
    Jackson, ex dem. Sinsabaugh and others, against Sears.
    NEWYORK,
    Oct. 1813.
    where A. possesion "of n?n received a fatherand mo. ^but16 aJknowícdpíed by the mo-the ’tide belonged by inheritance ; it was held that the acceptance of the deed was sufficient to repel the parol evidence that: &. entered adversely to his mother’s title, or if his possession had been adverse to that time, it seased to be so, on accepting the deed, and he was to be deemed to hold under the deed sucli interest as his father held, that is, an estate for life; and that on the death of the father the estate reverted to the mother or her heirs.
    A guardian can do no act to the injury of his ward. An attornment by the husband of a guardian 5a eceage is void as against her children.
    THIS was an action of ejectment for lands in Montgomery, in Orange county. The cause was tried before Mr. Justice Spencer, at the Orange circuit, in September, 1812, when a verdict was taken for the plaintiff, subject to the opinion of the court on the following case :
    
      Henry Rockafellotv, a witness for the plaintiff, testified that Henry Sinsabaugh, and Catharine, the wife of Johannes Slott, the lessors of the plaintiff, were two of the children of Henry Sinsdbavgh, deceased, who left one other child, a daughter, married to Peter Tice. Henry Sinsabaugh, deceased, took possession of the premises about forty-two years ago, and cleared the land, and continued in possession until his death, about 20 or 21 years ago* He always claimed to be the owner of the land from the time he took possession, and was generally so considered. After bis death, his widow married John Tice, who took possession and remained in possession 8 or 10 years, and the defendant has been in possession 7 or 8 years. About a year and a half before his death, Henry exchanged farms with one of his brothers, and was in possession of the farm so exchanged at the time of his death; but no deed was executed between the brothers. Immediately after his death, his widow gave up the farm so taken in exchange, to his . brother, and returned again with her family to the former farm, being the premises in question: Christian Sinsabaugh and Henry Sinsabaugh, deceased, sold about 25 acres of Henry’s farm to the defendant. Christian was in possession of the premises about 2 years.
    
      John C. Tice, a witness, testified that Henry Sinsabaugh, deceased, was in possession of and cleared the premises as early as 1770; that after the widow returned to the old farm from which her husband had removed, as before stated, the witness married her and took possession of the premises, and continued in possession 9 or 10 years; that he never claimed the land as his own, but considered himself as holding the possession for the heirs of Henry Sinsabaugh, deceased. The witness worked and occupied the farm himself, during the greater part of that period, but it was afterwards occupied by his son, under him. About 10 years ago they gave up the possession to Jacob Bookstaver. The lessors of the plaintiff were infants when their father died, and were not of full age when the possession of the farm was so surrendered to Bookstaver. Henry Sinsabaugh, deceased, the father of the lessors, had eight brothers and sisters, to wit, Christian, William, John, Jacob, Eve, who married Christian Rockafellotv, Anna, the wife of John Welles, Elisabeth, who married Jacob Michaels, and Anna Maria, the wife of Johannes Ockerman. Anna Maria and her husband both died before the 18th November, 1801, leaving two children, named Jacob and Elisabeth, their heirs at law.
    
      Henry Sinsabaugh, deceased, always claimed to have derived Ms title from Ms father and mother, Jacob and Elisabeth, who survived him. It was admitted that there were nine heirs of JSZizabeth, the mother of Henry Sinsabaugh, deceased.
    It was proved that Margaret, the widow of Henry Sinsabaugh, deceased, who married John C. Tice, died in January, 1803; and Tice, on further examination, said he never lived on the premises himself.
    The defendant gave in evidence an agreement, dated 28th June, 1802, between Jacob Bookstaver, John C. Tice, and David Tice, by which Bookstaver agreed to let John and David Tice have the farm (the premises in question) in possession of David, until the 1st April next ensuing the date of the agreement; and they were not to sow more than one fourth of the farm with grain, nor destroy any timber, &c. and bound themselves to deliver up the peaceable possession of the farm to Bookstaver, on the 1st oí April next, and of the whole of the lands in their possession; the parties binding themselves to each other for the performance of the agreement, in the penal sum of 1,500 dollars.
    The defendant also gave in evidence a deed of partition, dated the 17th November, 1770, by which John M‘Clean, and Margaret his wife, and Christian Rockafellow, and Catharine his wife, released to Elisabeth, the wife of Jacob Sinsabaugh, the father of the said Henry Sinsabaugh, deceased, 135 acres of land, the farm in question : and a witness testified that he knew the parties to the deed of partition, and that they severally took possession of the premises released to each other respectively.
    The defendant then gave in evidence various deeds and documents showing a title to eight ninths of the farm.
    Among the deeds produced was a lease and release from Jacob Sinsabaugh, and Elisabeth his wife, to their son Henry, for the 135 acres released to Elisabeth as above mentioned; which deed was dated the 24th or 25th of January, 1786, but was not acknowledged by Elisabeth.
    
