
    Jackson, ex dem. Duncan and others, against Harder.
    NEW-YORK,
    May, 1809.
    A person who ~ad been in p05-scss~on of hand for 8 orlO years, sinder colour of title, was held entitled to recover in ejeotment against a mere intr~ider or trespasser.
    A mere intruder will not be allowed to protect himself in the possession, hy setting up an outstanding title in a stranger.
    An outstanding title in a stranger cannot be set up where there has been an adverse possession of 20 years.
    A claim or title, which could not be set up by a person while in possession, cannot be set up by another person who comes into possession under him.
    A parol partition of land, carried into effect, by possession taken by each party of his respective share, according to the partition, will he valid and binding on the parties.
    THIS was an action of ejectment for lands in the city of Hudson, The cause was tried at the columbia circuit, before Mr. Justice Van Ness, in October, 1807,
    
      At the trial, William Coventry, a witness for the plaintiff, testified, that he was 48 years of age, and lived upon the Salisbury patent; that his father came there in 1760; and John M’Comb was in possession of lands south of him. Wynant Mantle was the first possessor under M'-Comb, and was there 40 years ago, and remained in possession until after Duncan and Campbell, two of the lessors, came into possession, when he became their tenant. After he went away, William Cochran came into possession under Duncan and Campbell, and remained there several years. Alexander Patterson took possession afterwards under Duncan and Campbell Jacob Elias came on the premises in 1779, under Duncan and Campbell, by lease for a year, and continued thereon until his death; and his family still live there. In 1776, the father of the witness and M'Comb divided the north part of the patent, down to a certain white-ash tree, and then running east to the east bounds of the patent. The north part was held by his father, and is now held by the witness. The south part fell to M'Comb, about the year 1779 or 1780. After Jacob Elias was upon the premises, Samuel Howe and Jonathan Baker came into possession ; Elias, Howe, and Baker, had'possession, and built houses upon the tract, claiming title, and saying they had purchased of Duncan and Campbell. Baker built on the south-east part of the tract claimed by D. and C. and near the place called Stoney Dock. Elias built on the northeast part of the tract, where his family now are, and at the place where Mantle, Cochran, and Patterson formerly resided. Samuel Hozoe built near the east line of the tract where Jonathan Fish afterwards lived, upon a farm now owned and possessed by the defendant, but not the premises now in dispute. The witness was present when Baker, Howe,and Ellas, agreed upon a division of the land bought of Duncan and C. and the plan was marked out upon the bam. A survey was afterwards made agreeably thereto. The parties, afterwards, possessed, and built, in severalty, according to that division, which took place in the spring of 1783. Upon that division, there was a small piece of about íwé acres at the north-east comer of Baker’s former possession, which fell to Howe, and has always been held with the portion allotted to Howe. Baker went away, about the year 1787 or 1788, and one Bundles succeeded to the possession, and after him, the defendant. The witness pointed out, on a diagram, the manner of the division between Hoz ve, Elias, and Baker, by which it appeared, that Elias took óne half of Duncan and Campbell’s tract, and one-third of the remaining half. That Elias took his half upon the north, and his third of the remaining half upon the south-east corner. Howe took his part, lying upon the east, and bounded upon the north and south sides by Elias, and extending about half the distance from the east side to the river. Baker took his share at the southwest corner. The witness, on his cross-examination, said, that Casper Salisbury, as far back as he could remember, lived within the tract claimed by Duncan and C. and held under the Salisbury claim and against them ; his old farm extended as far as Stoney Dock, and the lands lying south of the line, which runs east from Stoney Dock, were possessed under" the Salisbury claim. One Delamaiter held east of Casper Salisbury, and the widow Moore east of him. That Duncan and Campbell, or M'-Comb, never had any lands in possession, south of the east line from Stoney Dock.
    
