McGregor and others vs. Comstock, 16 Barb. 427

Edwards, J. The case shows that the original source of the title set up by the plaintiffs, was a deed of conveyance executed by the commissioners of forfeiture for the southern district of New-York on the 31st of May, 1785. It appears by the description contained in the deed, and it is admitted by the defendant, that the property in question had belonged to James Delaney, and that it was forfeited to the state by

an act of attainder, passed on the 22d of October, 1776. (1 Greenleaf’s Laws, 26.) The conveyance was made in pursuance of the powers which had been conferred upon the commissioners by

an act of the legislature, passed on the 19th of May, 1784. (Greenl. Laws, 127.) The defendant contends that by the treaty of peace, of September 3d, 1783, the forfeited estate was divested from the state of New-York, and was revested in James Delaney. This is clearly a misapplication of the effect of the treaty; for the

article which is relied upon refers merely to future confiscations, and has no reference to attainders and forfeitures which had already .become complete and absolute. In the cases cited upon the argument, the proceedings of forfeiture were in progress, and undetermined at the time when the treaty was concluded. The next objection which was made to the plaintiff’s title is, that the second John McGregor, or John McGregor the younger, as he is called in the case, was never seised of the premises in question; and the defendant moved for a nonsuit on that ground.

This objection must, of course, refer to the alleged want of an actual s'eisin; for that he had a seisin in deed cannot admit of a doubt. But, conceding that there never was any seisin in law in John, the younger, I do not perceive how this should entitle the defendant to a nonsuit. He does not found his objection upon a descent cast; and it is only in that point of view that an objection to the plaintiff’s right of recovery could be taken advantage of by way of nonsuit.

It may become important, however, in reference to the principal question which is raised in the case, as to the validity of the fine which was levied by Winthrop, to ascertain what was the extent of the seisin of the premises by John the younger, anterior to the time of the levy. The case shows that John, the elder, died in the year 1802, and that his son John was at that time about two years old.

It also appears that John, the younger, was sent to England by his uncle at the age of six years, and that he remained there till the year 1817 or 1818, when he was sent to the East Indies; and that he has not been heard of since, and is supposed to be dead. There is no pretense that he ever took actual possession of the premises, either in person or by his agent. One of his guardians states that he received the rents of, and paid the taxes upon, two lots in Essex-street. But ii does not appear that any one acting on John’s behalf, ever in any way interfered with or asserted any title to the lot in question.

It would seem, then, that he, during his lifetime, and his heirs at law since his death, if he died as is supposed, had a seisin in deed of the premises; and, if there was no disseisin or adverse possession, had a seisin in law either actual or constructive. On the part of the defendant, it appears that on the 20th August, 1817, a partition was made of what was called the Stuyvesant estate; and the partition deed, amongst other things, conveyed the premises in question to Margaret Stuyvesant in fee simple. This is the first evidence furnished to us of any claim to the property set up by the Stuyvesant family.

On the fifth day of January, 1824, Margaret Stuyvesant made her will; by which she devised the premises to Egerton Leigh Winthrop, in fee simple, and shortly afterwards she died. It also appears that during the years 1818 and 1819, the premises were taxed to unknown owners; that the taxes were in fact paid by Mrs. •Stuyvesant, and that from the latter period down to the year 1826, she or Winthrop were taxed and assessed as owners "of the property; and that the taxes and assessments were paid by them.

In the year 1827, a fine was levied by Winthrop, and he and his representatives have since been in the sole and exclusive possession of the premises. It is upon the title thus acquired that the defendant relies. The plaintiffs do not deny the regularity of the proceedings on the part of Winthrop, in levying the fine; but they contend that he had not such an estate in the premises as authorized him to make the levy. It is an elementary principle that in order to make a fine of any avail at all, the parties must have some interest or estate in the lands to be affected by it. (2 Bl.

Com. 337.) Or, as it is more definitely expressed, a person to levy a fine, must have a freehold either by right or by wrong. (Doe v. Davis, 1 Carr. & Payne, 130.) And in order to create a freehold by wrong, there must be a disseisin, [Ib. Doe v. Gregory, 2 Ad. & Ellis, 14. 5 Bing. N. C. 161.) The question then arises, whether Winthrop had such a freehold as the law requires. The case shows that at the time when the fine was levied, the premises were in the outskirts of the city, where lots were but little used, either for building or agricultural purposes, arid where it was difficult to keep them fenced.

