
    Jackson, on the demise of G. T. Van Denberg, E. Van Vechten, and W. Elting, against J. L. Bradt.
    If a statute, -without any negative words, declare that all former deeds shall-have in evidence a certain effect, “ provided” such and such requisites are complied with, this does not prevent their being used as testimony in the same manner as if the act had never been passed. The law of the 8th of January, 1762, declaring that every former division of lands, of which there was a map or note in writing under the hands of the proprietors; should be a valid partition thereof provided such map or note be proved before a judge of the supreme court, and a true copy of such map be filed, and such note recorded, does not prevent an antecedent map or deed being read in evidence to prove a partition. Where a decree of the court of chancery has ordered partition, in consequence of rights claimed, the-title of the parties in favor of whom the decree is made, accrues on such decree, and a possession previous to that time cannot be urged as an adverse possession. A tenant at will is not entitled to notice to quit. Tenants in common may make a joint demise in ejectment.
    Ejectment for lands witbin tbe Hosick patent, in Kens-selaer county.
    Gerret Teunis Van Vechten, ancestor of Johannes Van Vecbten and Valkert Van Vechten, was one of the four persons to whom, in June, 1688, tbe Hosick patent was granted. In 1732, it was by tbe owners divided and laid out in lots. Johannes entered on one fourth, and on tbe 30th of October, 1741, by deed of this date, granted to bis three sons-in law, Bernardus Bradt, Hendrick Breese, and Barent Yan Beuren, as joint tenants in fee, one fourth of the undivided lands in the said patent. In 1749, Hen-drick Breese died, On the second of May, 1753, the proprietors of the patent executed a deed confirming the former division, and annexing to each lot the woodland behind it. In the beginning of 1754, Barent Yan Beuren died, leaving Bernardus Bradt the only surviving grantee, named in the deed of Johannes Yan Yechten, *executed in October, 1741. On the 27th of May, 1754, a division was made of the patent by one Bleecker, according to which lot No. 38 was allotted to the representatives of Gerret Teunis Yan Yechten, and a map of the patent made out according to this division, in consequence whereof, Bérnardus Bradt entered and exercised acts of ownership. To the map thus made, was subjoined a partition deed, dated on the 27th of May, 1754, executed by James Yan Cortlandt, Hendrick Yan Ness, by Cornelius Waldron, his attorney, Bernardus Bradt, and John Babtist Yan Rensselaer, the proprietors of the patent, in which, after confirming the divisions of 1732, and 1753, they fully establish the map of Bleeker, covenanting “ for themselves, their heirs and assigns, that the division so made and done, should, from thenceforth, and for ever after, stand and remain.” In 1759, or 1760, Bernardus Bradt authorized John W. Groesbeck to give permission, on his behalf, to persons who might apply to cut saw-logs on No. 38, in which the premises in question lie. In June, 1763, the partition deed was proved before Robert R. Livingston, one of the judges of the supreme court, and from the endorsement of Bleecker upon it, lot No. 38 appeared to have fallen to Bernardus Bradt as representative of Gerret Teunis, and had, together with all other allotments, gone from the time of the partition deed, in conformity to its provisions. In 1771, or 1772, Bernardus Bradt settled the defendant, his son-in law, John L. Bradt, upon the land in dispute, in lot No. 38, giving him leave to occupy and possess it. This be accordingly did down to the day of action brought. In 1786, or 1787, Bernardus Bradt died, leaving six children; namely, Daniel B. Bradt, John B. Bradt, Hendrick Bradt, Grerret Teunis Bradt, Elizabeth, the wife of John L. Bradt, and Mary, the wife of Thomas Lotheridge; who, in March, 1797, by a decision of the court of errors then made, were ordered to convey in severalty to Grerret Teunis Yan Yech-ten, Cornelius Yan Denberg, and eleven others, (the representatives of Yalkert Yan Yechten,) among whom were all the lessors of the plaintiff, one moiety held by them under the grant of 1741, according to the respective ^rights of the parties, and those claiming with them, as set forth in their bill of complaint, under the will of Yalkert Yan Yechten, one of the devisees named in the will of Grerret Teunis Yan Yechten. In pursuance of the order thus made, the parties therein directed did, on the 15th of February, 1798, convey one undivided moiety of the lands, which they, as the representatives of Bernar-dus Bradt, held under the grant of Johannes Yan Yechten, to the grantees named in the decree. In 1799, a partition was made under the act of the legislature, between the heirs of Bernardus Bradt and the representatives of Yal-kert Yan Yechten, on which lot No. 88 was drawn to the share of the representatives of Bernardus Bradt. In November, 1800, all the representatives of Bernardus Bradt, excepting the defendant and his wife and Hendrick Bradt, executed to the persons to whom the conveyance had been ordered by the court of errors, a conveyance for lots No. 1 an;d 2, in the eleventh allotment of lot No. 88 the grantees of which last-mentioned grant, on the 19th of May; 1801, by deed of that date, demised lots No. 1 and 2, in which the premises in question are contained, to all the lessors of the plaintiff excepting Lena Yan Yechten. At the trial of the cause, before Lewis, Ch. J., at the Bensselaer circuit, in May, 1802, the plaintiff gave in evidence the deed of Johannes Yan Yechten, &c. down to the partition and map of the 27th of May, 1754.
    
