NEW-YORK, States, and after the death of her husband made the conveyance relied on. The admiffion of this conveyance was refifted by the plaintiffs' counsel on three grounds:

May 1803. L. & H. Van

dyck

V.

ift. That the plaintiffs had given fufficient evidence of Van Beuren & abfolute, exclusive poffeffion of the premises pretended to be Volburg. conveyed to the defendants. 2dly. That this poffeffion amounted to an actual oufter, even upon the fuppofition that a tenancy in common was created by the faid Will. 3dly. That fuppofing Maria Herkemer could be confidered as a tenant in common, yet she had only a right of entry which is not affignable, and this being the cafe it contravened the statute made to prevent maintenance.

The objections were overruled. No evidence was given of the payment of the fum of £.12:10:0 to any of the daughters or to Maria. The Judge charged the law to be in favour of the defendants, in confequence of which a verdict was given for them.

On a motion for a new trial in April term 1801, it was so ordered; and the cause being heard before his honour Mr. Justice Radcliff, on the 6th of October 1801, a verdict was, on his honour's charge, rendered for the plaintiffs.

A motion was made to set aside this alfo; the facts were fubftantially the fame as in the former caufe, and the additional circumstances are noticed in the decifion of the court, but the reporter has to regret his inability to give the arguments at the hearing, as it took place before the commencement of the present series.

Per curiam. On the trial it was proved by the plaintiffs that they did then, and for about twenty years preceding had lived on De Bruyn's patent; that they had a house and orchard and 28 acres adjoining the fame, as early as 20 years preceding, and that they held other parcels of land; that the patent was divided in 1793, and the plaintiffs then took actual poffeffion of the loci in quibus, which were uncleared wood lots, and that the defendants had cut wood in fome of them; that in 1796, the plaintiffs had leafed parts of the lots contained in the declaration; that the plaintiffs claimed the whole of their lands in De Bruyn's patent, under the will of Stephanus Van Alen; that their mother was Hyletje, a daughter of Stephanus Van Alen; that in 1751 or in 1752, the lived where the plaintiffs now do on the patent, and the

plaintiffs then lived with her; that the land near the house NEW-YORK, was then cleared; that Hyletje died in 1767, and other par

May 1803.

V.

cels were cleared by that time, or at least by 1772; that one 1. & H. Vanpiece was cleared in 1761, and then in poffeffion of the plain- dyck tiffs; that Stephen Van Alen, the teftator, had a fon Corne- Van Beuren & lius, who had a fon Stephen, who had a fon Cornelius, each Vofburg. of whom was the eldeft fon in fucceffion.

On the part of the defendants, the will of Stephanus Van Alen was produced, bearing date 17th of May 1740. It was proved that the teftator left three fons, and that two of them died above fifty years ago without iffue; that Maria was the daughter of Lawrence, the eldest son of Stephanus, and who died in the life time of his father; that Maria married, at the age of 20, one Herkemer, and in 1776 or 1777 went to Canada to her husband; that her husband died in 1795, and that ever fince the refided in Canada. The defendants then offered a deed to them from Maria Herkemer, dated January 8, 1800, but this was overruled: that the defendants further proved, that in 1799, the fon of Maria Herkemer offered the premifes for fale to the plaintiffs for £.100; that the plaintiffs offered a price but no bargain was concluded; that, a few days after, one of the plaintiffs admitted that Maria Herkemer was heir to one ninth of his land-the deed was then offered again and rejected-the defendants further proved, that in 1751 or 1752, on a divifion of part of De Bruyn's patent, and which was after the death of Stephanus, his eldest fon Cornelius acted as agent for the fhare of Stephanus, and claimed, besides his own fhare under his father's will, one third of the two shares of his two brothers who were dead; that Henry Van Dyck claimed a ninth part of the patent, and that Hyletje and the plaintiffs after her claimed the whole fhare of Stephanus; that about that time Cornelius took poffeffion of part, and paid four-ninths of the cofts of an ejectment fuit in defending the land, and that the plaintiffs paid five-ninths of the costs; that on the divifion of the patent in 1793, the share of Stephanus was defignated as laid out for his reprefentatives. It was further proved that the plaintiffs had offered £.100 for Maria Herkemer's fhare, and one of the plaintiffs faid Maria had a right to money and not land by the will: that at another time (about 4 years ago) one of the plaintiffs confeffed he meant to buy a part of the premises of

NEW-YORK,

V.

Mrs. Herkemer: that Cornelius Van Alen, the fon of SteMay 1803. phen who was the son of Cornelius, had for many years unL. & H. Van- interruptedly cut wood in feveral of the lots mentioned in the dyck narration, and that, as well before as fince the divifion in Van Beuren & 1793, and that he, for several years past, had in poffeffion, Volburg. and still has two pieces of land in the land allotted to the fhare of Stephanus Van Alen: the deed of Mrs. Herkemer was again offered and refused, and a verdict taken for the plaintiffs.

