#### Jackson, ex *dem.*Smith, *against*Vrooman.

Where- . land was conveyed, and the grantee entered .into possession,' and afterwards, proceedings were had in partition, in' relation, tó the same premises; to which the.grantee was not a party* and the premises were sold by. commissioners appointed., by the; court*, :and .conveyed by them to the purchaser ; it was' held that the first grantee was not precluded, by the'proceediogs in partition, from 'conttroverting the right of the’subsequent purchasei\,and that his possession 'being, adverse, the deed from the commissioners' was void.

THIS was an action of ejectment,- brought -to recover part e£ Lot No. 196., in *Klock and Nellis’s -*patent, situate in the town of *Palatine,*An the' county *of'Montgomery.*The cause was tried'before Mr. Justice *Yates,*at *the -Montgomery*circuit, in *August,*1815.. ■ ' •

The plaintiff claimed-under proceedings and judgment'm partition, in the court of common pleas; oLthe county of *MbntJ*gomery, under which the premises in question were sold by commissioners appointed by the order of the court, .who conveyed the same to the lessor of the plaintiff, by deed,-dated the 19th. *January,*1814. . The defendant claimed under a conveys anee of lot Nq. 107., from *George' Tew Eyck*tohimself; dated the 7th *Aprit,*1810, and proved- that the premises in quéstiqa were-comprehended within the boundaries of that deed,.; that he took possession under that deed, in about a month after its , execution, and: had sihee continued in possession. The judge decided,'that the possession of the defendant being adverse, the .deed to the,lessor of the plaintiff was void, and the! jury accordingly found a verdict for the defendant. ..

The plaintiff now moved for a new trial, and-the cause was submitted to the court'without argument. ’ ,

*Per Curiam.*

The premises in question are claimed as being a part'of lot No. ,106», ia *Klock 4r Nellis’s*patent, and the lessor of the plaintiff makes title, to'the same; under proceedings in partition,:by which it appears, that lot No. 107.'was ordered to'be sold, and a deed was given for it.by the commissioners, ‘bearing date 'the 1-9th- of *January,*1814.' No part- of the proceedings are particularly! set out. But it is not pretended that the defendant was a party to those proceedings ; and he' claims title to -the same premises; tinder a deed from *George Ten .Eyck,*bearing date, the 17th -of *April,.*1810, by which the. premises In question are described as lot Np. 107», in the subdivision of the patent; and áre further described by metes'and bounds, so as tó include the premises iff question ; it also appears, that soon after the 'deed was given, the dm *489fendant entered into possession of the premises, and has continued in possession ever since. The deed given by the commissioners is conclusive only upon all the owners named in the proceedings, or who have received the notice required by the act, (1 N. *R. L.*510. s. 5.,) and those claiming under such persons. But, from any thing that appears, the defendant is a total stranger to such proceedings, and is protected under the proviso to the third section of the act, which declares, that such partition shall not preclude any person not named therein, and who shall claim any right or title to the premises in question, from controverting the title or interest of the parties between whom such partition has been made.. The testimony shows, very clearly, that the premises were held adversely by the defendant at the time of the sale by the commissioners, and their deed, of course, could not pass any title. The verdict found by the jury for the defendant was correct, and the motion for a new trial must be denied.

Motion denied.