#### Van Rensselaer and others *vs.*H. G. & P. G. Van Wie.

A *possession of sixty years*and a *continued claim*to be the *owner of premises subject to a certain annual rent*to be paid to the landlord, was held in this case to be no bar to a recovery in ejectment after notice to quit, where the possessor at the time of suit brought *admitted*that he *had not a lease*of the premises, and only *claimed to he entitled to a lease.*

This was an action of *ejectment*tried at the Albany circuit in October, 1838, before the Hon. John P. Cushman, one of the circuit judges.

The suit was brought in 1837, to recover the possession of a tract of land forming a part of and called *Van Wié’s point*on the Hudson river. The plaintiffs deduced title to themselves, under letters patent bearing date in 1704, granting Killian Van Rensselaer the *manor of Rensselaerwyclc.*One of the plaintiffs was *Stephen Van Rensselaer,*and the others claimed under him ; and the premises in question are part of the manor lands. An agent of Stephen Van Rensselaer testified that he had been an agent in his office for upwards of 33 years, and that in 1835, he served on the de- [ *532 ] fendants a *notice to quit*the premises. On his *cross-examination he stated that he never knew Stephen Van Rensselaer to be in the personal occupancy of the premises in question ; that when this suit was Commenced, the defendants claimed to be entitled to a lease; that within the *532last four years he had conversed several times with the defendants, and that they always claimed to be the owners of the premises subject to a certain annual rent payable to Stephen Yan Rensselaer, and that they were entitled to a lease in perpetuity. They admitted they had not a lease and did not pi’etend to have any paper title to the premises in question. The first time the defendants pretended to be entitled to a lease was in 1835. Upon this evidence the plaintiffs rested.

The defendants read in evidence by consent, subjeetto exceptions, a deposition of John H. Burhans, who testified that he had known the premises for *sixty years,*that when he first knew them, *Gerrit Van Wie,*the father of the defendants, was in passession, and continued in possession until his death, when he was succeeded by his sons the defendants. That whilst *Gerrit*was in possession he cleared up the land, made fences, built or rebuilt a dwelling house and out-houses on the premises. That the defendants, since they came into possession, have occupied the. premises for the purposes of husbandry, and as farmers use and occupy their farms: have cleared part of the lands, made fences and repaired buildings. That the land was cleared up at different times as far as Alexander’s line, (the premises claimed, are stated in the declaration to be bounded on the *west*by property of James Alexander,) and that previous thereto, old Mr. Yan Wie, and since his decease, the defendants cut wood on the lot west of the cleared land.

. The following portions of the deposition of *Burhans*were offered to be read by the defendant’s counsel, but were objected to on the part of the plaintiffs, and *overruled*by the circuit judge. 1. question : “ While Gerrit Van Wie was in the possession of said premises, what (if any thing) have you heard him say relative to his being the owner of the same ?” 2. Part of the deposition: “In the lifetime of the defendants’ father, the old man was the reputed owner *of the premises in question ; it Yan [ *533 ] was spoken of as his farm., The premises have been called Wie’s point at least thirty years last past.” 3. Part of the deposition: “ Never knew of the defendants’ claiming except under their father; has always understood that the defendants claimed to be the owners of the premises ; never heard the defendants or either of them admit that Stephen Yan Rensselaer had any right, title or interest in the premises, except as the recipient of certain reserved rents and 4. Part of the deposition : “ The defendants, since their father’s decease, have occupied the premises and been reputed in the neighborhood as the owners thereof. The defendants were permitted to vote at elections, held under the old constitutional qualification of voters, on the strength of their ownership of the premises in question, and witness never knew or heard that their right to vote was ever disputed or questioned.

*Henry C. Van Wie,*a witness for the defendants,

testified that *Gerrit Van Wie*was in possession *forty years*since, and occupied the premises as a farm. The defendants’ counsel then *offered to prove*by the same witness *533that *Gferrit Van Wie*continued in possession of the premises until his death, and had always claimed to be the owner of the same, subject to a certain fixed annual rent; that the defendants came into the possession of the premises immediately after the death of their father, and that they have always claimed to be the owners, subject to said annual rent. The plaintiffs’ counsel objected to the evidence, unless it was intended to be proved on the part of the defendants that they or their father claimed to have or have had some paper title to the premises by lease or deed or other conveyance; or was offered to contradict the testimony of the plaintiffs’ agent. The counsel for the defendants repudiated the intention of contradicting the plaintiffs’ agent, and stated that they did not propose to offer direct proof that the defendants or their father had a deed, lease, or other conveyance of the premises, or any other proof of paper title than might be legally inferred from the facts offered to be proved ; but insisted that the proof offered was [ *534 ] competent evidence to the jury to find that the defendants’ *father had a paper title in fee of the premises in question subject to the payment of a perpetual annual rent. The judge rejected the testimony.

