#### *Simpson & Isaacs *vs.*Downing and others.

A *deed,*or some *writing*sufficient *inform*to carry tlie title to lands, where a title in fact exists, is an essential ingredient in a *constructive adverse possession*setup to bar a recovery in an action of ejectment. *J*

Privity of contract, blood or estate must exist between] the consecutive possessors of'land to establish a *continuity*of a *constructive adverseposscssionl.*A deed from one possessor to another, *void on its face,*will not preserve the continuity of ¡such possession.

A *constructive adverse possession,*though under color of *wrongful deed,*may exist by *mere claim*under certain limitations.

An exception to the charge of a judge, embracing several points of law, must, in general, specify the points in respect tp which error isjilleged.

This was an action of *ejectment,*tried at4fc?'d^ij5harie circuit, in October, 1838, before the Hon. John P. CüSBy^já(Í^fí|%Pj;he circuit judges.

*316The plaintiffs claimed to recover 74 acres of land, part of 308 acres in a tract called *Banyar’s*patent, granted in 1770, and deduced a regular title to the 3b8 acres, from the original patentees,'by sundry mesne conveyances, to themselves. The defendants, on their part, gave in evidence: 1. A *mortgage*from one *Jacob Horn*to *John Thurman,*bearing date 2d March, 1800, of a tract of land containing 205 acres, 3 roods and 16 perches, described as part of lot number seven, in a tract granted to *John Morin Scott and others ; 2.*A deed from *Horn*to *Nehemiah Finch,*dated 11th June, 1806, of the same premises; 3. Proof of the death of *Finch;*letters of administration upon his estate granted to *Philip Cornell,*on the 1st April, 1813, and a surrogate’s order made 10th June, 1816, authorizing the sale of the premises described in the deed from Horn to Finch, but requiring that one *Titus Reynolds*should unite in the» sale and conveyance of the premises ; 4. A deed under the surrogate’s order, from *Cornell,*the administrator, to John Collins, bearing date 18th March, 1819, duly executed by Collins ; *but Reynolds the person named by the surrogate, did not unite in its execution ;*5. A deed dated 24th August, 1819, from *Collins*to Elizabeth Gilchrist; 6. A deed from Bobert Gilchrist, the son and heir at law *of Elizabeth Gilchrist, to *Downing,*one of the de- [ *317 ] fendants in this cause, dated 15th January, 1823, and then a conveyance of a portion of the premises from Downing to the other defendants. The 74 acres claimed by the plaintiffs, are part of the *Banyar patent,*but are included in the boundaries of the premises conveyed by the deeds produced on the part of the defendants. Horn took possession of his farm in 1792; in 1800 he had it surveyed, taking in the 74 acres, and *claiming as his oivn*the whole 205 acres, as *part of lot number seven, of Scott’s patent.*Finch, after the conveyance to him, and probably within four years thereafter, cut timber upon the 74 acres, for the erection of a barn, .and he and those claiming under him, from time to time cut timber upon the 74 acres for fuel and fencing. In 1823 *Downing,*previous to his purchase, had a survey made of the 205 acres, including the 74 acres, which at that time was wood land, uncleared and unenclosed. No acts of ownership on the part of the plaintiffs as to the 74 acres were shewn, except that in 1801 the plaintiffs employed an agent to prevent *trespasses*on the 308 acres owned by them, including o’f course the 74 acres ; who in one or two instances called trespassers to account. A small part of the *undisputed*portion of the plaintiffs’ land was cleared and cultivated as early as 1800. The bill of exceptions, after setting forth the evidence, proceeded thus: *“*And the said judge so holding the said circuit court did then and there deliver his *opinion*to the jury, and *charge*them” that the plaintiffs had made out a good paper title to the premises in question ; that the defendants had failed to make out a good *paper title,*under which they had possessed the premises in question for 25 years, inasmuch as Reynolds, the person de*317signated by the surrogate, had not united with the administrator in the execution of the deed to Collins, and consequently that such deed did not convey any title. That to constitute an *adverse possession,*it was incumbent upon the defendants to show 25 yea~s possession : that the possession *prior*to 1819, the date of the deed to Collins, did not mate out the necessary time; and the possession *since*that period was unavailable; be- [ *318 ] cause the deed from the administrator *did not divest the *legal title*of the *heirs*of Finch, and consequently there was not a *continuance*of the adverse possession ; " and with that direction and under the said charge, left the cause with the jury,” as expressed in the bill of exceptions. The bill then proceeds : “ Whereupon the counsel for the defendants did then and there *except*to the aforesaid *opinion*and *charge*of the said judge, and insisted that the said deed of the said Cornell, administrator as aforesaid, although defective, was sufficient to constitute an adverse possession in the defendants; and'that from the testimony, the defendants were entitled to a verdict, for the reason aforesaid. Whereupon the said jury then and there, under the said charge of the circuit judge, gave their verdict for the said plaintiffs,” &c.

Cowen, J.

