#### Jackson, *ex dem.*Livingston and others, *against*Hallenbeck.

ow^'erb®f“|,4b® log devised the same to his wife during her w¡ddeno iL and his thers-. a dispute having arisen ’j;u‘ “í|btheUSothaí ^ toSthlPortta shíwasratíuíd, bsCre?“^°S "“5 i??2,toaWstaind; “¿S STthedeeTia dues torrera? any ?r *tiw*jJnd» tent in the pp? g^iepa£[ ““prenK1® be&rlthw title under the husband oí *C.;*and in an action of ejectment by persons claiming*, under A., it was held, that there-was such an adverse possession-in the defendant as barred the action, which could not be repelled by showing that he had obtained his possession from the tenants of the-lessors of the plaintiff, ortheir ancestors,, as it was to be presumed, after such a lapse of time, that the persons appointed to locate the. share of *C.*had located it upon lands in the possession of tenants, as they ■were authorized to do.

THIS was an action of ejectment, brought to recover thirty-four acres of land, in lot No. 124., in the *Lunmburgh*patent. The cause was tried before Mr. Justice *Platt,*at the *Greene*. *„*. „ „ „ circuit, in *September,*1815.

The plaintiff produced in evidence the *Lunenburgh*patent, dated the 25th of *May,*1667, which, by deed dated the 30th of _ . *T July,*1750, was divided between the proprietors, of whom *J ohannes Provoost*and *Abraham Staats*had purchased one third ; and in the partition 43 lots had fallen to the share of *Abraham Provoost, Sybrant Van. Schadk,*and *Jacob Roseboom,*who were the representatives of *Johannes Provoost*and *Abraham Staats.*The representatives of *Provoost*and *Staats,*by deed of partiton, dated the 7th of *August,*in the 24 *Geo.*II. divided their third of the patent, excepting thirteen lots, of which-Iot No. 124. is one, which it was declared should remain undivided, one half thereof belonging to *Provoost,*and the other half to *Roseboom*and *Van .Schaak. Abraham Provoost,*by deed, dated the 10th of *August,*1750, conveyed his lands, in the *Lunenburgh patent,*to “ls eldest son and heir at law, *Johannes,*who died, leaving four brothers; *Samuel,*the eldest, and heir at law, *Hendrick, Jacob,*and *Isaac*and *Samuel*had issue, *Hendrick*and *Catharine,*of whom there are no descendants living. *Abraham Provoost,*one of the lessors of the plaintiff is the son of *Jacob Provoost,*and is the only one of the family now surviving.. The title of the other lessors of the plaintiff, as far as can be collected from the case, it is unnecessary to- state.

The defendant gave in evidence the will of *Johannes Provoost,*dated *November*5th, *1751,*who devised all his estate to *Catharine,*his wife, during her widowhood, remainder to his four brothers, *Hendrick, Samuel, Jacob,*and *Isaac,*in fee. *Sarah,*who married *John Low,*was the daughter and heir at law of *Jacob Provoost.*The defendant also gave in evidence a deed, dated *June*25th, 1772, from *Catharine Provoost,*widow of *Johannes Provoost, Samuel Provoost,*and *Isaac Provoost, to John Low,*and *Killian Van Rensselaer,*which recited that disputes had arisen between the devisees of *Johannes Provoost,*and *John Low,*and *Sarah,*his wife, as to her proportion in the *500*Lunenburgh*patent, 'and that, for the purpose of settling these disputes, *¿Low-*and his wife had, by deeds of lease and release,. Bearing, date the 3d and 4th *of February,*1772, granted *to Kill¡an Van Rensselaer*all their interest in the patent, in trust, and -to the uses in the said deedofréléásé mentioned;-,the.parties then covéhanted, that the parties of the second part were eutitled, under *Johannes*Provoost, and otherwise,: to one equal •undivided fourth part of one equal undivided sixth: part, and also to one equal sixth undivided part of one other equal-undivided sixth- part of the lands granted, by the. said letters patent j and that *Robert*Yates, *Nanning Vischcr,*and *GijsbcrtMavsdlis,*jun,, find any two of them, were authorized, with all convenient speed, to locate and reduce to severalty, the several undivided tracts above granted, in, from,, and out of, the lands now in the .tenure and occupation of the parties of the, first part, their tenants or assigns, and out of the lands parcel of the said tract,' •which,' by any former division,, had beén’ allotted to the parties' of the first part, or to any person under whom they claim or derive title to the said tract, and out of such- parts of the said tract, -which had, bn such division,: been allotted to the rights .of *Johannes*Provoost, the grandfather of his son, *Abraham Pro»**Boost,-or any persons claiming under them; and in case of de~ ficiency, then such deficiency to be taken out of such lands as remain in common and undivided in the said patent. The defendánt then gave in evidence a deed from *Killian Van Rmssé< iaer*to *Casper I. Hallenbcck,*-for lot No. 81., in the. .patent of *Lunenburgh, dated September*2.1st, 1774, and the will of *Cas» per I. Ilallenbeck,*dated *September*4th, 1795, by which he devised to the defendant, his Son.

