    
    6. That the deeds set forth in the special verdict show that the share of Van Bure under the deed of 1741, was sold and conveyed by him to his co-grantee, Bratt and Bries, who sold and conveyed the same to Edward Collins, from whom the title passed to Thomas L. Witbeck, and from him by sheriff’s sale to the defendant, and that Barnardus Bratt took the share of Bries under the same deed by survivor-ship, and conveyed the same to his son, Daniel Bratt, who sold and conveyed the half to Witbeck, which has also passed from Witbeck to the defendant;
    7. That the decree in the court of errors, and the release m obedience to it, show that the one moiety of what then remained to the representatives of Barnardus Bratt, under the deed of 1741, by title derived through Hendrick Bries and Barnardus Bratt, passed to the Yan Yechtens, and thus the share of the representatives of Barnardus Bratt, (except his son Daniel, to whom he had conveyed the Bries share,) was reduced to one moiety of one-third of Garret Teunise’s quarter of the patent, after deducting the 3532 acres, released in severalty to the Douws by the Bratts and Witbeck, by the partition deed of January, 1790;
    *8. That the premises in question in this suit are the westerly half of lot No. 2. in the 7th allotment; the whole of which lot, by the partition of 1800, fell to the share of the representatives of Barent Yan Bure, whose one-third part, under the deed of 1741, Barnardus Bratt and Hendrick Bries sold and conveyed to Edward Collins ;
    9. That the premises in question have been held in adverse possession by the defendant, or Jacob L. Viele under him, since 1800, and of course more than 24 years before this suit was commenced.
    They delivered to the court a written statement deducing the defendant’s title as follows :
    Gerrit Teunise’s one-quarter of the patent, accord- Acres. ing to the commissioners’ survey, contained 14,478 Deduct what was released to the Douws by the partition deed of January, 1790, which defined the extent of their claim to be 3,467 Which leaves to the representatives of B. Bratt, H. Bries and B. Yan Bure, 11,011 Deduct £ for the share of Yan Bure which was conveyed to B. Bratt'and Hendrick Bries, who sold and conveyed it to Edward Collins, from whom it descended to John C. Holland, who sold, and conveyed it to Thomas L. Witbeck, from whom it passed, by the sheriff’s sale, to the defendant, George Tibbits, 3,670£ Which leaves to the representatives of B. Bratt, and H. Bries, 7,340§ Deduct $■ for the share of H. Bries, which vested in B. Bratt by survivorship, who conveyed the same co his son Daniel Bratt, and Daniel Bratt sold $• thereof to Thomas L. Witbeck, from whom it passed by the sheriff’s sale to the defendant, George Tibbits, 3,670$*» Which leaves to the representatives of B. Bratt, 3,670$ Deduct $■ conveyed to the Van Vechtens under the decree of the court of chancery, 1835$ Which leaves to the heirs at law of B. Bratt, 1835$ ^Deduct £ for the shares of the 5 heirs of B. Bratt, who conveyed the same to George Tibbits, 1525$ Which leaves for the children of Hendrick Bratt, deceased, (the lessors of the plaintiff,) as their proportion in the whole patent, to be taken out of the lots which in the partition were allotted to the representatives of B. Bratt, and not out of the premises in question, which were allotted to the representatives of Barent Van Bure, 309$
    
      
       Nor was this act obligatory on one who at the time was a femme covert, and was not made a party to the proceedings, although they were had on the application of her husband. Zimmerman v. Rapp, 20 Wen. 100. See also Dig. N. Y. Rep. by Hogan, tit. Partition.
    
    
      
      
         The quantities were as follows :
      Lots. Acres. Lots. Acres. Lots. Acres. 21 930 57 [ XXX XX XXXX ] 20 707 60 [ XXX XX XXXX ] 18 [ XXX XX XXXX ] 38 ' 1585 20 [ XXX XX XXXX ] '42 1694
    
   Curia, per Woodworth, J.

The deed of January 13th, 1790, the partition by Van Ingen and the Schuylers, and the adverse possession by the defendant, form the subjects of consideration.in disposing of this cause.

