
    Schermerhorn vs. Negus.
    Recitals in an ancient deed of land are not evidence against a stranger, unless it be shown that the land or some part of it has been held under the deed.
    Accordingly, where the plaintiff in ejectment, who claimed title as one of the devisees of S., gave in evidence a deed executed by L. and others nearly 70 years before the trial, which, after reciting that partition had been made of a tract of land before granted to 13 persons by letters patent, and that a part of the tract had since been sold to the grantors, purported to convey two lots of the part thus sold, including the land in question, to S. and one G.; and it was further shown, that G. had subsequently released to S. all his interest in the two lots, but there was no evidence that any part of these lots had ever been possessed by L. and others, their grantees or those claiming under them: Held, that no title was shown in the plaintiff which would authorize a recovery; and this,"though there was proof that other lands, not a part of the two lots, had been occupied under S.’s wül.
    Ejectment, tried before Willard, C. Judge, at the Saratoga circuit in December, 1840. The plaintiff gave in evidence a deed in fee from Dirk Lefferts and three others to Eyer Schermerhom and John Glen, dated January 27, 1773. The deed recited that, pursuant to an act of the colonial legislature, certain commissioners had lately made partition of a tract of land called Kayaderosseras, which Queen Anne had granted by letters patent in 1708 to thirteen persons therein named; and pursuant to the act the commissioners had set aside two parcels of land—one containing upwards of 16,000 acres, and the other containing 5080 acres—to defray the charges and expenses of the partition; that the commissioners, pursuant to the act, had sold and conveyed both of the said parcels of land 'to Lefferts and others (the grantors in the deed given in evidence) in fee; and that the 5080 acre tract had been surveyed and laid out into twenty-four lots, numbered from 1 to 24 inclusive. The deed then conveyed lots No. 13 and 19 in this tract, to Schermerhom and Glen. The defendant was in possession of 15 acres of land, being part of the west half of lot No. 19, situate in Charlton, Saratoga county, and the plaintiff claimed to recover an undivided share of the 15 acres. The plaintiff also gave in evidence a deed from John Glen, dated January 15, 1787, by which .he released and conveyed his interest ' in the two lots to Ryer Schermerhom in fee. Ryer Schermerhom died in 1793, having by his will, dated 8th August, 1792, devised several parcels of land in Schenectady and elsewhere to his children; and having also devised the lots in question to his six children in equal shares for life, with remainder in fee to the children of each devisee. Questions were made upon the construction of this devise and the proof of the will, which need not be stated. Jeremy, one of the sons and devisees of Ryer Schermerhom, died in 1836, leaving eight children, of whom the plaintiff is one. Ryer Schermerhom was never in possession of the whole or any part of the lots in question, nor did it appear that his grantors or devisees had ever been in possession. Bartholomew Schermerhom, one of the sons and devisees of Ryer, testified that other real estate (not being part of the lots in question) had been held under the will. He also testified that he “ had some of the lands in the said lots No. 13 and 19 under the Glen deed, and sold it since testator’s death.” The defendant moved for a nonsuit on the ground, among others, that no title or possession had been shown in Ryer Schermerhom or his grantors. The motion was overruled ; and after other questions had been made, a verdict for the plaintiff was taken by consent, subject to the opinion of the court on a case. The plaintiff now moved for judgment upon the verdict.
    ‘ H. V. D. Yan Epps, for the plaintiff.
    
      W. Hay, for the defendant.
   By the Court,

Bronson, J.

Aside from the recitals in the deed from Lefferts and others in 1773, there is no evidence that they had any paper title to the 5080 acre tract; and neither they nor their grantees, so far as appears by this case, have ever been in possesion of any portion of the land. Ryer Schermerhorn never entered under the deed from them and the release from Glen, nor have his devisees ever been in possession. I do not understand from the testimony of Bartholomew Schermerhorn, the son of Ryer, that he had ever been in possession; but only that he had, or was entitled to a portion of lots No. 13 and 19 as devisee, and had sold the land since the .testator’s death. It does not appear that his grantee ever entered.

Proof that other lands, not being part of the two lots, had been held under the will, may have been proper evidence for the purpose of establishing the will; but it had no tendency to prove that the testator had title to the lots in question.

Where possession has been taken under an ancient deed, the recitals in it may sometimes be resorted to for the purpose of presuming a grant or a pedigree in accordance with the facts recited. (Jackson v. Russell, 4 Wendell, 543. S. C. in error, 22 Wendell, 277. Carver v. Jackson, 4 Peters, 83, 4. Stokes v. Dawes, 4 Mason, 268.) But here, the defendant is a stranger to the title under which the plaintiff claims; and the recitals in the deed of Lefferts and others are not evidence against him, without showing that the land, or seme portion of it at the least, has been held under the deed.

It is of course unnecessary to enquire whether the will of Ryer Schermerhom was duly proved, or what title passed under it.

Judgment for defendant.  