Colgan v. Pellens

• Decision Date: 18 February 1886
• Parties: COLGAN v. PELLENS.
• Court: New Jersey Supreme Court

2 A. 633

48 N.J.L. 27

COLGAN

v. PELLENS.

Supreme Court of New Jersey.

February 18, 1886.

This was an action of ejectment for lands in Hoboken. Plaintiff claimed under Bernard Colgan, who purchased the lands in 1829, and died seized of them in 1835. He left Ann Colgan, his widow, but no issue. He left three brothers and one sister, all aliens. At Bernard's death one of the brothers was married, and had two sons, born in this state. One of them afterwards died an infant and without issue; the other, who was also named Bernard, died about 1875, aged about 44 years, leaving no issue. After the death of Bernard the elder, the father of Bernard the younger had another son named Andrew. The lands in question were conveyed to plaintiff by Andrew, and the widow of Bernard the younger released to plaintiff her rights therein. These facts were shown by plaintiff at the trial. It also appeared that on March 8, 1836, (Laws 1836, p. 320,) an act of the legislature was passed which, after reciting in the preamble a petition of Ann, widow of Bernard Colgan, setting out that her deceased husband left no lawful heirs who could inherit his real estate, by reason of which it would escheat to the state, granted all the right of the state in such real estate to Ann Colgan, her heirs and assigns, with a proviso that nothing in the act should interfere with the lawful claims of any person to said lands except such as claimed under the state. It further appeared that after her husband's death Ann Colgan remained in possession until her death about 1845. During that time she married John Stanton, and had living issue by him, which issue did not survive her. After her death, John Stanton remained in possession until his death in 1877. Defendant claimed under the heirs at law of Ann Colgan Stanton; but also set up, to defeat plaintiff's recovery, title acquired by adverse possession in Ann or John Stanton, or one of them. Judgment was for defendant, and plaintiff now assigns for error an admission of evidence against his objection, a refusal to charge according to his request, and the charge on the same subject.

S. B. Ransom, for plaintiff.

Mr. Besson, for defendant.

MAGIE, J. The exception relating to the alleged improper admission of evidence has not been pressed. The sole contention has been that the court below erred in the charge and refusal to charge. Plaintiff's case primarily involved the construction of section 12 of the "Act directing the descent of real estates," (Revision, 296,) which provides that, in making title by descent, it shall be no bar to a party that any ancestor through whom he or she derives his or her descent from the intestate is or hath been an alien. He contends that, by force of this section, the real estate of Bernard Colgan, the elder, descended to his two nephews, John and Bernard the younger, children of his alien brother Thomas; that on John's death without issue, his share passed to Bernard the younger; and that on his death without issue, the whole passed to his after-born brother Andrew, subject to the dower of his widow. The court below reserved the question so presented, and directed the jury to determine whether, under the evidence, an adverse possession for 20 years had barred plaintiffs claim. Upon this direction the jury found for defendant, and the court properly directed judgment to be entered in his favor; for whether plaintiffs claim was sustainable in a legal point of view became obviously immaterial when it was determined that, if he had acquired the title he claimed, he was barred from its assertion.

The question presented by the exceptions is whether there was error in the instructions, or refusal to instruct, on the subject of adverse possession in the respect excepted to. The exceptions cover instructions which, in substance, required the jury to determine whether the possession of John Stanton was, as to plaintiff and those under whom he claims, an adverse possession. The possession of Ann Colgan Stanton commenced during the infancy of Bernard Colgan the younger, and terminated at her death, which occurred before he arrived at full age. The statute did not, therefore, run in her favor against him. But the possession of John Stanton, though commenced in minority of Bernard the younger, continued for over 20 years after he arrived at full age. The court below therefore properly treated the case in this aspect as dependent on the nature of John Stanton's possession. Since, however, Ann Colgan Stanton died in possession, and John, her husband, continued that possession, living issue having been born to them during marriage, an inference was possible that his possession was as tenant by the curtesy, or under a claim of such a right. In this mode it is insisted that the nature of Ann's possession is incidentally drawn in question. Ann's possession immediately succeeding the death of Bernard Colgan the elder is plainly referable to her right as dowress. In the absence of any circumstance indicative of a change in the nature of her possession, it must he considered to have continued as...