The jury have found that the lot in question was fully enclosed at the time of the levy; and the reasonable inference is, that it was so enclosed by Winthrop; and there is a distinct admission in the case that he had “ actual and exclusive possession of the premises” at that time. The counsel for the plaintiffs contended upon the argument, that to constitute a disseisin, there must be an expulsion of the rightful owner by violence; and that there could not be a disseisin in the case of vacant lands.

If such were the rule of law, I should say at once that the title which is set up by the defendant has wholly failed. But no such rule is laid down either in the authorities of England or of this state; and it seems to me that it cannot be sustained upon principle. The rule laid down by Oh. J. .Kent, in the case of Smith v. Burtis, (6 John. 197,216,) is, that “the rightful owner must be expelled by violence, or by some act which the law regards as equivalent in its effects.” He further says, that “ a peaceable entry upon land apparently vacant, furnishes per se no presumption of wrong.

The benign and legal intendment is otherwise.” This , is, undoubtedly, a correct statement of the rule as deducible from the English authorities. . And in the case of Doe v. Thompson, (5 Cowen, 371,) the same rule is laid down. In these cases the question was as to what would constitute a disseisin upon which a descent might be cast, and not as to what would be a sufficient disseisin to authorize the levy of a fine.

The mere entry on land is clearly not sufficient to constitute an ouster of the true owner; for the presumption of law is that such entry is under the title of the true owner, and not in hostility to it; or, as it is expressed in the books, such an entry is supposed to be congeable, and the burthen of proving the contrary lies upon the person who sets up a disseisin. There certainly cannot be a seisin in the true owner, and the disseisor at the same time; and it is undoubtedly true, as was said by Ch. J.

Parsons, (ubi infra,) that where a man is once seised of land, his seisin is presumed to continue till a disseisin is proved. But can it be said that a seisin in law, either actual or constructive, continues in favor of the true owner, when another person holds exclusive pqssession of the property, and claims -it as his own 1 All that the law requires, to constitute a disseisin is, that there shall be a new seisin in hostility to the true owner. In a case where the owner is in the actual perception of the profits, or has possessio pedis, there could hardly be a dispossession without violence.

On the other hand, in the case of vacant lands, violence is impossible. But does it follow from this that there cannot be a disseisin without violence ? It seems to me, that it follows, rather, that where there is no violence, and where, from the circumstances of the case there can be none, the law will infer a disseisin from such other acts as show that the possession is adverse and hostile to that of the true owner. In the case of Proctor v. Small, (15 Mass.

Rep. 498,) the court, ■ in speaking of this subject, say that “ this being a negative proposition, it cannot commonly be proved by positive testimony; it may, therefore, he inferred from circumstances.” They also say that “ disseisin does not necessarily imply a forcible entry, or an actual ouster by violence or fraud; for in case of vacant lands, a simple tortious entry, and open exclusive possession under a claim of adverse title, are equivalent to such entry and ouster.” The principles here laid down do not seem to me to be at all inconsistent with the decisions which have been made in England and in this state.

On the contrary, they are the established principles of the common law applied to a state of things which seldom exists in the parent country, but which is of common occurrence here. [New-York General Term, October 3, 1853.

Edmonds, Edwards, Mitchell, Roosevelt and Morris, Justices.] In the case before us it appears that Winthrop had claimed title to the premises adverse to that of the true owner for some years, and had supposed that he had a good title; that he had been regarded by others as the owner, and had been taxed and assessed as such, and had paid the faxes and assessments ; that the lot had been enclosed by a fence, which every reasonable presumption would lead us to believe wras placed there by him, and it is admitted that he had the actual and exclusive possession at the time that the fine was levied'.

It seems to me that these are acts which the law will regard as equivalent in their effects to an actual expulsion by violence; and that they establish such a freehold, by disseisin, in Winthrop, as will sustain the fine levied by him. There should be judgment for the defendant. Mitchell, Roosevelt and Morris, Js. concurred. Edmonds, P. J. dissented. Judgment for the defendant.