1. The deed of January 13th, 1790, was between the heirs or descendants of Joseph Duow of the first part, and the heirs of Barnardus Bratt, with Thomas L. Witbeck, of the second part. By that deed, the Douws conveyed all their interest in the patent to Bratts and Witbeck, except 3467 acres, which it is agreed they reserved. What was the interest of the Douws ? We must take the answer from the special verdict. It was Jonas Douw’s share; or in other words, it was one half of the Van Vechten share of the patent, 7239 acres, equal to the whole quantity which Van Vechten afterwards conveyed to three :, Bratt, Bries and Van Bure. Nothing appears of Jonas Douw or his descendants ever parting with any of their interest, till the execution of tb e deed in question. That deed was, no doubt, sufficient to carry all the interest of the Douws in the land not reserved by it. The unreserved lands amounted to 3772 acres, then undivided. This portion, followed as the deed of January, 1790, was by the conveyance from Witbeck to the Bratts of October, 29th 1790, became wholly vested in the latter.

It was contended by the counsel for the defendant, that this deed was but a partition of the common interest of the parties, which they derived from Jonas Douw on the one hand, and Barnardus Bratt on the other. The inference is drawn from its purporting to be a mere partition deed, and other circumstances which perhaps give some plausibility to *the ground taken. But the proportions of ownership between the parties are not stated by the deed; whereas they are found by the verdict to be sufficiently large in the Douws, for giving what it is now claimed passed to the Bratts and Witbeck. The quantity conveyed depends on the share owned by the Douws at the time. The deed may have been, as supposed, a mere partition of Barnardus Bratt’s and Jonas Douw’s shares ; but till this is shown, either upon the face of the deed, or by the rights of the parties at the time, the supposition cannot be sanctioned. Such a course would be to abandon the case made out by the special verdict, and to overturn facts by conjecture. Though good as a partition, there cannot be a doubt that the deed is equally available as an original conveyance. It must receive its legal construction and operation, according to its language and subject matter. These are the only controlling circumstances before the court.

The Douws grant, bargain, sell, alien, release and confirm to the Bratts and Witbeck in fee, after a specific reservation, and upon a pecuniary consideration expressed, all the right, title, &c., of the former to the lands, &c. in Hosick patent. Here are the consideration to raise the use, the operative words, and a subject matter for a bargain and sale, or lease and release.

2. The partition upon which the defendant relies, professes to be made in pursuance of the act for partition of lanc^s) passed. March 16th, 1785, (1 Jones & Varick, 201.) • This act provided that the proprietor of undivided lands inclined to make partition, might give notice in a newspaper, that three commissioners were appointed for the purpose. No objection being made, they became commissioners of course. Objections were to be heard and decided by a judge. When the commission was filled, its, members were to give another newspaper notice of the time and place, when and where they would proceed to partition. When they had ascertained who and how many were the patentees, or persons claiming equal undivided shares, they were to divide the land into as many allotments as they should think best; and each allotment into oas many lots as there were patentees or other *owners claiming equal shares. The commissioners were then to prepare and conduct a balloting or drawing, which was to be so managed, that at least one lot in each allotment should be drawn to some one of the proprietors; that is to say, each proprietor was to have, as nearly as might be, upon the plan of dividing and drawing proposed, a share of the allotments equal to each of the other proprietors. The lots thus drawn became the several property of the person to whom,they fell. By the 5th section, subdivisions of patents, or smaller tracts lying in common, might be divided in the same manner. The 6th section provided for equalizing improvements made while the land lay in common, by a pecuniary compensation. By the 7th section, if lots should happen under the 5th to be drawn to one or more having no-title, such lots were still to remain in common. These are all the provisions of that statute which it is necessary to consider with a view to the questions raised upon it.

In the case before the court, the partition was thus: “ To .Barnardus Bratt’s representatives,” (without naming them) “lot No. 1 in the first allotment, containing 82 acres, &c.;” and in the same form to Hendrick Bries’ and Barent Van Bure’s representatives; thus treating the representatives of each as common owners of equal shares.

