Thorp v. Raymond

THIS case was brought up by writ of error, from the Circuit Court of the United States for the Southern District of New York.

The circumstances of the case are fully stated in the opinion of the court.

It was argued by Mr. Lawrence, for the plaintiff in error, and by Mr. Shell, for the defendant.

The points made for the plaintiff in error were the following:

First. The plaintiff having shown a valid legal title in his ancestor, Nicholas Brouwer, and having proved that the said Nicholas Brouwer died seized and possessed of the premises in question, the inheritance therein passed, on his death, to his granddaughter and sole heir at law, Hannah Brouwer, the plaintiff's grandmother.

Second. There is no evidence that Pine held adversely to the heir at law of Nicholas Brouwer, and therefore it must be presumed that he held in subordination to the Brouwer title. 2 R. S. 392, § 8.

Third. The adverse possession commenced with Oliver DeLancey, in 1801, at which time the owner, Hannah Turner, was under the disability of coverture as well as of insanity. These disabilities continued till her death, in 1822, and were continued in her heir at law, Jemima, by reason of her coverture, until 1832.

The statute provides in substance, (N. Y. R. L. of 1801, vol. 1, p. 562,) that action may be brought within twenty-five or twenty years (as the case may be) after descent cast; and that the time during which the disability of coverture or insanity shall continue, shall form no part of the period of limitation.

In this case, the disability existed when the adverse possession commenced, (Hannah Turner having the title, and being under disability from 1749 to 1822, while the adverse possession commenced in 1801,) and it continued uninterruptedly to exist, in the persons of her and her daughter, Jemima Thorpe, until the death of the husband of the latter, in 1832. The statute of limitations, therefore, did not commence to run against the original and lawful title until the last named year, and consequently the right of action continued unimpaired until 1852.

The judgment should therefore be set aside, and a new trial ordered.

Defendant's points. I. The adverse possession by the defendant, and those under whom he claimed from the 1st of May, 1801, to the time of the commencement of this suit, in 1850, was perfect, and barred and extinguished the title and right of the plaintiff. 24 Wend. 603, 604, 614; 16 Peters, 455; 2 R. L. N. Y. c. 185, p. 183; 2 R. S. N. Y. p. 222, § 11.

II. Hannah Turner, being under the disability of mental incapacity from the time the adverse possession commenced, to wit, 1st of May, 1801, until her death, in 1822, her heirs at law had ten years after her death within which to bring their action. 2 R. L. N. Y. c. 185, p. 183, §§ 2, 3.

III. Hannah Turner having died in 1822, Jemima Thorpe, her heir at law, and the mother of the plaintiff, should have brought her action within ten years after her death; as the ten years, with the time which elapsed after the adverse possession commenced exceeded twenty years, which would bar ejectment, and exceeded twenty-five years, which would bar a writ of right. Smith v. Burtis, 9 Johns. 174; Demarest and wife v. Wynkoop, 3 Johns. Ch. R. 129, 135; ''Jackson, ex dem. v. Johnson,'' 5 Cow. 74. As to the rule in England, under Statute 21 James, c. 16, ''Doe, ex dem. v. Jesson,'' 6 East, R. 80. Also in Pennsylvania, under Statute 26th March, 1785, Wendle v. Robertson, 6 Watts's Rep. 486.

IV. The plaintiff, and those under whom he claims, not having brought their action within the time allowed by law, are barred by the statute from recovering said premises, or any interest therein. 2 R. L. N. Y. c. 185, p. 183.

Mr. Justice NELSON delivered the opinion of the court.