*By the Court,*Only two legal points were made by the judge in the charge: one that the plaintiffs had established a good paper title, the other that the defendants had failed to continue their line of deeds.' The bijU-excepts to the aforesaid *opinion*and *charge,*leaving it somewhat equivdbal *which opinion,*or whether *the whole charge.*But the bill immediately adding in connection with the exception, “ and insisted that the said deed of the said Cornell was sufficient,” &c., specifically indicates the ground of exception. It is saying, in other words, (though I admit somewhat inaptly,) that the counsel excepted because the deed was- sufficient to make out the privity. The great purpose in requiring the point and object of exception to be mentioned is, that notice may be given to the court and opposite party. In this case for instance, admitting the deed to be valid, it was not yet too late for the court to allow, in its discretion, evidence that the defendants had acknowledged the plaintiffs’ title, or any other fact overcoming the defence of adverse possession. They were, I think, in this respect put upon their guard by the iyords connected with, and explaining the extent of the exception. This view is not incompatible with the rule laid down in *Willard,*v. *Warren,*17 *Wendell,*258-9. Besides, the exception was not only to the aforesaid opinion” but also to the *charge.*It being plain that [ *319 ] *two points of law only were stated in the charge, it would not be a strained construction to say the exception to the charge reached both those points. The same thing was done in *Harlow*v. *Humiston,*6 *Cowen,*189. Of this there is certainly some doubt, where the charge is not so far, as inserted in the bill, exclusively confined to points of *319law ; and so the points of law are numerous. Indeed it may not he a safe rule to say that where there is more .than one, the exception need not distinguish which it is intended to reach. The substance of the exception should always be settled and clearly understood, and noted down at the trial. The matter to which it applies should also be well understood there. It is, therfore, the better way, if not, in general, essential, to mention the particular points in the charge.

There can be no doubt of the rule insisted on by the counsel for the plaintiffs, that could we suppose each of the parties to have, from the beginning, stood in such a relation to the premises as, without title, would constitute in them respectively a constructive adverse possession, the one who superadded the legal title should prevail. It would be like the case of an actual possession in both, claiming adversely. Other things being equal, the legal light turns’the scale. *Adams on Eject.*54, *ed. by Tillinghast, and note 3d there. See also Bryant*v. Allen, 2 *Hayw. Rep.*74. It is plain, however, that a constructive adverse possession, arising from circumstances, precisely coeval and concurrent, must bo a rare case. One, in general, closes the door against the other, at least by priority of time.

Accordingly such a community of possession as might neutralize the defendant’s claim, not being entirely clear in the principal case, the learned judge at the circuit put it on a defect in the deed under the surrogate’s order. The plaintiffs, therefore, cannot now say they are entitled ío récover,if that deed was valid for the purpose of keeping up the continuity of possession on which the defence rested. No doubt that, as the statute regulating probate conveyances stood when the deed was concocted and executed, it was ' void on its face. That was admitted at the circuit and not denied i at the bar. It is equally clear that where an adverse ^possession [ *320 ] ¡in several persons successively is necessary to complete the term ¡of limitation, they must shew an unbroken transmission of the possession from one to the other, during a sufficient number of years to satisfy the statute of limitations. In this case the limitation beginning to run before the revised statutes were passed, the time was twenty-five years. *McCormick v.*Barnum., 10 Wendell, 104