It appears, by the will of Stephanus Van Alen* referred to in the cafe, that he gave to his "three fons, to wit, Cornelius, Jacobus, and Ephraim, and their heirs, all his lands or share in the De Bruyn's patent, each an equal third part, with a provifo or restriction that they should pay to his daughters Hyletje, Elbertje, Jannetje and Christina and to his grand-daughter Maria (daughter of his deceased fon Lawrence) each.12:10:0 in fix equal payments: and that if any of the faid children, or the grandchild should die under age or without iffue, the portion of fuch child or grandchild to be divided equally among the furvivors: the teftator further defired his faid three fons, that in cafe any of his faid daughters should be inclined to purchase of them the land in De Bruyn's patent for a living for herself and family, that then they let fuch of his daughters have it at the fame price they had it for."

This controverfy, upon a statement of facts substantially the fame with that in the present case, was formerly brought into view before this court and received a decifion in April term 1801. It came before the court upon a motion for a new trial for misdirection of the Judge who had charged the jury that the law was with the defendants, and who had admitted the deed of Maria Herkemer. A new trial was awarded by the court, and it is in confequence of fuch, new trial that the prefent application is made.

In the former cafe it appeared that the plaintiffs claimed the loci in quibus as fons of Hyletje, the eldest daughter of Stephanus Van Alen: that the defendants claimed under the recent deed of the widow Herkemer, and that her right arose under the will, fhe having furvived the two fons of the testa

*He claimed one ninth of the patent, amounting to 900 acres, chicfly pine

land.

May 1803.

tor, both of whom had died without iffue 55 years before the NEW-YORK, trial, when her right accrued, and that the claimed an undivided fixth part of two third parts of the testator's interest in L. & H. Vanthe patent.

The court then decided,

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V.

Van Beuren &
Volburg.

3 Durnf. 155.

1. That a deed from Cornelius to his fifter Hyletje might be prefumed from her entry fifty years before and uninterrupted poffeffion in her children fince, according to the nature 159. and fituation of the land; and that this prefumption was the more readily to be made fince fhe had a right by the will to claim a deed and had intimated her with accordingly.

Cowp. 217. a Page's cafe.

Slyright &

2. That if this was not fo, yet that the deed of the widow Herkemer was void, for fhe being out of poffeffion and no demand or claim by her husband or her for forty-two years after she came of age, the jury ought to have been directed to prefume an oufter, and that if oufted, fhe could not convey. The cafe in I Leon. 166,* was referred to as proving that feme covert, whilft feme covert might be diffeized, so as to render her deed before re-entry, maintenance. The first enquiry that naturally arifes in this cafe, is, whether there be any change in the facts fufficient to change the conclufions of law that were drawn in the former cafe?

1. With respect to the prefumption that Hyletje received a deed from her brother Cornelius, the fame facts are here to warrant it.

It appears that by the will of her father, an election was given to any of the daughters to purchase the premises and a truft was raised in the will for that purpose; that Hyletje entered upon the premises with her children as early as 1751 or 1752, and after her father's death, and claimed the whole fhare of Stephanus ; that the continued in poffeffion till her death in 1767, and that her fons have remained in poffeffion of the loci in quibus down to the prefent day, and have also claimed the whole fhare of the teftator; that this entry and poffeffion of Hyletje muft have been with the knowledge and affent of the other children, and have paffed under their eye, for it appears that on the divifion of the patent in 1751 or 1752, Cornelius, the fon of the teftator, was present and claimed the whole of his father's fhare, and took poffeffion of part; that this poffeffion must foon thereafter have been abandoned, fince we find within the fame year Hyletje in pof

N

May 1803.

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NEW-YORK, feffion, and this claim must foon thereafter have ceased, fince we hear no more of it, and the claim of Hyletje remained fanc→ L. & H. Van- tioned by poffeffion; that the poffeffion was fuch as the fubdyck ject was fufceptible of, it being understood that a large part of Van Beuren & the premises was uncleared pine land, and from all thefe cirVolburg. cumstances there arifes a ftrong and unfhaken prefumption of right. A deed is justly, if not necessarily to be presumed, and confiderations of public convenience and found policy will, under fuch circumftances of ancient and continued poffeffion by colour and claim of right, require the prefumption. We are therefore clearly of opinion that the decifion in the former cafe applies and governs the present one on the first point, and that the verdict is right and ought to stand, whatever may be our opinion as to the legal operation of the deed of Mrs. Herkemer. But,

We think that we are alfo bound by the former decifion to confider the deed of Mrs. Herkemer as void, and that the fame facts are stated in this cafe to lead to the fame refult. Her right, under the will, and upon the death of her two brothers, had accrued upwards of fifty years before the trial. Concurrently with the commencement of her right, Hyletje had entered under a claim to the whole fhare of her. father, and under a right to elect and demand a deed for the fame. This entry and enjoyment of the premises must have been adverse to the claim of her niece, and her poffeffion continued down in her and her fons, had every appearance of an exclusive and independent poffeffion. One ftrong mark of exclufive ownership was the extension of the clearings from time to time, and this in pursuance of a claim to the whole fhare of the teftator made by Hyletje and her fons. It does not appear that from the time of the commencement of the right of Mrs. Herkemer down to the date of her deed in 1800, a period of about fifty years, that the ever afferted her right, or received or claimed any share in the profits of the premises, and that an adverse claim of poffeffion was conftantly before her. These facts undoubtedly amount to an ouster, and when the court in the former decision said that the jury ought to have been directed to presume an oufter, the decifion undoubtedly was, that the law raised this presumption, and that the jury were not at liberty to refift it; that it was a prefumption of law arifing from facts, and if fo, it would not be the exer