    
      Alexander Patterson, another witness for the plaintiff, testified, that he had lived on the M'Comb tract. That he went on under Duncan and Campbell, in 1775. Wynant Mantle lived there under M'Comb, in 1764. Elias succeeded the witness in the possession. A son of Casper Salisbury had a field south of him, and Casper Salisbury had a field still further south, which the witness, afterwards, held under William Ludlow. This was in 1774, and the witness then lived with his father-in-law. In 1763, 1764, or 1765, he had some grain on a field which, afterwards, came into the possession of Baker. The fence was gone, and the land then vacant, Cochran was in possession before he came on, and Cochran held under Duncan. The son of Casper Salisbury held some land for one year under Cochran. The land held by Casper Salisbury was meadow land, and the witness, afterwards, occupied it under Ludlow. When Salisbury moved away, the land was turned into common, and Ludlow got a judgment against the possession, which he sold at auction, and bid off himself. Ludlow said he would hold the land as long as he could, and offered it to the witness for a pair of horses. The witness continued in possession until the late war, when he left it, and then Ludlow sold the land to Baker. There was some land north of Casper Salisbury’s possession, which, on the division between Howe, Elias, and Baker, fell to Baker. Part of Casper Salisbury’s possession extended near to Stoney Dock, and he claimed no more than he had inclosed, and Ludlow claimed all' that Salisbury had inclosed. Salisbury had all his possession south of the road, and it lay on both sides of the south line of M'Comb’s tract. Baker’s house and bam were no part of Salisbury’s possession. The greater part of Salisbury’s possession lay north of M'Comb’s south line, as laid out on the diagram.
    
      Samuel Howe, another witness for the plaintiff, was objected to as interested, but was admitted, tie testified, that M'Comb’s and Campbell’s tract extended from Coventry’s down to an ash tree upon the river. He proved the division between Baker, Elias, and him, as above-mentioned. They possessed severally according to the division. Baker and Elias were in possession before the agreement for a division. Baker first lived at the south-west comer of the tract, and built near the same place, east of Stoney Dock, and north of the road leading to the river. They agreed that each should have an equal share of Duncan’s right. In 1783, they chalked out the division, and agreed to have it surveyed,- and it was done by David Cully. Elias took Campbell’s half, and the residue was equally divided among the three. Each party agreed to hold according to the survey. The witness sold to Jonathan Fish, and the defendant got the land from him, and now holds it as his own. In the survey, (the lines of which Baker afterwards retraced and agreed to,j the line extended down to the ash tree upon the river, and then east; and that line east from the ash tree, was the southern line agreed on by the occupants of Duncan and Campbell’s tract. About 60 acres of C. Salisbury’s possession were part of the land divided between them, and purchased from Duncan. Baker purchased the possession of Ludlow, in 1781. Ludlow told the witness that he did not pretend to any thing more than a bare possession ; and this was after the agreement with Duncan and Campbell, Ludlow also said, that the fee of the land was in Duncan and Campbell.
    
    The testimony relative to Ludlow’s confessions about the title, was objected to by the counsel for the defendant, but the objection was overruled.
    The lot purchased from Ludlow was taken by Baker as part of his share of the tract purchased from Duncan and Campbell. Delamatter’s land lay east of Salisbury’s, and north of the south line of M'Comb. Elias was, by agreement, to buy in Delamatter’s claim, and the witness and Baker were to buy off Ludlow’s. On the division of the purchase, it was not considered that Baker had any greater right than the witness and Elias ; neither did Baker, on account of the purchase from Ludlow, claim any more land than Elias and the witness. Baker moved away in 1787 or 1788, and he told the witness, before he moved, that he owed, and could not pay Duncan, and that he must quit the land. The defendant is now in possession of this land. The parties agreed to Culhfs map and division, and the possessions are now held agreeable to the division of 1783. The witness paid a part of the consideration-money to Ludloxv, and on the division, one and a half, or two acres, of Salisbury’s possession fell to him, and he took possession of it, the day after Cully’s survey. When Baker bought of Ludlow, there was a dispute about the land, and Ludlow said that he had bought Salisbury’s possession. One Rakemire 
      lived on Salisbury’s possession, when the witness first knew „ . . it, as tenant of Ludlow, and some part of that possession then appeared old. Whatever claim Salisbury had, Ludlow pretended to have. Ludlow said that Salisbury’s possession belonged to the Duncan and Campbell tract. Elias died two or three years after the division, but he never got (as the witness knew) the south-east third of the south half, which is possessed by Delamatter and Whitlock. The witness paid Baker his portion of what he paid Ludlow. Duncan and Campbell each owned half of the tract sold to the witness.
    The plaintiff then gave the following evidence of title.
    1. A deed from Daniel Campbell to Jacob Elias, for an undivided half of the Ad-Comb tract, dated 24th Aprils 1784; this deed recited, that the sheriff sold, at auction, a tract of land granted by patent to Van Salisbury and Slytinghurst, containing 1000 morgan ; that John Ad-Comb possessed and claimed one-fourth of the tract; that Duncan and Campbell purchased, at the auction, the share of Ad-Comb, and took a deed, and the covenants are against the grantor only.
    2. A deed from John Duncan to Jacob Elias, for one-third of one half, dated 11th October, 1785.. It stated, that the land so purchased by D. and C. was then possessed, in part, by: Jacob Elias, Samuel Howe, and Jonathan Baker.
    