    It appeared, also, that Peter Tice, on the 18th November, 1801, purchased from five of the heirs of Elisabeth Sinsabaugh their shares of the said farm; and on the 28th June, 1802, conveyed the said shares, and all his title, &c. to Jacob Bookstaver. An order of the surrogate of Ulster was also given in evidence, directing the administrators of Henry Sinsabaugh, deceased, to sell his real estate, describing it as one ninth of the farm of the said Elisabeth Sinsabaugh.
    It was admitted by the plaintiff’s counsel, that the defendant had made out a paper title to eight ninths of the premises in question.
    
      
      J. Duer, for the plaintiff,
    contended, 1. That the lessors of the plaintiff, previous to the entry of Jacob Bookstaver, under whom the defendant derived title, had acquired a perfect title to the premises in question, by an adverse possession of more than 30 years, from 1770 to 1802. It may, perhaps, be said, that the continuity of possession was broken by the entry of Christian, the brother ef Henry Sinsabaugh, deceased; but as he entered under Henry, his possession must, in judgment of law, be considered as continued in his brother.
    Again, it will be said that the deed of the 24th or 25th of January, IT186, from Jacob and Elisabeth Sinsabaugh, to their son Henry, is conclusive evidence that the previous possession by Henry was not adverse; the acceptance of it being inconsistent with the supposition of such previous adverse possession. But there is, in truth, no such inconsistency. Adverse possession is where a person enters under a claim or colour of title. Henry might have held under a parol gift from his parents: or have had a former deed which may have been defective, or lost, or destroyed. Had there been any doubt as to the possession being adverse, then the acceptance of the deed might have been sufficient to turn the scale against the plaintiff; but the evidence is clear and positive, and shows the most unequivocal acts of ownership on the part of Henry. Where there has been a previous adverse possession of 20 years, the acceptance of a defective conveyance would not destroy a title already perfect ; and it can make no difference whether the deed was executed before or after the 20 years, if the possession has been at all times adverse. A conveyance intended to confirm the title of Henry, cannot be used as the means of destroying it. The deed was not intended to show a title in the plaintiff; but to repel the title set up by the defendant. The validity of an adverse possession does not rest on the presumption of an original title by deed.
    A mere claim of title is sufficient to constitute an adverse possession. If adverse possession forms a presumption, it is a presumption Jim's et de jure, which cannot be repelled.
    2. The attornment of Tice to Jacob Bookstaver was fraudulent and void. Tice was in possession, in one of two characters; either as tenant of the infant heirs, or in right of his wife, as guardian in socage; if in possession as tenant to the heirs, his attornment was void under the statute. (Sess. 11. c. 26. s. 28.) But considering the possession of Tice as a continuance of the possession of the widow, the guardian in socage, then we contend the attornmen 
      was void at common law. Guardianship is a trust for the sole benefit of the infant. The guardian has no personal interest whatever in the estate. He holds every thing exclusively for the use of the heir. The possession of the guardian, in legal intendment, is the possession of the ward. The guardian has only that qualified possession which is necessary for the protection of the estate of his ward. In the case of Jackson, ex dem. Rensselaer, v. Whitlock, this question was discussed, and all the authorities cited; and though the judges were divided in opinion as to the plaintiff’s right to recover in that case, yet they all agreed that the guardian could do no act to the prejudice of his ward. Indeed, the contrary position would shock the common sense and feelings of mankind.
    But admitting even that the attornment of the guardian could work a dispossession of the ward, we contend that no such attornment has been shown in this case. There is no evidence of the assent of the wife to the acts of her husband; and the heirs can be bound only by those acts to which their guardian has assented. Guardianship, being a mere personal trust, cannot be transferred, or assigned, or forfeited, nor is it subject to survivor-ship.The husband of a guardian in socage has no right, on the death of his wife, to the custody of the ward. To render the act of the husband valid, therefore, the assent or concurrence of the wife must be shown. As the law, in many cases, will presume the assent of an infant to acts beneficial to his interest, so, by parity of reasoning, the assent of the wife, the guardian, might be presumed to those acts of her husband which were beneficial to the ward. Such intendment, however, cannot be made where the acts of the husband are prejudicial to, or destructive of, the interestof the ward; but the assent of the guardian must be clearly and unequivocally proved. The court would never presume the consent of the mother, in this case, to an act which was in violation of her trust, and which robbed her children of their inheritance. If the attornment, then, was void, there can be no question as to the right of the plaintiff to recover:
    3. For the defendant cannot protect himself under the conveyance from the heirs of KUsabeth Sinsabaugh: and it maybe remarked further, that the deeds for the-five ninths to Peter Tice, and from him to Bookstaver, were executed before any entry of Bookstaver, and while there was an adverse possession, and so are clearly void for maintenance. Nor can the title of the heirs of Elisabeth Sinsabaugh be set up by the defendant, claiming under Bookstaver, as an outstanding title.
    
    4. The lessors of the plaintiffs are clearly entitled, as heirs of Elisabeth Sinsabaugh, their grandmother, to two thirds of one ninth of the premises; and if, as we contend, the conveyance from the administrators of Henry Sinsabaugh to Bookstaver is void, then the lessors are clearly entitled to two ninths.
    