It was proved by *John*C, Hallenbtck, that the defendant’s father was in possession of the land which he occupied, in lot No.' 124., 23 yéars before the trial, and claimed under a purchase' from *Loto.*It also appeared that *Peter Bastían,*a negro, and one' *Egbert sm,*were in possession each of a few - acres of the premises, when the defendant’s father entered. They held un»der *Johannes Provoost,*arid paid their rent in mowing and work, arid the defendant’s- father obtained the possession from them. At the time the defendant’s father took possession of the premi-mises, *Isaac Prmóost*lived within a mile and a'quarter of jot Nó.:, 124,., and *Abraham Provoost*lived within two: miles, and afterwards, within a quarter of a miler\ -.■■•'

*501The plaintiff, on the trial* abandoned his claim to that part of the premises which was originally possessed by the defendant’s father, in lot No. 81., and a verdict was taken for the r.esidue* subject to the opinion of the court.

*E. Williams*and *Fraser, for*the plaintiffs.

They cited 1 *Johns. Rep.*156. 3 *Johns. Rep.*499. 6 *Johns, Rep.*34. 9 *Johns. Rep. 174. 10 Johns. Rep. 475.*

*VanBeuren*(Attorney-General) and *Van Vechten,*contra,

Thompson, Ch. J.,

delivered the opinion of the court. The premises in question are about 34 acres of land, in lot No. 124..,. in *the Lunenburgh*patent. The case does- not disclose who' are the lessors of the plaintiff, and we cannot, therefore, say whether they have made out a title in themselves. If, however, the decision of the case turned upon the question of title, it might be proper to call upon the parties for this information. But, for the present, we assume, that such title is made out in some of the lessors, so as to entitle the plaintiff to recover, were it not for the adverse possession shown on the part of the defendant. From this testimony, it appears that the first occupants of the premises were *Peter Bastían*and *Jacob*Egbertson, and* upon the nature of this possession, and the manner in which it was afterwards acquired by the defendant’s ancestor will, in a great measure, depend the result of this suit. From the testimony of *John C, Hollenbeck,*it appears that *Casper I, Hollenbeck,*the father of the defendant, obtained possession in part from *Bastían,*and in part from *Egbertson,*claiming the land, however, under a purchase, from *John Low.*On the part of the plaintiff* it is contended, that *Bastían*and, *Egbertson*were the tenants of *Johannes*Provoost,.under whom the lessors of the plaintiff claim, and* therefore, the attornment to *Hollenbeck*was void.

To a right understanding of the nature of the possession, -it will be proper to notice the relation in which *Low,*under whom the defendant claims, stood to the *Provoosts,*and how his right originated. He, it appears, married *Sarah Provoost,*the daughter and heir at law of *Jacob Provoost,*who, together with *Samuel*and *Isaac Provoost,*were the devisees in the will of *Johannes Provoostj*dated in the year 1751. There *502being á dispute as to what right *Sarah*had in the land of her grandfather, *Johannes,*the other devisees, *Isaac*and *Samuel,*together .'with the widow of *Johannes,*in the year 1772, coiiveyed to *John Low*and *Killian Van*Rensselaer,, one fourth of a sixth, and one sixth of a sixth of the lands granted in the patent, to bé located by *Robert Yates, Manning Vischer,*and *Gysberl Marsellis,*on any lands they should thing proper, either in the possession of the parties of the first part, or their tenants, and either oil any lands that had been allotted to *Johannes,*their grandfather, or to his son *Abraham,*and in case of - any deficiency,, then to be taken out of any lands which lay in common ánd. undivided. It appears, that the possession taken by *Casper I. Hallenbeck,*claiming under a purchase from *Low,*was more than 20 years before this suit was brought.- Under this state of facts, no great weight is to be attached to the alleged tenancy' of *Bastían*and *Egbertson.*The extent of their improvements was very inconsiderable. *Bastían*was a negro man, formerly owned by *Johannes Provoost,*and, as the Case states, paid his rent fin mowing. *Egbertson,*also, paid sopie trifling rent in work. He has, ■ however, been dead nearly ; 30 years, and *Samuel Provoost,*(to whom the rent is said to have been paid,) nearly 40 years, which makes it, at all events, a very stale tenancy. But admitting they might be considered tenants of Provoost, it would not necessarily follow that the possession taken from them by Hallenbeck was fraudulent and void. Bos», also, claimed to derive his title from, *Johannes Provoost,*in right of his wife *Sarah,*under the deed of 1772. And, under this deed, the persons appointed to locate *Sarah?s*right, had authority to make such location upon any part Of the land, whether in the occupation of a,tenant or not,'and'after such a lapse of time, and such a length of possession, it is no more than reasonable to presume such location to have been made upon the premises, and possession taken under such right. This presumption is very much strengthened by the circumstance, that when *Casper I. Hallenbeck*took the possession, *Isaac*and *Abraham Provoost*lived near the premises, and no objection appears to have been made. Under these circumstances, the tenancy set up in *Bastían*and *Egbertson',*is too vague and equivocal to work any prejudice to' the defendant’s possession; and this possession haying been taken, under claim of title from *Low,*and held for *503more than 20 years, the defendant ought not now to be disturbed, and is, accordingly,, entitled to judgment.

Judgment for the defendant.