    3. A like deed from Duncan to Howe, dated 4th October, 1785.
    4. A deed from the sheriff of Albany, to Duncan and Campbell, dated 11th June, 1770, of all the right of M'Comb in the patent, being one-half thereof. This deed was objected to, because there was neither judgment or execution to support it, but the objection was overruled.
    The plaintiff then proved the death of John Duncan, and that the lessors were his heirs.
    The defendant proved that, of the two patentees, Salisbury survived, and died, leaving Hendrick Salisbury his heir at law. He then produced a deed from Hendrick, dated 18th July, 173 7, for the lands lying south of an east line from Stoney Dock, to Herman Salisbury, his son, for the consideration of love and affection. He then proved, that Casper Salisbury was a son of Herman; and offered to prove, that Herman entered about the date of the deed under it, and lived and died on the premises, claiming and possessing to the- line running east from Stoney Dock. and that Casper was his heir at law, and on his death succeeded to the estate under the same title, and held it under that title, until Ludlow got possession in 1784, under a judgment and execution. This testimony was objected to, and overruled.
    A verdict was taken for the plaintiff, by. direction of the judge, for one-sixth of the premises, with leave to enter judgment for the whole, or any part, greater than a sixth, which, in the opinion of the court, the plaintiff should be entitled to recover, on the facts in the case, as above stated.
    The cause was argued, at the last August term, by Van Vechten, for the plaintiff, and E. Williams, for the defendant.
   Kent, Ch. J.

now delivered the opinion of the court.

This case presents an intricate mass of facts and minute circumstances, which it becomes necessary to analyse and digest, with care and patience, before we can discover the just inferences which flow from them,

John M'Comb was in possession of a tract of land in Salisbury and Stytinghurst’s patent, adjoining the premises, as early as the year 1764. He continued in possession until the year 1770, when Duncan and Campbell purchased, at auction, of the then sheriff of Albany, the right of M'Comb in the patent, and which was stated in the sheriff’s deed, to be one-half of it. They probably took possession immediately, and peaceably, with the consent of M'Comb, for we find them in possession in 1774, and the former tenant of M-Comb continued in possession under him, until they came into possession, and then he became their tenant. In 1776, Coventry and M'Comb made a division of the north part of the patent down to a certain white-ash tree, and running east from thence to the east bounds of the patent. Upon this division, the south part fell to M'Comb, and the north part to Coventry, under whom it is still held. This partition must have been made by M'Comb, for and on account of Duncan and Campbell, for they were then in possession, under a' title purporting to be derived from M'Comb, and they continued to possess under that division, and thereby ratified the same on their part. This division was so made as to include the premises in question, and to throw the same into the share of the tract which fell to Duncan and Campbell. Before this time, also, Casper Salisbury must have left that part of the premises which he had before held adversely. The precise time when he quitted the premises does not appear; but, according to Pattersoris testimony, it must have been before the war, and when he went away the land was turned into common. This division, in 1776, was the first act of actual ownership which appears to have been asserted and exercised by Duncan and Campbell, over the premises in dispute, and there is good reason to infer, that from that time forward the premises were in their possession. In 1779 or 1780, Baker came on to the tract under Duncan and Campbell, and he went immediately on the south-west comer of the tract where ■ the premises are situated. After he had come into possession under D, and C. he purchased Ludlow’s claim to the premises, and which claim was founded on a purchase, at the sheriff’s sale, of Salisbury's possession. Ludlow never pretended any right to the premises, though he admitted that he was possessed of all the claim of Salisbury, He said that the land belonged to the Duncan and Campbell tract, and that the fee was in them, and that he did not pretend to any thing more than a mere possession. This he told to Baker, who must have considered his claim as being no better, for he continued to hold his possession under D. and C. and never pretended to any right adverse to theirsi The purchase of Ludlow’s claim was made in pursuance of an agreement between the three tenants, viz. Elias, Howe, and Baker, for their common benefit, and merely to quiet their possession. , Baker never pretended that he had acquired any superior right to his co-tenants, and the facts authorise us to conclude, that the purchase-money was paid equally by all of them. This purchase was made before any partition between the three co-tenants, and while it was understood and agreed that each should have an equal share of Duncan’s right. The division made in 1783 between Howe, Elias, and Baker, is conclusive evidence of this understanding between the parties, and of the intentions of Baker. That division was avowedly made by them of the lands which they had, or alleged to have, purchased of D- and C. and the survey by Cully, which ran down to the white-ash tree, was made by their direction and in pursuance of that division, and possessions were afterwards taken by them accordingly. Baker took the premises as his share upon that division, and he traced on the land,- the lines of Cully’s survey, and agreed to them. Baker continued to occupy this land under the title of D. and C. until the year 1787 or 1788, when he quitted the premises, and expressly declared the reason to be, that he was not able to pay Duncan for the land, according to his contract.

