
    John H. Bowie v. Augustus H. Brahe.
    A person who enters into the possession of land under a conveyance is presumed to claim title to no more than his deed embraces.
    The presumption may be repelled, but it can only be so by positive evidence of an adverse claim.
    A conveyance from the true owner during the possession of a person, who is shown to be a mere trespasser, is valid.
    "Where there is no dispute as to the facts, the question of adverse possession is a. question of law.
    Judgment for plaintiff affirmed with costs.
    (Before Duer, Campbell, and Slosson, J.J.)
    Feb. 9, 1854.
    
      Tms was an action by the plaintiff, claiming to be owner in fee, to recover the possession of a strip of land in the Fourth Ward of the city of Hew York, on the northerly side of Ferry street, two inches front and rear to four and a half inches in the centre, to the depth of fifty-four feet five inches, which the plaintiff claims to be part and parcel of the easterly side of his lot, number twenty-five (25) Ferry street, being the second lot easterly from Jacob street, and that he was entitled to possession of it, which he alleged to be wrongfully withheld by the defendant. v
    The defendant denies the plaintiff’s complaint and right of recovery, and avers title and rightful possession in himself, which is denied by the plaintiff.
    The action was tried upon the issues on the 15th day of December, 1852, at a regular trial term of this court, before Chief-Justice Oakley and a jury duly empannelled for that purpose.
    On the trial the following facts appeared.
    About the year 1804, Samuel Bradhurst by deed conveyed to Cornelius Hoffman a lot known as number five .(5) on a map of the Crupel Bush Swamp, fronting on Ferry street, being the second lot southeasterly from Jacob street, in the Fourth Ward of the city of Hew York, as laid down on said map, commencing twenty-five feet easterly of Jacob street and running easterly on Ferry street twenty-five (25) feet; being twenty-five (25) feet front and rear, and one hundred (100) feét deep, as appears by said map. Said lot by descent through the daughter of said Hoffman and wife of David Bryson, came to Margaret H. Bryson, and was in the possession of the family from about 1804 until the first day of May, 1852. On the last-mentioned day the said Margaret H. Bryson conveyed said lot known as number twenty-five (25) Ferry street, with others, to the plaintiff, describing it substantially as follows:— Beginning at a point on the northeasterly side of Ferry street, twenty-five (25) feet southeasterly from the northeasterly corner of Ferry street and Jacob street, running thence northeasterly along the southeasterly line of land now of James R. Smith, formerly of Jacob Lorillard, parallel with Jacob street sixty (60) feet, thence southeasterly parallel with Ferry street twenty-five (25) feet, thence southwesterly parallel with Jacob street sixty (60) feet to the northeasterly side of Ferry street, thence northwesterly along said northeasterly side’ of Ferry street twenty-five (25) feet to the place of beginning; and the plaintiff then entered upon the actual possession of the same, except as hereinafter mentioned.
    The defendant, on the 8th day of March, 1844, purchased lot number twenty-seven (27) adjoining the plaintiff’s lot, being the third lot from Jacob street, and described in the deed to him as follows:—Beginning at a point on the northerly side of Ferry street, distant fifty feet one inch (50,1) southeasterly from Jacob street, running thence northeasterly along land now or late of D. Bryson and J. Lorillard, one hundred and eighteen feet three inches (118,3), thence southwesterly twenty-five feet seven and a half inches (25,7^), along land now or late of Jacob Lorillard and David Bryson, thence southwesterly on a straight line to Ferry street to a point distant twenty-five feet and half an inch (25,0-1) southeasterly from the place of beginning, and thence northwesterly along Ferry street twenty-five feet and half an inch (25,01), to the place of beginning; be the said dimensions more or less. At the time of the purchase there was an old house on the lot, which had stood there over thirty years, which the defendant, soon after his purchase in April, 1844, tore down and removed, and erected on the same lot a four-story brick building, the westerly wall of which, as found by the verdict in the cause, encroached upon the easterly side of the first-described lot number twenty-five (25) Ferry street, one inch and seven eighths of an inch (1 §) from front to rear in a straight line; which building has since been owned and occupied by him.
    There was an old fence along the easterly side of plaintiif’s lot, which had stood so long that it was rotting; this fence, some little time previous to defendant’s building, had been taken partially down; and the defendant, in erecting the westerly wall of his own building, extended it Obeyond the line of the old fence, so as to encroach upon lot number twenty-five (25) Ferry street.
    The starting point from which the parties, by their deeds, must measure to find the locality of their lots, is • corner of Jacob and Ferry streets, and measuring from this corner, as the same was ascertained, it appeared by different measurements that the defendant’s building was bn the plaintiff’s lot, as described by the deeds and ascertained by the measurements, one and seven eighths of an inch (If).
    
