Jackson ex dem. Winthrop v. Waters

Thompson, Ch. J.

delivered the opinion of the cburt. The lessor of the plaintiff produced and proved a regular title for the premises in question, under a patent to Elkanah Dean, dated the 11th of July, 1769; and the only question in the case is.-, whether such an adverse possession was shown as to take away the right to recover, in this form of action. The origin of the adverse possession set up by the defendant, is that taken by La Framboise, in the year 1763, by permission of Mackay, who claimed under a grant made by the French government of Canada to La Gauchetierre, prior to the conquest of CVo nada by the British.

In the case of Jackson v. Ingraham, (4 Johns. Rep. 182.) it was held, by this court, that we could not notice any title to land not derived from our own government; that grants from the French government were to be treated as nullities, and absolutely void, and could not afford any legal evidence of title, which we could recognise. And,, if such be the light in which these pretended titles are to be viewed, the possession taken under these grants ought also to be considered as. unavailing, for any purpose. It cannot be deemed a possession in hostility to any private or individual right; but, rather, as a controversy between the two governments, and in no way affecting indivi-> dual claims, further than they were recognised and secured by' the treaty of 1763. No such right is established in the present case. The permission given by Mackay to La Framboise i§ extremely Vague and indefinite. It did not relate to any lot in particular, but was only a general permission to go on two "lots in his seignory. It was, substantially, a promise, that, when he should receive a title, he would convey to La Framboise,■ so that Mackay himself did not pretend to have any title thus vested in himself. Whatever right might have been supposed to pass by this permission, does not appear to have been followed up, or ever afterwards noticed, by either party. No consideration was paid by La Framboise for the land ; no rent .claimed or demanded by Mackay ; and it is reasonable to presume, under the circumstances attending these lands, thus held, that, -whatever pretended right he might once have had,, was *368 given up and abandoned by him. The possession thus held by La Framboise could not prevent the operation of the patent to- Dean, in the year 1769, and must he considered as held in. subordination to the title granted by the patent.

The doctrine of this court, with respect to adverse possession, is, that it is to be taken strictly, and not to be made out by inference, but by clear and positive proof. Every presumption is in favour of possession in subordination to the title of the true owner. (9 Johns. Rep. 167.) It must be hostile in its inception^ and continued so for twenty years; and must be marked by definite boundaries.- (1 Johns. Rep. 156. 2 Johns. Rep. 230.) The possession held by La Framboise, prior to his conveyance to Sailiey, in 1803, cannot be deemed adverse, if his original entry, under Mackay, is not to be so considered, as it clearly is not, it being taken under a foreign government, which we must reject as a legitimate source of title. The plaintiff must, accordingly, have judgment.

Judgment for the plaintiff.