Upon these facts, I think it results, that the plaintiff showed enough, in the first instance, to entitle him to recover. He showed a possession of eight or ten years, under a claim and colour of title. It is clear, beyond all doubt, that Baker, who entered and held under the plaintiff, would be concluded from setting up any adverse title, and any person who succeeded to the possession under Baker, would be equally concluded. In what way the defendant succeeded to the possession, does not appear. It is not stated or alleged, that he entered under any pretence or colour of title, and the natural and just inference seems to be, that he entered. upon the possession which Baker had left, as an intruder without title. In that case, the possession of the plaintiff was sufficient to entitle him to recover, and the entry of the defendant must be considered as a trespass, according to the decision, in the case of Jackson, ex dem. Murray and Bowen, v. Hazen, (2 Johns. Rep. 22.) The defendant is either such an intruder, or he entered under Baker; and in either case, he is precluded from questioning the plaintiff’s right of possession. Baker entered, and held for years under D. and C. and they and their heirs are entitled, as against him, and as against all persons who came in under him, or who entered as intruders upon a possession which he left, to place themselves in statu quo, by regaining the actual possession which they had parted with to Baker, upon the faith of a contract. This is a settled rule of law, and founded in manifest justice.

But the defendant set up and offered to show an outstanding title subsisting in some third person ; for he offered to prove, that Casper Salisbury, as heir to his father Herman, held a farm which included the premises, “ until Ludlow got possession in 1784, under his judgment and execution.” The first question which presents itself here is, whether a mere intruder can be permitted to protect his intrusion under an outstanding title in a stranger. I think not. The rule has never been carried so far, and it would be a violation of just principle to apply it to the case of a trespasser who enters upon another’s possession -without pretence of title. But if the defendant could be permitted to set up this defence, the next inquiry is, whether what he offered to show was a subsisting title. It was upwards of twenty years between the time that Ludlow is stated to have acquired the Salisbury title, under a judgment and execution, and the time of trial when the testimony was offered, and I believe the rule is, that where upwards of twenty years of adverse possession have run against an outstanding tide, it shall not be set up. (Buller's N. P. 110. 3 Johns. Rep. 386.) The presumption in that case is, that it is no longer a subsisting title. And this presumption was confirmed by the evidence which the plaintiff had already given in the case, respecting the declarations of Ludlow. The title set up by the defendant, according to the testimony which he offered, resided in Ludlow, under a judgment and execution ; and the plaintiff had shown that Baker purchased that title of Ludlow, and that if it existed any where, it existed in him. This brings us then to this point of inquiry, whether a claim or,title residing in Baker, and which he could not have set up while he was in possession, can fee permitted to be set up by another person who succeeds Baker to the possession, and probably by collusion with him ? I am clearly of opinion, that this ought not to be permitted, and that it would be inconsistent to permit the defendant to protect himself by a claim or title in Baker which Baker himself could not have set up. had he remained in possession. The necessity of guarding against fraud and collusion between tenants and third persons, requires the observance of this rule. I am accordingly of opinion, that, in every view of the case which I can take, the defence offered by the defendant was inadmissible, and properly excluded.

The validity of the two partitions is not to be questioned. It did not require releases to make the division valid. A parol division, carried into effect by possessions taken according to it, will be sufficient to sever the possessions, as between tenants in common whose titles are distinct, and when the only object of the division is to ascertain the separate possessions of each. This was so admitted by the' court in the case of Jackson, ex dem. Vandenberg, v. Bradt. (2 Caines, 174.) Those divisions being binding upon the parties, there did not then exist any objection to the competency of Hoxve as a witness. And as to the declarations of Ludlow, they became material only, in consequence of the defence set up by the defendant, and they then went to show, that the title referred to, was not regarded by the claimant as valid. Those declarations were made material only by the act of the defendant. When they were introduced by she plaintiff, they were immaterial, for they went only to support a fact which appeared sufficiently without them, viz. that Baker never considered himself as deriving any title under Ludlow paramount to that which he derived under Duncan and Campbell, and that his purchase from Ludlow, never affected the dependent relation in which he stood to Duncan and Campbell.

The court are, therefore, of opinion, that the motion, on the part of the defendant, for a new trial, must be denied.

Rule refused.  