      David McCarter, a witness called and sworn on the part of the plaintiff, testified among other things, as follows:—I knew Cornelius Hoffman sixty (60) years ago; he died in 1816, leaving one daughter named Margaret.
    
      Peter M. Bryson, another witness, called and sworn on the part of the plaintiff, testified as follows:—1‘ My father’s name was David Bryson. His first wife was Margaret Hoffman, daughter of Cornelius Hoffman. I, with my brother, C. H. Bryson, measured lot number twenty-five (25) Ferry street, in 1844, before defendant began building. I was there about the time he began building. He came over on our lot about two inches (2). I told the defendant at the time he began to break ground after a foot or two. I gave him formal notice for my father, as owner of number twenty-five (25), that he was encroaching, and if he proceeded, it was at his peril. Brahe said he must have twenty-five (25) feet, and if he could not get it on the east side he must have it on our side ; said somebody had encroached on him on the east side, and he must have twenty-five feet from somewhere. He went on notwithstanding, and built. I know of the deed given to the plaintiff in May last by Miss Bryson. After this conveyance, I conversed with Brahe on many occasions. Brahe admitted he had encroached, and said my father had notified him, and I had, and my brother had, and he replied to me as he had before, that he must have twenty-five feet (25), and as he could not get it on the east side, he took it off our side.
    The defendant insisted that the plaintiff could not, as a matter of law, recover, for the reason, among others, that the defendant had held adverse possession and occupied the premises in question eight (8) years and over, the plaintiff being a subsequent purchaser.
    The plaintiff maintained,
    First. That the Code requires all actions to be brought in the name of the party in interest.
    
      Second. That the defendant did not hold possession of the ground in question by any title adverse to that of the plaintiff’s grantors, nor did he claim so to hold it. Because,
    1st. Defendant’s deed did not include the ground claimed by the plaintiff.
    2d. Notice was given by and on behalf of David Bryson, to defendant at the time he built, that he was encroaching upon lot number twenty-five (25).
    3d. The defendant admitted at the time he commenced building, and also subsequent to the conveyance to the plaintiff, that he had thus encroached.
    4th. Defendant never claimed to possess said ground by virtue of any title.
    The question as to the effect, on the plaintiff’s right to recover in this action, of the defendant’s possession at the time of the conveyance to the plaintiff, was reserved by the justice, and the verdict as to this question was taken for the plaintiff, subject to the opinion of the court, but upon all other grounds the jury rendered an absolute verdict for the plaintiff, for one inch and seven eighths of an inch front and rear in a straight line.
    The motion for judgment upon the verdict was made before Mr. Justice Boswobth at-Special Term. He gave judgment for the plaintiff, and delivered the following opinion.
    Bosworth, J. The jury have found all the questions of fact in favor of the plaintiff, and he is entitled to a judgment on the verdict, unless the character of the plaintiff’s possession of the premises at the time his deed was executed was such as to render it invalid.
    The defendant’s deed, does not include the premises, nor did he ever claim that it did. He did not take nor hold possession under a claim of title.
    He wanted twenty-five feet in width, and as he could not obtain it where the deed located it, in consequence of an encroachment on his east line, he took enough to make the width by occupying a part of the land of the present plaintiff.
    Possession by a third person, of granted premises, does not render the grant by the true owner void, unless the person in possession claims title adverse to that of the grantor. (1 R. S. 739, § 147.)
    If a" person enter on lands without pretence of title, his possession will be deemed the possession of the true owner. (3 I. R. 269.)
    It is the claim of title that makes the possession of the holder of the land adverse to that of the grantor. (LaFrenebors v. Jackson. Ex.’r dem. 8 Cow. 703 (per Jonesoh.) ; 5 Cowen, 92.)
    Possession by a mere trespasser claiming no title, does not make a deed executed by the true owner during the continuance of such possession void.
    The possession of the defendant not being under a claim of title, the plaintiff must have judgment on the verdict.
    The defendant appealed from the judgment at Special Term, and upon this appeal the case was now heard.
    
