#### Jackson, *ex dem.*Preston and others, *against*Smith.

where the aefendant, having purchased a ¡ot of land, and re-yeíved a deed jforthewholelot, |rantor*cl>stated theShe¡r of *the*üe entered into ffettat“deedi wards'appeared wtaetoS lot only? as a *ienantin-common,*, ' „ - '. . . ,. - . . * this was held not to alter the character or the defendants possession, so as to prevent its- being adversebut that he-must be deemed-to.haveentered under his deed, as soie owner ia fee of the whole lot.

Possession of land by a purchaser under á deed for the entire lot, given without right, in the grantor, is adverse to the rightful owners, though tenants in. common w^tlitiie grantor; anda subsequent deed-executed-by them, during such adverse possession, is inoperative and void, and subsegueht released by them: to the grantor of the defendant, or the person under whom he derives title, enures to the benefit of the defendant.

A person in possession of land:chiming title,.may purchase in án outstanding title, to protect that possession»

THIS was an action of eiectment for lot No. 7. in -the town-_ , ****‘ ,. . . > ship of *Ovid,*and was tried *at the Seneca’circuit,*m *June,*1815, r" ’ *‘*before Mr. Justice *Van JVess.*' - * ' “

-» The lessor of the plaintiff gave in evidence the letters patent for lot No. 7. in *Ovid,*to *Jacob Van Gender,*'bearing date the 13th of *September,*1790, to which was attached a certificate fi’oru the secretary of state,, that the- patentee’s name entered in the ballot-book, and that he was described as a dead soldier, formerly belonging to .the Sth regiment, *(Godwin’s*■ *407company,) and that from the list Of dead soldiers, on file in the office, it appeared that the patentee died the 18th of *January,*1779.

The plaintiff proved that the patentee served ás .a soldier in the *New-York*line of the army, and died about 18 months before the end of the revolutionary war, and left nine children, to wit, *Jacob,*(the eldest,) ; *Reuben, William, Elijah, ■ Mary, Abigail, Elizabeth, Mercy, and Sally,*all of whom were born before their father enlisted as a soldier.

. The plaintiff, also, gave in evidence a deed from *Jacob, William,*and *Elijah,*three of the children of the patentee, to *William Preston,*for the lot in question, dated the 15th of *March,*1798, for the consideration of 1,000 dollars, and recorded the 14th of *May,*1798 ; also, a deed from *William Preston,*for the same lot, to *David Matthews,*dated the 4th of *October,*1798, for the consideration of 1,500 dollars, and recorded the 27th of *June,*1799; also, the last will of *David-Matthews,*dated the 29th of *August,*1810, by which he devised an undivided moiety of the lot to *John Matthews,*his only son, and the remaining moiety to his son *John,*and to *Robert Morris,*and *Garrit Wendell, in trust,*for certain purposes stated in the will; and, also, a deed from *Elijah Van Gelder, David Van Gelder,*and *Abigail*his wife, *Solomon Van Gelder,*and *Mercy*his wife, *Elizabeth Philo, Sally Van Gelder,*and *Joseph Van*Gelder, and *Mary*his wife, to *William Preston,*for the same lot, dated *February*the 13th, 1798, and recorded the 15th of *May,*1814.

The defendant gave in evidence, 1. A deed from *Reuben Van Gelder,*styling himself administrator and heir of *Jacob Van Gelder,*to *Stephen Thorne,*dated the 13th *of October, 1791,*for lot No. 7. in *Ovid,*for the consideration, of 40 dollars; the deed was recorded the 16th of- *September,*1813, and contained no mention of any order of the court of probate, or of a surrogate, to authorize the sale. 2. A deed, with warranty, from *Stephen Thorne*to *Peter Smith,*for the same lot, for the consideration, of 140 pounds, dated the 14th of *February,*1794, recorded the 17th of *December,*1795. The admission of this deed was objected to, because, in the certificate of acknowledgment endorsed, it was not stated that the judge before whom it was taken had personal knowledge of the grantor, or had received satisfactory proof of his identity ; .but the.; objection was *408overruled. 3. A quit-claim' deed 'from *. Jacob, William,%.vM Elijah Van Gelder,*to *Reuben-Van Gelder,*for the considera-tion of 16 pounds, dated the 7th of *January.,*.1792,, proved the fith *oí May,.*1791, by *Stephen Thorne;*a subscribing witness,- and recorded the 25th *oiJahuary,*180,2* ,4.: A quit-claim deed of the , saíne lot from *.Barah, Mercy, Mary,,*and *Abigail Vari. Odder,:*and *Elizabeth WicM.ll,*to *Reuben Van Gelder,*for the /CftMderatioñ of 5, dollars, dated the 22d of *'January,.*1812, 5. A deed from *Solomon Van Gelder, Elijah Van Gelder,.*and *Joseph Van Gelder to Reuben Varr Gelder,*of the same lot, for ,the consideration of *S*dollars, dated the *VdÚi.oíAugust,*1813 ; andjifi. Aideed *from.Peterr .Smith,-.*the-elder, to.the defendant, ¡dated the-8th *oi.Decembfir,*1807, for 214.and one fourth acres,, part of foe said lot.v • * / ,'