      D. Ruggles and P. Ruggles, contra,
    insisted that the original possession of Henry Sinsabaugh, deceased, was under his father and mother; and that even if his possession was adverse at the commencement, it did not continue so. It is admitted that all the title Henry had was derived from Elisabeth, his mother. She took possession in 1770, deriving title under her father.- Jacob Sinsabaugh, her husband, having an absolute control of the property, conveyed it td his son Henry, who must be concluded by the legal effect and operation of that conveyance. And all the estate which Henry possessed was but a life estate, and having accepted the deed of 1786, with the recital, he is bound by it. The acceptance of this deed was inconsistent with the idea of an adverse possession: and, at most, there was only 16 years’ adverse possession to that time; for after the acceptance of the deed, he must be considered as holding under the title derived from his parents. By that deed he had only an estate during the life of his father, and on the death of Jacob Sinsabaugh the life estate ceased, and the heirs of Elisabeth Sinsabaugh were the heirs at law. The deed from five of the heirs of Elisabeth to Peter Tice was a valid deed, there being no adverse possession. After the death of Henry Bookstaver, to whom Tice conveyed, the shares descended to his heirs, who, with the heirs of Elisabeth Sinsabaugh, were tenants in common, and the possession of the heirs of Henry Bookstaver must be considered as the pos- ■ session of the heirs of Elisabeth Sinsabaugh.
    
    
      Henry Sinsabaugh either entered under his mother, or adversely to. her, Admitting even that he disseised his mother, she continued a feme covert until 1793, two years after the death of Henry. The statute of limitations could not run against Elizabeth, or her heirs, until 1793, nor until 1802, when Jacob Sinsabamh died.
    
      The attornment of John Tice and David Tice was valid, ex» cept as against the heirs of Henry who were entitled to omy one ninth of the estate of Elisabeth Sinsabaugk* The lessors of the plaintiff cannot pretend to claim more than their share of that ninth.
    
      
      
        Smith v. Burtiss, 9 Johns. Rep. 174.
      
    
    
      
      
         1 Inst. 88. b. 89 a. and n. 67, 68, 69. Gilb. Eq. 177. 1 Inst. 15. a. 1 Cruise's Dig. 14. 3 Cruise's Dig. 411. & Wils. 316.
    
    
      
      
         1 Johns. Cas. 213.
    
    
      
       3 Co. 39. 1 P. Wms. 701.
    
    
      
       3 Johns. Rep. 499. 4 Johns. Rep. 202.
    
    
      
      
        Bull. N. P. 110. 3 Johns. Rep. 386. 4 Johns. Rep. 386. 4 Johns. Rep. 217.
      
    
    
      
      
        Com. Dig. Evidence, B. 6. 1 Salk. 286.
    
   Per Curiam.

The acceptance of a deed of the premises, in 1? 86, from his parents, by Henry Sinsabaugk, the father of the lessors of the plaintiff, does away the force of the testimony of Rockafillow that he had previously held adversely to the rightful title of his mother, or if he had previously so held, the adverse possession then terminated, and he held under Ms parents such right as the deed conveyed. That right was only the interest which his father had in the premises, as his mother never acknowledged the deed, and his father was seised only jure uxoris, and, at most, had but an estate for life. The title, from the year 1770, was shown to be in Elisabeth, the mother. On the death of Jacob Sinsahaagh, his son Henry’s right expired, and the estate was vested in Elisabeth, his mother, who survived him for about two years; and it is admitted in the case that the defendant had a paper title derived under her to eight ninths of the premises. The lessors of the plaintiff, being two of the three children of Henry, are, then, entitled only to two thirds of one ninth of the premises; and by what principle, then, are they to recover more in this action ? It is urged, on the part of the plaintiff that the act of John C* Tice (the second husband of Henry’s widow) and his son, in June, 1802, in surrendering the possession to Jacob Bookstaver and taking a lease under him, was a fraudulent attornment. This will depend, however, upon the extent of the interest which Tice and his wife held in trust for her children, of whom the lessors of the plaintiff were two. They had no right under their father, because their father left none, and the estate was then in their grandmother Elisabeth, if living, and if dead, (as is presumed,) they had only their undivided share, as her grandchildren, and took such share as their father would have taken, if living, that is, one ninth. A guardian cannot do any act 'that shall work an injury to the ward; but if the mother of the lessors of the plaintiff as guardian, had held possession as against Elisabeth, it would have been a tort and an intrusion* BoqIcstaver had, .jsi 1806, in himself, a title to five ninths of the premises, and was, consequently, a large tenant in common. The attornment to him by the Tices was void undoubtedly, as to the right or interest of the children of Hem'!/ in the premises, and that interest was only one ninth, and (o that proportion their claim re - mains perfect. The mother of the lessors and her second nus band held posséssion in their behalf, only to the extent of their rights, and no further. The lessors of the plaintiff are, consequently, entitled to recover two thirds of one ninth of the premises, and no more.

Judgment accordingly  