165 N.Y. 385, Young v. Shulenberg

Citation:165 N.Y. 385
Party Name:EVERETT YOUNG, Respondent, v. JOHN C. SHULENBERG, Appellant.
Case Date:January 22, 1901
Court:New York Court of Appeals
 
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Page 385

165 N.Y. 385

EVERETT YOUNG, Respondent,

v.

JOHN C. SHULENBERG, Appellant.

New York Court of Appeal

January 22, 1901

Argued November 27, 1900.

Page 386

COUNSEL

Clark L. Jordan for appellant. The trial court erred in holding that the plaintiff had satisfactorily proven his title to great lot No. 67. (Hyde Park v. Canton, 130 Mass. 505; Duke of Cumberland v. Graves, 9 Barb. 595; Greenleaf v. B., F. & C. I. R. R. Co., 132 N.Y. 408.) The trial court erred in its refusal to charge the jury that they must find that the persons signing the deed from Anne Ellice and others to Edward Ellice were, in fact, the heirs of Alexander Ellice, and that Alexander Ellice was actually dead at that time. (Hyde Park v. Canton, 130 Mass. 505; Com. v. Hayes, 145 Mass. 289; Com. v. Briant, 142 Mass. 463.)

Andrew J. Nellis for respondent. That plaintiff had title to the locus was a legal presumption properly drawn by the court from the uncontradicted facts. The jury had no right upon those facts to infer that Alexander Ellice was not dead in 1817, and that Anne Ellice and others, grantors in the deeds to Edward Ellice, were not with said Edward Ellice, his widow and heirs at law. (Fulkerson v. Holmes, 117 U.S. 389; Greenl. on Ev. [ 14th ed.] § 103; 18 Am. & Eng. Ency. of Law, 258; 1 Whart. on Ev. [ 3d ed.] § § 201, 218; Best. Pr. Ev. [ Am. ed.] 498; Letter v. Gehr, 105 Penn. St. 577; Spriggs v. Moale, 28 Md. 506; Weale v. Lohmer, Pollex, 53; Knapper v. Saunders, Hutton, 118; Keeble's Case, Littleton, 370; 2 Best on Ev. [ Morgan's Notes] 848, § 498.) Upon the claim of title as it is, the death of Alexander Ellice and that respondent has good title will be presumed. (N.Y. C. & H. R. R. R. Co. v. Brennan, 12 A.D. 103; Greenleaf v. B., F. & C. I. R. R. Co., 132 N.Y. 408; Ensign v. McKinney, 12 Abb. [ N. C.] 463; Allen v. Lyons, 2 Wash. C. C. 475; Thomas v. Visitors, etc., 7 Gill & J. 385; Carter v. T. Finishing Co., 77 Penn. St. 310.)

VANN, J.

The complaint charges the defendant with unlawfully entering upon lands of the plaintiff and cutting

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down and carrying away a large number of trees therefrom. Neither by his answer nor evidence did the defendant claim the right to enter upon the land in question or to cut trees thereon, but he put at issue the entry by himself, as well as the title of the plaintiff. The land upon which the alleged trespass was committed was virgin forest in the county of Fulton that had never been so inclosed, cultivated or used as to constitute an adverse possession. (Code Civ. Pro. § 370.) The plaintiff proved a record title thereto, commencing in 1794, when letters patent were granted by the state of New York, and extending through various mesne conveyances until 1872 when the apparent title vested in William Claflin, of whom in September, 1893, the plaintiff purchased by a contract which imposed upon him...

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