. The defendant proved that he and his father, had lived pti the lot 24 years; and foe witness stated that in *July*or *August, 179$, Stephen Thorne*came, to his House and said-he owned the lot, and the witness went with him to the lot, when *Thorne.*told the defendant and his father,- that he owned the lot, and’ the father of the defendant then purchased- foe' lot-of. *Thorne,*but foe witn.ess didnot k.nQW ívhefoer- a.deed was-given, dr how fo,e,business, was done.’ It 'was further' proved,: ‘on- foe part-of foe defendant, foat, when Preston: first' attempted' to purchase' foelot pfothe-heirs '.of foe, deceased-soldier, he was toíd.-.thát *Reuben*had-sold the lot to *Thorne.*The; witness' saw- *Thorne ’*pay money to *Reuben,*and afothe other heirs received a share ,o£ the money; but the witness did not -know .whether they wqre present at,foe sale to *Thome.'*. • - ■ ■ , . 4 Verdict W.as taken, by consent, for foe plaintiff,’ subject; to -foe opinion of the court on the above case.. ¡

*Wendéffl,*for the plaintiff,

contended, 1 * That the deed from *Reuben Van Gelder to Thorne; passed oMy the‘S%3.v&'piReúheri,*or *one ninth*part of the lot,' dr of- the' rights of 'his. ’father as- a-soldier; The first section of the aet*'.c;oircerning -themilitary lands, declares, that all, lands patented.-to officers,, and ¿soldiers, w-hofoave. died,previous to--foe 27%.of *Mardh,17$3;*to, have been, vested-in them, an the time- of their deaths' respectively; andithe. 7fo ¿sectfon-provides that foe act: -regulating *descents;*shall apply-to,-and govern all-casés: provided for in foe first section, except wjiere the lands.were on. the 5fo of *April,*1;893? *409held *by bona fide*purchasers or devisees under any person who would have been heir at law of the patentee, if that provision had not been made. The children of *Jacob Van Gelder,*the patentee, took as tenants in common, and the lot was not held by *Jacob,*as the eldest son and heir at la w of his father. Again; *Reuben*described himself as the administrator and heir of Jacob. As administrator he could have no right *to convey.*As heir of *Jacob,*(not being the eldest son) he could be entitled only to one ninth. The entry of *Thorne,*under the deed, was only as tenant in Common, claiming one ninth; so there could be no adverse possession.

2. The deed from Jacob, *William,*and *Elijah,*to *Reuben,*of the 7th of January, *1792,*was antedated and void. Nothing was seen or heard of this deed until nine years after its apparent date, when it was proved by *Stephen Thorne;*but that deed could enure to the use of the grantee only.

3. The prior registry of the deed to *William Preston,*would destroy the operation of that deed; for there is no evidence of a notice to *Preston*of its execution. Such, notice must be direct and positive.* *

Again; an adverse possession makes' a conveyance by the person out of possesion void as against third persons; and though such adverse possession may prevent the operation of the deed so as to enable a person to recover in the name of the grantee, yet, the title remains good in the grantor.† Outstanding titles may be purchased in, to support a title.‡

*E. Williams,*contra.

The defendant and his father have enjoyed the premises, under a claim of title, for twenty years before bringing the action. /

*Wendell.*

The fact is, as will appear from the pleadings, though not stated in the case, that the suit was commenced six months before the statute could attach.

*Williams.*

If the possession was adverse in 1798, at the time the deeds were given, under which the defendant claims* those deeds are void. Now, the fact is, that the defendant and his father were in possession in 1794, under the deed of *Thorne,*to whom *Reuben Van Gelder*had conveyed. ■ There was, there* *410fore, a legal incapacity in any'person out .of. possession to convey the lot.. No matter what was the character, -or extent of the aconveyanoe from *Reuben Van Gelder*to Thorne, if the defendant-purchased the fee of the whole lot, and held it as *tenant in*fee of the whole. He has continued in possession; the heirs..of *Jacob*were not: in a situation to make a legal conveyance *Reuben,*the grantor, claimed to be heir to his father, who died in 1779, when, by, the law of the state, as. it then existed, the oldest son took the whole estate as heir at law, The possessron taken under this deed was a possession of the whole. The. antedating of the deed of the 7th of *January,*-1792, if it V'ere proved, would' not be material here; but there, was no proof of' the fact. -

The prior registry of the plaintiff’s deed can have no effect.; if it was void in its creation,, it can gain no preference by. a registry. Then .the defendant shows that he has the title •of the heir at láw of the patentee,, and continued possession under it.