      To the admission of this tbe counsel for tbe defendant objected; 1. Because it appeared that Henry -Yan. Ness, one of the proprietors, signed by attorney, and no power of attorney was shown ; 2. Because the deed was a mere covenant, and did not contain tbe necessary granting words, to sever the eslate before held in common ; 3. Because it did not appear that tbe map bad been filed, or tbe certificate of proof recorded.
    These objections being overruled, tbe plaintiff went on and gave in evidence tbe possession, according to tbe map, tbe decision of tbe court of errors, the subsequent conveyances, and tbe possession of the defendant, who, on bis part, offered the partition of 1799, and that lot No. 38 was drawn to the share of the representatives of Bernardus Bradt: he also offered to prove his entry into possession of the premises, thirty-three years *ago, under the permission of Bernardus Bradt, his father-in-law, and a continuance of that possession from its commencement down to the day then present. This the court overruled, on the ground, that the plaintiff’s right of entry accrued only from tbe time of the decree in chancery, on which the appeal in the court of errors had been brought, and, therefore, the possession of the defendant could not run against it. The defendant then insisted, 1. That if his possession was not' allowed, notice to quit was necessary; 2. That he -was entitled to compensation for bis improvements ; 3. That there being only two demises in the declaration, one a joint demise from Gerret Teunis Yan Denberg, Ephraim Yan Yechten and William Elting, the other a demise from Lena Yan Yechten solely, the plaintiff had not shown such a title in his lessors as would entitle him to recover. These objections being also overruled, tbe jury found for the plaintiff a verdict for ten-twelfths of the premises in question. Application was now made for a new trial.
    Woodworth, (Attorney-General,) for the defendant.
    The map of 1754 ought not to have been received in evidence. By tbe 6tb section of tbe act of January, 1762, yol. 1; Colon. Laws, 408; Smith, vol. 2, p. 242, it is declared, that every former division of lands, of which there was a map, or note in writing, under the hands of the proprietors, should be a valid partition, provided such map, or note, be proved bofor'e a judge of the supreme court,'and a true copy of such map filed, and such note recorded. Neither provision was complied with, and therefore the evidence was improperly received. Had Bernardus Bradt been the plaintiff, notice to quit must have been given, as the entry of the defendant was under his permission. At the time this permission was given, Bernardus Bradt was the sole legal owner of the estate. The lessors coming in by the decree in chancery into his estate, must take it with all those equitable claims and rights to which it was subjectin the hands of Bernardus. Of these, notice was one. But if they deny any privity to his estate, then our possession must avail, for the right of the lessors did not accrue on the deree; they were only settled and ascertained by it. Indeed the contrary is the fact; .*the decree was founded on, and arose from, their rights, against which we show a possession of thirty-three years. That tenants in common cannot make a joint demise is a settled point. 2 Wils. 232. Heatherly, on the demise of Worthington and Tunnadine, v. Weston and others.
      