      Radcliffe, for the appellant,
    insisted that the judgment ought to be reversed, and the complaint be dismissed, or a new trial be granted, upon the following grounds.
    I. Ejectment is a possessory action, and lies where the plain- . tiff’s right of entry exists. It is to recover, the possession wrongfully detained—not the seisin or freehold. (Lord Mansfield, in Atkyns v. Harde, 1 Burr, 114; Jackson v. Deifendorf 3 J. R. 269.) Brahe has been in the possession and occupancy of the premises, not only by sufferance and peaceably, but holding adversely, as against the world, for eight years; and he has at least acquired a possession and tenancy entitling him to notice. (Doe d. Kerby v. Carter, 1 R. & M. 237; Doe d. Cates v. Somerville, 6 B. & C. 126.) Bowie, being a subsequent purchaser (with full notice), cannot recover without first giving notice of his deed, or demanding possession. (Cates v. Somerville, and Kerby v. Carter, before cited; Hall v. Robinson, 2 Comstock, 293.)
    H. When this action was commenced, Bowie had no right of entry, title, or cause of action, as Brahe, at the date of Bowie’s deed, had • been, and was then, holding adversely. A deed executed by the true owner, while there is an adverse possession, is void as against such possessor, although it is as good as against the grantor. (Jackson v. Otis, 8 W. R. 440 ; Jackson v. Demarest, 9 J. R. 55 ; Cole v. Irvine, 6 W. R. 634; Livingston v. Peru Iron Co., 9 W. R. 511; Livingston v. Proseous, 2 H. R. 526 ; Bream v. Cooper, 5 Munf. R. 7.) Bowie is not permitted to say that Brahe did not claim adversely. In Livingstone v. Proseous, which is in point, it is not pretended that the possession should be under a proclaimed title ; it may be presumed as against a subsequent purchaser. The title of Brahe is adverse. There has been an actual occupancy, a possessio pedis, definite, positive, and notorious: and this constitutes an adverse possession, though there be no claim of title. (Hammond v. Warfield, 2 Har. & John. 151; 2 Mott & McCord’s R. 243; Forney v. Lenox, 8 Serg. & R. Rep. 392.)
    III. Bowie had a cause of action under his deed against Miss Bryson, his grantor, but not against Brahe ; and he can only maintain an action against her, Brahe holding adversely at the date of Bowie’s deed. (Jackson v. Otis, 8 W. R. 440 ; Livingstone v. the Peru Iron Co., 9 W. R,. 511; Cole v. Irvine, 6 H. R. 634; 2 H. R. 526.) The plaintiff cannot have two causes of action—one against either party for the same thing.
    IY. Miss Bryson, the grantor, and not Bowie, has the title, and is the only party who can sustain the action, if sustainable, against Brahe, Brahe continuing, as he has, to hold possession after, and notwithstanding Bowie’s deed. And a recovery by the grantor, in such case, would enure to the benefit of Bowie, the grantee. (Livingston v. Proseous, 2 H. R. 526.)
    Y. The statute and the law relating to this kind of action is not repealed or altered by the Code. (Code, § 455.) Bowie cannot recover under the statute. (2 R. S., 3d ed., 400, 401, &c.) Under this statute (2 R. S. 401, § 7) it is a requisite that the plaintiff should aver in his declaration that, on some day thereon to be specified, and- which shall be after his title accrued, he was possessed of the premises in question—and that the defendant afterwards, on some day to be stated, entered into such premises, and unlawfully withholds possession. These facts are neither averred nor proven, nor do any such facts exist. The action is a statutory one, and without merits, and Bowie should not recover, unless he brings himself within the statute.
    