Had the claim here been of an actual adverse possession continued from Horn down to the defendants, perhaps there would have been less difficulty. Every thing then would be manual and tangible. *The pedis possessio*would be seen devolving from one to another ; and a vicious, even a void deed, in tervening, might not take from the effect. But this is by no means clear. The rule, as laid down in the books, is that there must be an adverse posses-4 sion by the defendant or by those under *whom he*holds, or both, for the term' of limitation. *Adams on Eject, ed. by Tillinghast,*47. Can one be said to h_o{J an adverse possession under another, in any case, without privity either of contract, blood or estate ? Be that matter as it may, however, it *320seems to me that many arguments combine to show that privity is necessary to the continuity of *constructive possession,*when we regard the notion of that kind of possession as it prevails under the law of this state. Of such a possession, I understand a *deed,*or some *instrument*sufficient in form for the purpose of carrying title, to constitute an essential ingredient. It is made up of an actual possession of part, claiming the whole under a deed which covers the whole. In such case and not short of that, is the grantee said to be in constructive possession of the part unoccupied. Finch began with such a possession by his deed from Horn in 1806. That possession continued in him to 1813 at farthest, when he died, and after an interval of five or six years, a conveyance is executed by Cornell, his administrator, to Collins, void on its face, for every purpose of passing any interest. Collins may then be taken as beginning a constructive adverse possession *de novo.*But this leaves the defence short of twenty-five years. It wants the connecting link between Finch and Collins, a possessory link, I admit, but that [ *321 ] appears to me to depend on a valid *deed, without which I do not see how another deed, one essential element, is to be transferred. Collins took no actual possession. There has *been*none in any of his successors. Either as an actual possessor or in some other way he must come into Finch’s shoes ; but all the interest of the latter was suffered to descend to his heirs. Suppose Finch had conveyed in his life time and Collins had come in under a deed from a total stranger, driving off and dispossessing Finch’s grantee ; Cornell was but a stranger, and Collins took adversely to Finch’s heirs. The line of continuation lay through them. Both Finch’s possession and that of his heirs was, I admit, a wrong. The statute of limitations, however, had begun to run. They had a right *to*say that this wrong should be continued and made available in their successors. But it was not such a wrong as would work a right in any hands without Finch’s deed, or his title under it. Every adverse possession is a wrong amounting to an inchoate right. In the latter sense, it is transferable by sale or gift ; but when *constructive,*there is no corporal seizin which can be transferred by livery. It is in the nature of an incorporeal right. True, there must be a corporal, not to say a contiguous possession of part; but that is amplified and spread over the actually vacant premises lying adjacent, by a deed in the tenant’s bureau. The right is thus extended in theory or contemplation of the law ; and when the essential elements no longer co-exist, the complex idea vanishes, or dwindles to the actual, corporal, territorial limit. The English law has never, I believe, admitted the refinement which creates a constructive possession by mere claim, though under color of a wrongful deed. It seems to prevail, however, under divers limitations in several different' states. At any rate, it has long been recognized as existing in this state ; *Jackson, ex dem. Putnam,*v. *Bowen,*1 *Caines,*358 ; *Jackson, ex dem. Bristol, v. Elston,*12 *Johns. R.*452, 454 ; though its practical application *321seems not to have been well understood till *Jackson, ex dem. Gilliland,,*v *Woodruff,*1 *Cowen,*276, *Jackson, ex dem. Ten Eyck,*v. *Richards,*6 *id.*617, 623, and *Jackson, ex dem. Hasbrouck,*v. *Vermilyea, id.*677. *Vid. also Jackson, ex dem. Gee,*v. *Oltz.*8 *Wend.*440, 1.

*The rule was found so well adapted to the exigencies of new [ *322 ] and unsettled parts of the state, that it ivas afterwards expressly adopted and its operation limited according to our adjudications, by the revised statutes, 2 *vol.*222, *2d ed.*Under either the common law or statute rule, the ideal possession cannot be extended by a written instrument, beyond the customary size of the lot or farm partly occupied. The size must accord with the usage of the adjoining country ; and section 9th declares that there must be a *continued occupation*for twenty years under *such claim ;*i. e. *under the written instrument,*&c., which works the extension. The abstraction once being formed must take a course in the regions of technical jurisprudence to be regulated by analogies, drawn from other branches of the law, mainly, I admit, from the doctrine of actual possession, to which it is regarded as an equivalent. Thus, co-existing or mixed with another like possession, it is, as we have seen, neutralized. But the prior abstraction fills the described territory, and prevents the interference of one subsequently arising in the hands of a third person, though an actual possession by the latter will overcome the abstraction. *Jackson, ex dem. Hasbrouck,*v. *Vermilyea,*before cited. What then is continuity of estate, as understood in analogous branches of the law ? How is the claim of the successor to be identified, in the language of the revised statutes, (for I take these to be but a repetition of the principle as it stood before,) with the prior wrongful adverse claim under the same instrument ? The answer seems obviously, by such conveyances from one to another as, supposing a good title to exist, would transfer that title. It is essential, to effect such a purpose, that the original deed at least, whatever title there was under it, should pass along the line by conveyance. Clearly such a probate deed as we have here would not work the effect. The death would leave the deed itself to descend, as a part of the inheritance. So in many cases the right to the deed passes from one to another in virtue of the grant of the whole estate holden under it. *Buckhurst’s case,*1 *Rep.*1. It is the same thing where we are inquiring for the continuance of a wrongful deed or title. As ^between [ *323 ] the parties who stand along the line of succession, the title is looked upon as rightful. The deed to be carried may contain a warranty, and thus be material to the grantee as an indemnity. The deed to Finch might thus have passed along the whole line from Horn to the defendants. Coming to Finch, however, his death and the void deed from his administrator to Collins, broke the concatenation. Beings void, it was as no deed, and we concur with the circuit judge that the defence,by adverse possession can date 'only from the administrator’s deed. The time being thus short of the li*323mitation, the verdict was therefore right; and a new trial should be denied.

By the Chief Justice.

This case might have been placed at the circuit on the ground that the plaintiffs had shewn a legal title in feo to the premises in question, and an actual possession of part claiming title to the whole, long before the commencement of the constructive adverse possession of the defendants now set up; and which possession and claim continued down to the commencement of the suit.

But I think it may also be maintained on the ground taken by Mr. Justice Cowen — Cornell, the administrator, not having been joined in the deed by the discreet freeholder, is to be regarded as a stranger to the premises; his deed therefore did not convey even a right to the possession of Finch the intestate — that went with the claim of title to his heirs. The continuity of Finch’s possession was thereby broken ; the defendants not connecting themselves with it.

Whatever therefore may have been the character of the adverse possession shewn by the defendants, it fell short of the requisite time to bar the plaintiffs.

New trial denied.