    
    Henry, contra.
    Had the statute referred to, contained any negative words, that “ without such recording,” &c. the map should not be evidence, the arguments on the other side would apply. The map and deed were not offered as testimony under the act; but in the same manner as an old terrier, or survey, having weight from its antiquity. This circumstance gives validity to the deed itself; for after such sucb a lapse of years, a power of attorney to execute must be intended, as possession bad gone according to the instrument. Doe v. Prosser, Cowp. 217.  On the point of our right of entry being tolled, it is sufficient to say the possession to effect that must be adverse. Here both parties derive under Bernardas Bradt, and our title did not accrue till the decree in 1797. Notice to quit was perfectly unnecessary. To be entitled to it, there must exist the relation of landlord and tenant between the parties, by reserving a rent. None such is shown here. Woodfall’s Law of Landlord and Tenant, 160. Besides, the offering to set up an adverse title did away all right to notice, had any ever subsisted. No force can be allowed to the objection against the demises. The action itself is a mere form. The court, therefore, will so direct it, as to be entirely conducive to the justice of the case.
    Woodworth, in reply.
    It is conceded, that had the statute contained negative words, the map could not have been received. We contended the proviso was equivalent; otherwise it is totally inoperative. As to the reservation of rent, it certainly is not necessary that it should be made, to create a tenancy at will; and what formerly were tenancies at will are now held to be tenancies from year to year. Notice, therefore, was indispensable.
    
      
       See Jackson, v. Bowen, 1 Caines’ Rep. 360, n. (a.)
    
    
      
       A further point was made on the subject of compensation for the ?m provements, but as the court did not nsake any decision upon it, and ordered a further argument on that question, :t is unnecessary now to detail what was urged on the subject.
    
    
      
      
         Thirty-six years’ exclusive possession by one tenant in common, held sufficient to warrant a presumption of ouster of the other. See Warren ex dem. Webb v. Greenville, on a recovery 40 years old, the court presumed a surrender of the life estate to make a good tenant to the praecipe. But in Goodtitle v. Chandos, 2 Burr. 1012, where the possession had not gone according to the deed, the court would not presume a surrender. The rule is, that where there is a fact to warrant a presumption it will be made; but there must be some circumstance oui of which the presumption is to arise. This rule rests on the maxim of ex nikilo, nihil sit. Van Dyck v. Van Beuren, 1 Caines’ Rep. 90, n. (a,) to which, after the principle for which Keen v. Earl of Effingham, 2 Stra. 1261, is cited, add, “ so where a will was adduced to prove a tenancy in common, but abandoned as prooij on account of the insanity of the testator being established, the door was shut against the presumption of any other title.” Jackson v. Vosburgh, 9 Johns. Rep. 210.
    
   Kent, J.

delivered tbe opinion of tbe court. IJpon this case several questions bave been raised on tbe part of tbe defendant, on a motion for a new trial. 1. It was contended tliat tbe map and deed of partition were not admissible, *because a copy of the map had not been filed, and the note of the division recorded. The act of tbe 8th January, 1762, s. 6, declares, that every former division of lands, of which there was a map, or note in writing, under tbe bands of tbe proprietors, should be a valid partition thereof, provided such note be proved before a judge of tbe supreme court, and a true copy of such map be filed and such note recorded. If the condition on which all such previous partitions were declared valid, be not performed, the transaction is left as it was before, and is to be considered independent of the act. The division, and the deed between the proprietors by which they covenanted to abide by it, and the separate possessions taken in pursuance of that division, were sufficient to sever the tenancy in common, which consisted in nothing but a unity of possession. The parties became concluded and bound by that act, and the map and deed being proved before a competent officer, and possession having gone accordingly, they were admissible as legal evidence in the case.

2. .Another objection taken was, that the defendant was entitled to notice to quit. It has been frequently decided by this court, that a mere tenant at will does not require notice to quit. The circumstances under which the defendant was placed on the premises, prove him to have been strictly a tenant at will. There were no terms prescribed. nor any rent reserved, or demanded, or paid. The defendant ivas merely directed to occupy the land, which gave him more the character of a bailiff than a tenant. There is nothing from which we can consider this to have been a holding from year to year. The reservation of an annual rent, is the leading circumstance that turns leases for uncertain terms into leases from year to year. This was, therefore, not a ease requiring notice to tbe defendant.