, -Againthe 7;th section of the stathte velative to military lands, as-,to the application of the statute Of descents, eXcepts the case of *bona fide*purchaser holding -on the 5th of *April?*1808., Now, at that time, tfje father of the. defendant was a *bona fide*.purqhaser in possession.

In *Jackson*v. *Demont,,*it was held, that a release from the lessor, after issue joined, in an action' of ejectment,- will protect the defendant against the lessor; and in *Jackson, ex deni. Bon* nel 8?*Goodyear, v. *Foster,******it was held that the plaintiff could *\ ,*. • *r*, , . i Í , , • ■ not recover on the demise of a lessor, who had released his in- ' .... 1 tere.st to' the defendant.,

*Van Vechten,*in reply,

contended, that the character of the possession of the defendant and his father, since 1794, must be in conformity *to*the title they then acquired; apd whatever may be the form of the deed from Thorne, if he could convey only an undivided ninth part,-the conveyance must be construed, and take effect, according to the rights of the grantor. The grantor did not describe himself as heir at law, but only as administrator and heir. When a person having right enters into possession-of land,, the law intends that he entered according to .his right* Then, he insisted, the. character of the.possession of the defendant was that of a tenant in common of one ninth part; and so *411could not be adverse to the other heirs, or the tenants in common of the remaining eight parts. It appears from the *Nisi P.rius*record, that the process-was returnable in *January,*1812, so that the statute of limitations could not prevail. The court will go far to protect the rights of tenants in common from am *ouster*by an adverse possession under a co-tenant.*

Again, *in Jackson, ex dem. Potter,*v. *Hubbard,**†**'*this court held, that under the act of the 8th of *January,*1794, for the registry deeds in the military tract, a prior deed not deposited in the clerk’s office was void against á subsequent *bona fide*purchaser, whose deed had. been deposited. The defendant was bound to take notice of the deed tó Preston; whatever is sufficient to put a party on inquiry is good notice. Where a purchaser cannot make out a title but by a deed which leads him to another fact, he shall be presumed to know that fact.‡' ”

Again; a sound construction of the act of 1803 decides the character of the possession. It provides for a compensation for improvements made by settlers *under colour of title.*The possession is to be transferred to the true owner, on making payment for the improvements. This shows that the legislature intended to protect the titles to lands under deceased soldiers, and, at the same time, to protect those who entered under colour of title; thus doing justice to all parties, and giving fhe land to -its true owner. ' '

*

Jackson *v.*Given, 8 Johnson Rep. 137.

†

*Jackson*v. Brinkerhoff 3 Johns Case 101. *Willaims. Jackson,*5 *Johns. Rep 489.*

‡

*Jackson v. Demont, 9JjhTM-*» i. *muur.*10 *Johns. Reg?,*164.

*

**12 *Johns. Rep.*488. *Jackson, ex dem. Bonnel,*v. Sharp, 9 Johns. *Rep. 163*.

*

**Van Dyck v. Van Beuren & Vosburgh, 1 Caines' Rep. 83.

†

*Caines' Rep. 83.*

‡

*2 Fonbl. Equ.*155, 2 *Ch. Cas. 246.*

Yates, J.,

delivered the opinion of "the court. The important inquiry in this cause is, as to the character, duration, and effect of the defendant’s possession ; and it involves the following questions : 1st. Whether the premises have been held adversely for 20 years before suit brought ? and, 2d. If adverse, (although not for that period,) what the legal operation of such possession is, with regard to the conveyances introduced by both parties, as evidence of title ?

The deed of *September,*1791, from *Reuben Van Gelder*to *Stephen Thorne,*for the whole lot, cannot control the possession of the defendant, and of his father, so as to make it the entry and possession of a tenant in common, merely because it gave title to no more than one ninth part of the lot.

The grantor in this deed states himself to be the heir of the patentee, and the conveyance is for the whole lot; and it may well be inferred, that *Thorne,*at the time, supposed that it gave *412him title to that-extent, and, that he •purchased accordingly* It afterwards appearing that Newieji was a younger son could not alter the naturé of the defendant’s possession,' If *Reuben*had: been the heir at law of *Jacob Van Odder,*the soldier, *Thorne,*would have held the whole lot- under the statute of the 5th of *April,*1803, as -a. *bona fide*purchaser*

The conduct of *Reuben,*subsequently to the conveyance made by him, confirms, in a great degree,- what has been stated to have' been the intention of all the -parties when it was executed.The consideration, received was .divided, between all the children. They, therefore,., supposed the sale made by *Reuben*sufficient to pass the entire lot,. or’ they never would have accepted of their proportion of the consideration received for it,; and *Thorne,*supposing himself to have obtained a good title, did not, hesitate to dispose of it to a person who entered as owner of the whole lot.