      VI. The main ground upon which Bowie relies for a recovery, and upon which Hr. Justice Bosworth bases his opinion, is that Brahe, in taking possession in 1844, was a trespasser, claiming no title, and his possession, therefore, was the possession of the true owner.
    Bowie cannot recover on this ground, for the following reasons:
    1. If Brahe was originally a trespasser, Miss Bryson, the plaintiff’s grantor, had no right of action for the trespass, the statute of limitations has not only defeated that action, but cured the trespass; and Bowie must so look upon it. He cannot now take advantage of a wrong which .has been settled by an acquiescence between the original parties of eight or ten years. Ho matter how tortious the acts of Brahe, his possession, being certain and notorious, is good as against the- world. (Munshower v. Patton, 10 Serg. & R. Rep. 334.) 2. Miss Bryson, the grantor, at the time of the execution and delivery of her deed to Bowie, had no right or cause of action in trespass against Brahe ; and Bowie, by his deed, certainly took or acquired no more right or title than his grantor had. Bowie, therefore, can claim nothing by reason of Brahe’s alleged original trespass, or wrongful entry; he stands only in the light of an assignor under the Code, and is not entitled to the aid of that class of cases relied upon on the other side protecting the real owners and grantors against wrongful entries and possession without claim of title. Brahe must at least be considered as holding adversely, claiming title as against Bowie. 3. But suppose Bowie to stand in the light of a grantor or true owner in this action, the question then presents itself whether Brahe has held adversely claiming, title ? The answer is, 1. That he having erected his house upon the premises, and his long uninterrupted occupancy shows a stronger claim of title than a naked possession with a mere verbal claim of title; 2. That the claim of title must be presumed from the case, it being a question of fact for the jury; and if it had been disputed, would have been passed upon by them ; and besides, if the question now be looked into, it will be seen that the evidence, though one-sided, fails to show that Brahe claimed no title.
    VH. The theory, as before stated, on the part of Bowie, is, that at the time of the execution of his deed by Miss Bryson, she had an action of trespass or for wrongful detention against Brahe, and that by his deed he only took her right, title, and cause of action against Brahe, and now stands as the assignee claiming to be the party in interest under the Code prosecuting the action. It is well understood that a mere right of action for a wrong or tort is not assignable; and this action can only be sustained by Bowie upon his deed (which here is merely in the nature of a bill of sale or assignment), and a demand of possession thereunder before suit, as the action proceeds upon a wrong. (Hall v. Robinson, 2 Comstock, 293.) An assignment of a disputed title to land, or where the vendor is not in possession, is prohibited by the statute. (2 R. S. (1 ed.), 691, sections 5 and 6.)
    YIU. The jury found only the fact that Brahe had one and seven eighths of an inch off lot No. 25; no other question of fact was submitted, passed upon, or tried by the jury. The question as to Bowie’s right of recovery is solely a question of law, and the only one now to be considered. The verdict of the jury, and the question as reserved and presented by the case, concedes that Brahe held adversely claiming title, and it cannot be gainsaid in any way now attempted. The court will not look into evidence tending to prove such facts upon a case or bill of exceptions. (Jackson v. Jay, 9 J. R. 102; Clapp v. Bremaghan, 9 C. R.; Scheuben v. Jackson, 2 W. R. 14.) The question whether there was an adverse possession at the time of the execution of Bowie’s deed is a question of fact for the jury, and is not an interlocutory question to be decided by the court. (Stephens v. Dewing, 2 Aiken R. 112 ; Pray v. Pierce, 7 Mass. R. 383.) Whether or not a possession is adverse is to be determined by the jury, and not by the court. (Jackson v. Jay, 9 R. 112; Jackson v. Stephens, 13 J. R, 496; Gayetty v. Bethune, 14 Mass. R. 55; Jackson v. Porter, 1 Paine’s R. 466; McClung v. Ross, 5 Wheat. R. 124; Cummings v. Wyman, 10 Mass. R. 468.) The procuring of the evidence of witness Bryson in the case, is an attempt to .deprive Brahe of the benefit of the sole question, which was, as to the legal effect of Brahe’s adverse possession, reserved for the opinion of the court; the evidence should not be considered in the case.
    
      IX. If Bowie should finally have judgment, it cannot be carried out or executed; the sheriff could not give possession, Bowie having built the wall' of his house close up and against Brahe’s house, and the locus in quo / for this reason the defendant should have judgment.
    
      Delavan, for the plaintiff, was stopped by the Court.
   By the Court.

We can require no argument in support of this judgment.

When a person enters into the possession of lands under a deed it is a known presumption of law that his claim of title is limited to the premises described in his deed. This presumption is not "indeed jwris and dejurre. It may be repelled, but it can only be so by positive evidence that the person so entering claimed 'to be the owner of more than his deed embraced. There was not only no such evidence in this case, but it was clearly proved that the defendant, as to the strip of land now sought to be recovered, was a wilful trespasser.

It was not necessary that the question of adverse possession should have been submitted to the jury. There was no conflict of evidence, and where the facts are undisputed, adverse possession is purely a question of law. As such it was properly reserved and has been rightly determined.

As there was no adverse possession there is no pretence for saying that the deed from which the plaintiff derives his title was void when executed. In judgmenffof law the grantor was not out of possession.

The judgment is affirmed with costs.  