3. The last objection made by tbe defendant to the verdict was, that no title corresponding with a joint demise by three of the lessors was shown. The title shown proves that the lessors of the plaintiffs are all tenants in common. If this objection be well made, the plaintiff is still entitled to recover the proportion of the premises belonging to the lessor, who demised separately, and the recovery must be ^modified accordingly. The point has been frequently declared and adjudged, that tenants in common cannot make a joint demise, and yet the books frequently speak in terms inconsistent with this position. Littleton says, that two tenants in common may make a lease of their tenements to another for a term Of years, rendering rent, and may, in consequence thereof, have a joint action against the lessee for the rent. So it is said that théy may join in' a lease to a third person, and that lessee make a lease to try the title; and again, one tenant in common may make a demise of the whole premises, and under that demise may recover an undivided moiety. The case of Heaiherly, on the demise of Worthing' ton and Tunnadine, v. Weston and others, which was the latest and most solemn decision against the competency of a joint demise, assigns as a reason, that the estates of tenants in common are several and distinct, and there is no privity between them. But it appears to me, there is the very privity requisite in this case to make a lease — the unity of possession. The lease is only a transfer of the possession which is common between them. It is no transfer of the rights of property, which is distinct, and in which they truly have no privity. The action of ejectment is founded on the fiction of an ouster of possession merely, and I see no reason why tenants in common may not act jointly in disposing of their joint possession. If they can in any case make a joint lease, as-the books admit, tbeir joint lease in the present case is sufficient, because the fiction is answered, which only requires a lease competent to transfer the possession for a giren term of years. And since this is a r.ere fiction, and the whole action liberally considered, and the recovery, though it be lor the possession onljq yet it does, in effect, enure to each lessor, according to his title, we ought to give effect to the demise, if, by any possibility of law, it can be adjudged good. If the action of ejectment be considered distinct from the fiction of lease, entry, and ouster, two tenants in common could not join at all in the action ; for it is a general and settled rule, that in all actions real and mixed, tenants in common must sever, because they have several freeholds, and claim by several titles. They cannot, therefore, join *in a writ of right, or in an action of assize: each must have a separate assize for his moiety. Hence, Coke lays it down, that tenants in common shall not join in an ejections jirmce, nor in a writ of ejectment de garcl, or a quaere ejecit infra terminum &c., for these actions concern the right of lands, which are several; but since the introduction of a fictitious lessee, tenants in common have been permitted to join in an action of ejectment, and the practice has been-only to require a fictitious lease 'from each tenant in common. The old rule is already completely evaded by means of the fiction. In opposition to Littleton and Coke, it has long been the established practice to permit tenants in common to join in the mixed action of efec-tione firmae, and when that action has become in form only a mixed action, and in substance a real action, for trying the title of the fee. Having carried the fiction thus far, we ought not now to suffer ourselves to be entangled in this very fiction, and sacrifice substance to form. If two tenants in common are competent to join in the lease or transfer of their joint possession, it is sufficient; and for these reasons we must hold, even in opposition to several authorities, that it has now become immaterial whether tenants in common declare on joint or separate demises ; and accordingly we are of opinion, on all tbe points, tbat the defendant take nothing by his motion.

New trial refused. 
      
      
         The English decisions do not seem to sanction the full extent of the position in the text, yet they avail themselves of the most trifling circumstance to obviate the formal objection of the demise being joint, when the title is several; therefore payment of one entire rent to the agent of two trustees, appointed at several times, estops the tenant from showing, in an ejectment on a joint demise, that the lessors are tenants in common. Doe v. Grant, 12 East, 221. Though several parceners constitute but one heir, and the entry of one for a condition broken enure to the benefit of all, she may, on her sole demise, recover her own share. Doe v. Pierson, 6 East, 113. For the sole demise of a joint tenant to the plaintiff in ejectment severs the joint tenancy, and entitles to a recovery for the lessor’s proportion. Denne v. Judge, 11 East, 287; Roe v. Lonsdale, 12 East, 39. If all the joint tenants make several demises to the plaintiff, he is entitled to recover the whole, for all the estate is vested in him. Doe v. Read, 12 East, 57.
     
      
       As to notices to quit, cases on the subject collated and compared in Jackson v. Miller, 1 Cow. 747. As to tenant at will, see Nichols v. Williams, 8 Cow. 13; Jackson v. Vincent, 4 Wend. 633; Jackson v. Salmon, 4 Wend. 617; Rowan v. Lytle, 11 Wend. 613; Bradley v. Covel, 4 Cow. 349; Phillips v. Covert, 1 J. R. 1; Joes v. Joes, 13 J. R. 235; Young v. Ellis, 13 J. R. 118; Jackson v. Aldrich, 13 J. R. 106; Jackson v. Babcock, 4 J. R. 418; Van Alen v. Rogers, 1 J. C. 33; S. C. 2 C. C. E. 314; Jackson v. Bradt, 2 Cai. R. 169; Jackson v. Wilson, 9 J. R. 267.
     