. If, therefore, it is conceded,'.that deed .conveyed, ones ninth part only to *Thorne,*and that if he had entered under it, suc-h. entry would have been according to his right ms tenant in-common, and that his co-tenants couldnot have been disseised,, because the possession would not have been adverse to their rights; still, this, cannot change the character of the defendant’s possession, nor the previous possession of his -father*Neither of them had any, knowledge of this deed* The father-purchased, by warranty deed, from *Thorne,*who represented himself to be the sole proprietor of the lot^ As early as *July or August,*1792; while the defendant’s father was on the lot,' *Thorne*went to view it, and avowed himself to be the owner, and sold it for 140b • From that period,'in strictness, the adverse possession.commenced, At all events, it commenced from, the date of *Thorne's,*deedto the elder *Smith,*Which Was in- *February^'*1794. it is evident, therefore, that the doctrine, in relation to the possession of tenants in common, does not -apply to this case.- It might as:weil be urged as applicable, to a conveyance made by a stranger, of any lands held in common. And it will not be questioned, that the possession of a purchaser under such a deed. given without right on the part of the grantor, would, notwithanding, be adverse to the rightful owners, although held by them in common. But, in the present-case,, ijo such tenancy did, in fact, exist. The patent had issued to a deceased soldier; and it .may well.be questioned, whether an equitable ,title, even> *413could pass to his children. The statute to regulate descents as to property, in that situation, was not passed until nine years subsequent to the sale made by *Thorne*to the father of the defendant; so that the possession taken by him must.be deemed adverse to all the world. *(Jackson v.*Wheeler, 10 *Johns. Rep.*166. *Jackson*v. *Foster,*1.2 *Johns. Rep.*490.)

It is not stated in the case at what time this suit was commenced, but the plaintiff’s counsel, in the course of the-argument, mentioned, that it appeared from the files in the clerk’s office, that the. declaration was, returnable in *January term',*1812. If that is so, the possession has not been adverse for a period sufficient to bar, the plaintiff’s right to recover on that ground; for, before *Thorne*went to view the lot, it is not pretended that *Smith*claimed it, or that he held it in the right of any one.. He, doubtless, during that period, possessed it as a mere intruder; but the adverse possession, subsequent to *February,*1794, when he had purchased it from *Thorne,*who then assumed to claim the whole lot, and having taken his warranty deed, was sufficient to defeat the conveyances obtained by *William Preston*in 179,8. The conduct of *Thorne,*afterwards, could not alter the operation of this possession. There is no evidence that. *Smith-*had any knowledge of it; .and such conduct may well be attributed to the interference of *Preston*with the title, ■ because the lot had been conveyed by a warranty deed to the elder *Smith,'*so that *Thorne*was interested in securing *Smith's*possession. The deeds, then, from *William Van Gelder, Jacob Van Gelder,*and ■ *Elijah Van*Gelder, to *William Preston,*of the 15-th -of *March,*1798, and of the other children to. him, dated the preceding *February,*being rendered inoperative, the plaintiff, of course, cannot be benefited by the demises of *William*Preston, *John Matthews, Robert Morris,*and *Garrit Wendell,*and the-Conveyances, subsequently executed by all the-children to *Reuben,*must enure to the benefit of the defendant, who held under *Reuben,*through *Thorne ;*because the facts in the case sufficient-: ly show, that those conveyances were obtained.for the purpose-of granting or securing *Thorne's*tide under *Reuben ; .and. Smith'*being *Thorne's*grantee, he and those claiming, under him, .had a right to protect themselves, under a title thus obtained, in-the-same manner, as though he had purchased from’ the children-himself. It is an established rule of, law that a party in possess Sion claiming title, may purchase in an outstanding -title. *(Jack- >**414*son, ex dem. Humphrey,*v. *Givan, 8 Johns. Rep.*139. 1 *Johns. Cases, 81.*5 *Johns. Rep.*489, 8 Johns. Rep. 479. *12 Johns. Rep.*207.) There, therefore, can be no recovery on the; dé* mise of the other children of the patentee, as, they have parted with their right in the premises-to *Reuben,*which, as before stated, enures to, the benefit of his grantee and those claiming under him. The defendant is entitled-to judgment.

Van Mess, J., dissented.

Judgment for the defendant.