The statute has no application, except to existing owners of equal shares. The manner of distribution and division could hardly fail to work the most palpable injustice as to any other rights. The land in question was owned in very unequal proportions, among the defendant, the Bratts, the Douws, Yan Vechtens, &c. It is not possible to satisfy these various claims by a distribution'in severalty, upon the plan followed by the commissioners. It could not be done short of several divisions and subdivisions. The commissioners proceeded as if the whole fourth of the patent had been originally granted to Bratt, Bries and Van Bure; and belonged at the time to their respective families by descent: whereas the only portion claimed in that way, was the twelfth, in the family of the Bratts. The object of all our partition acts is to give to the actual subsisting owner, in severalty, what he before held in common. The statute conferred on the commissioners a *naked power, which must be strictly construed and closely followed. In a special manner, this rule should not be relaxed, when the power is exercised by the nominees of a party in interest, whose appointment may never be heard of by the co-tenants, till their rights are divested. This partition was clearly void, as not exercised upon a proper subject matter; upon equal shares.

Again, if there was a subject matter, if here were those equal rights contemplated by the statute, who can be received as owners in severalty under such a partition ? Who are we to understand by the representatives of Bratt, Bries and Van Bure? The statute intended the proceeding as a substitute for a deed of partition. Who would take under a deed giving such a designation to the parties? It cannot be doubted that the law requires quite as great a degree of certainty in this summary ex parte proceeding, as it would demand from a deed of the parties. The word, representatives, has no technical meaning in the law. It may signify heirs or executors, or representative may mean one who is substituted for another in any business: but the word never signifies a grantee. It cannot, most certainly, be applied to any of the proprietors at the time of the partition, except the Bratts; and to reach them we must add the epithet real, to distinguish them from Barnardus Bratt’s executors. The partition is void for uncertainty of per sons.

This view of the case entitles the lessors of the plaintiff to 17fff of the premises in question, unless their claim is barred by the statute of limitations.

3. The defendant has shown a clear adverse possession for 21 to 25 years before suit; a possession which would certainly toll the entry of all the world, except the lessors of the plaintiff, or other tenants in common with the defendant. But full possession by one tenant in common for many years, will not per se, constitute an adverse possession within the statute of limitations. No case goes the length of tolling an entry by such a circumstance, within the short period of 25 years. (Vide 6 Cowen, 633, 4.) This is on the presumption that the possession-of one is in support of the common title of all. (ibid.) But it is , equally clear, both upon the English *cases and our own, that this presumption may be repelled, and an adverse possession established, by proof of an open claim of exclusive right. A refusal to account or a denial of title, on demand by the co-tenant, is an ouster, (ibid.) And in Jackson v. Brink, (5 Cowen, 482,) a purchase by one ten- • ant in common of another’s share at sheriff’s sale, though the sheriff’s deed was void of uncertainty, was holden an ouster. The cases cited from Wheaton, in Jackson u. Brink, go farther to illustrate and establish this doctrine.

What then, in this view, is the case before the court ? Up to ] 800, the period of the partition, the defendant was confessedly a tenant in common. The partition then takes place; a public act, upon which the defendant claims to exclude his co-tenants, and hold in severalty. The partition was void; but it was not the less an act of adverse possession, an ouster of the co-tenants. Jackson v. Brink decides that a deed or paper, though void, may yet operate as the foundation of an adverse possession. The partition covered the premises in question. So does the deed from the defendant and Dickenson to Viele which was also more than 20 years old when this suit was commenced; and under which Viele, has held continual possession. The defendant comes in his right; and seems pretty clearly entitled to judgment, on the sole ground of adverse possession for more than 20 years before suit.

Judgment for the defendant. 
      
       Adams on Eject. 4th ed. 134.
     
      
       See Clapp v. Bromagham, post 530.
     
      
       Cowen & Hill’s Notes to Phil. Ev. 488.
     
      
       Humbert v. The Trinity Church, 24 Wen. 587. Dig. N. Y. Rep. by Hogan, tit. Adverse Possession.
     
      
      
         Vid. La Frombois v. Jackson, 8 Cowen. 589.
     