The defendants next offered to read in evidence a *mortgage in fee*of the premises in question executed by their father to *Philip Van Rensselaer,*bearing date 9th April, 1782, to secure the payment of *£64,15;*and that payments were made on the same in 1804 and 1805 to Abraham Van Vechten, Esq. the- attorney of the mortgagee, (and who it had been before proved had acted as the *counsel of Stephen Van Rensselaer,*in all matters relating to the manor of Rensselaer-wyck for a period of 33 or 34 years previous to the trial of this cause :) which evidence was objected to and rejected. The defendants also offered to prove that valuable improvements had been made by them from time to time on the premises in question, such as houses, barns, and fences; that within a very few years a very valuable, dock had been constructed by the defendants on the premises ; and that the premises were situate within about five miles of the residence of Stephen Van Rensselaer : all which evidence thus offered to be given was objected to by the plaintiffs’ counsel and rejected by the judge. .

The defendants also produced a transcript from the rent-rolls of *Stephen Van Rensselaer,*by which it appeared that *Gerrit Van Wie,*on the 1st January, 1789, was charged with 19 years rent of his farm, from 1st January, 1770, to that day at *£3*per year, and that in 1786, he was credited with 24 loads of stone, equal to 24 sheaves wheat.

The jury, under the charge of the judge, found a verdict for the plaintiffs. The defendants having excepted to the several decisions made against them, moved for a new trial.

*H. G. Wheaton & M. T. Reynolds,*for the defendants.

A possession of 25 years, under a claim of title, is a perfect bar to an entry by the true *534owner ; and can it be true that a similar possession under a claim to hold subject to the payment of an annual rent, shall not be equally effectual to bar the entry of the landlord except for the payment of rent ? Here the possession and claim of the ^defendants *continued**for [ *535 ] 68 years. Besides the length of possession, and the claims and acts of the defendants, had they been received in evidence, would ¡not only have warranted but required the jury to find a *lease,*although satisfied a lease had never been executed. 10 *Johns. R.*377. *Cowper,*217, 214, 102. 3 *T. R.*152. 4 *Johns. Ch. R.*1. 3 *Johns. Cas.*109.

*S. Stevens,*for the plaintiffs.

A possession for ever so long a time, stripped of the circumstance that it is accompanied with the claim of the *entire*title, will amount to an *adverse possession,*barring those who have the real and legitimate title. 9 *Johns. R. 180.*The doctrine of *adverse possession*has no application to this case ; it proceeds upon the ground of an *expulsion,*and how can there be an expulsion where the tenant holds in subordination to the title of the landlord. 1 *Johns. R.*156. 5 *Cowen,*74. 3 *Cruise, tit.*29, *ch.*1, § 3. If the defendants have any interest in the land, it is founded upon an *equitable estate*for the assertion of which they must apply to *equity ;*they have no defence at law. A lease could not be *presumed,*as the defendants repeatedly disclaimed having one, and only asserted that they were entitled to such a conveyance.

Cowen, J.

*By the Court,*The testimony of Mr. Pruyn, the plaintiffs’ witness, may have been^open to some observation as to the manner in which the defendants claimed to hold ; but putting it in the strongest terms for them, it will not amount to proof that they ever claimed a legal title. He says in one part of his evidence that they claimed to be owners ; but this could have been no more than equitable owners, for he was quite explicit that they admitted the want of an actual lease, and only insisted that they were entitled to one, which was to be in fee. After such a relation was established between them and the owner, any thing which was proved or offered to be proved on their part, could not be understood as an advance towards the presumption of an actual title, even admitting that their landlord had been apprised of their claims, and the permanent improvements „ which they made. No matter how long their *possession, or that [ *536 ] of their father, nor how valuable their improvements; these they might make as safely upon an equitable as upon a legal right to the fee. The testimony of Mr. Pruyn was in no way questioned, so far as veracity was concerned •; and the judge was, therefore, right, on that alone, in taking it that the legal relation of landlord and tenant had been established. The claim, at the utmost, was but an equitable right subject to a rent; and in an action of ejectment, can not be regarded as more than the claim of a tenancy from year to year. Yet it took away all inference from permanent improve-*536merits, and previous claims of title, acts of ownership, such as giving a mortgage, &c. no matter how long. The whole was irrelevant, and was, therefore, properly excluded.

But if this Avere not so, the defendants’ own evidence, given at the close of the case, estopped them. The plaintiff, Stephen Yan Rensselaer, had given them notice to quit, thus treating them as tenants from year to year : and to place the fact of that relation beyond all doubt^ they show that he had charged their ancestors for nineteen years rent, giving him a partial credit, they claiming under him. This alone would make them certainly nothing more than tenants from year to year, and even if Yan Rensselaer himself had admitted that they were entitled to a lease in perpetuity, it would not protect them at laiv-. Their remedy would be in equity’only. Admitting the judge to have been incorrect in his decisions on the shoAving of the plaintiffs, the defendants’ proof cured the error. In either view, the case was not open to the defence of adverse possession, and we think that in 'neither could the testimony offered have been made available to Avarrant the presumption of a legal title, for any greater term than from year to year.. That Avas gone, by the notice to quit.

The motion for a new trial must be denied.