so included consist of a tract divided into lots, the possession of one lot shall not be deemed a possession of any other lot of the same tract.

Questions

1. Q. Does a grantee who enters into the possession of lands excepted in his conveyance of other lands, and who holds possession of such excepted lands for twenty years, hold adversely so as to bar a recovery of such excepted lands by the grantee thereof?

2. Q. What is the difference between the statute regulating and defining adverse possessions and prescribing their effect in quieting titles, &c., and the act against champerty?

1. Q. Does a grantee who enters into the possession of lands excepted in his conveyance of other lands, and who holds possession of such excepted lands for twenty years, hold adversely so as to bar a recovery of such excepted lands by the grantee thereof?

A. In Rosseel agt. Wikham, 36 Barb., 389, General Term, March, 1862, JOHNSON, J., it was decided, that a grantee, by accepting a deed containing an exception of certain lands previously sold and Conveyed to another, and then entering into the possession of the lands thus excepted, will be deemed in law to have entered in subserviency to the title of the grantee of the excepted land, and to continue to hold in subserviency thereto; unless he can establish the contrary, by some clear and unequivocal act or claim of title in himself. Where A., in 1812, took a conveyance from B., of certain lands therein described, in which other lands were excepted, and the facts recited that the lots thus excepted had been previously sold and conveyed to C., and A went into possession of the lands so conveyed, and of the lots excepted at the same time, and occupied them from 1812 to 1860; although A had been in possession of the excepted lots for more than twenty years, his entry was not hostile to the title of those claiming under C., and his possession was not adverse to theirs, so as to bar a recovery of the possession of the lots, in ejectment. 2. Q. What is the difference between the statute regulating and defining adverse possessions and prescribing their effect in quieting titles, &c., and the act against champerty?

A. In Crary agt. Goodman, 22 N. Y. R., 172, Sept., 1860, SELDEN, J., it was decided, that to make the possession of land adverse so as to avoid a deed thereof, under the statute against champerty (1 R. S., 739, § 147), such possession must be under the claim of some specific title. A general assertion of ownership, irrespective of any particular title, is insufficient, therefore, where a party occupies 130 acres, having a title to 100 only, but supposing the entire tract so occupied to include but 100 acres, his possession is not adverse so as to render a grant by the true owner champertous. It seems, it is otherwise in respect to adverse possession, for the purposes of the statute of limitations.

In Fish agt. Fish, 39 Barb., 513, General Term, April, 1863, ALLEN, J., it was decided. that the statute (3 R. S., 5th ed., 503) regulating and defining adverse possessions, and prescribing their effect in quieting titles and limiting actions, is essentially different in its terms from the act against champerty. Under the champerty act (3 R. S., 5th ed., 167), which makes every grant of land absolutely void if at the time of the delivery thereof such lands shall be in the actual possession of a person claiming under a title adverse to that of the grantor, the possession must not only be adverse, but it must be under some specific title which, if valid, would sustain the claim. A general assertion of ownership, without reference to a particular title, or relying upon a title which would not entitle the party to the possession, is insufficient. The objects of the two acts were different. The one was to quiet titles and terminate disputes, and the other was to pre vent the transfer of disputed titles; hence the difference in their phraseology. To avoid a deed given by one out of possession, the party in possession must hold adversely, "claiming under a title." and not "under claim of title." A title which the defendant has conveyed to the plaintiff's grantor cannot be a title in him under which he can set up an adverse possession to avoid a deed by his own grantee. A certificate given to a purchaser at a tax sale, by a municipal corporation, entitling him to a deed at the expiration of a year, unless the premises shall be returned, but not giving him the possession or the right of possession, and not professing to transfer the title, does not constitute a title under which the holder can claim an adverse possession.

In Newton agt. McLean, 41 Barb., 288, General Term, September, 1863, E. DARWIN

SMITH, J., it was decided, that the possession which avoids a deed for champerty, must be under a claim of a title adverse to that of the grantor in the deed sought to be avoided. A cestui que trust cannot claim to hold adversely under his own trustee.

$83. What constitutes adverse possession, under written instrument or judgment.

For the purpose of constituting an adverse possession, by any person claiming a title founded upon a written instrument, or a judgment or decree, land shall be deemed to have been possessed and occupied in the following cases:

1. Where it has been usually cultivated or improved;

2. Where it has been protected by a substantial enclosure; 3. Where, although not enclosed, it has been used for the supply of fuel or of fencing timber, for the purposes of husbandry, or the ordinary use of the occupant;

4. Where a known farm or a single lot has been partly improved, the portion of such farm or lot that may have been left not cleared, or not enclosed according to the usual course and custom of the adjoining country, shall be deemed to have been occupied for the same length of time as the part improved and cultivated.

Questions.

1. Q. When does adverse possession of lands under a written instrument or judgment constitute a bar?

2. Q. Can an alien defend his possession of lands, by showing an adverse possession of twenty years?

3. Q. Can a corporation claim title by means of adverse possession?

1. Q. When does adverse possession of lands under a written instrument or judgment constitute a bar?

A. The answer to this question will be found under section 75, Q. 2.

2. Q. Can an alien defend his possession of lands, by showing an adverse possession of twenty years?

A. In Overing agt. Russell, 32 Barb., 263, General Term, May, 1860, MASON, J., it was decided, that an alien, although he may not acquire title to real estate, as against the true owner, by an adverse possession of twenty years, claiming title thereto in himself, may defend his possession as against one showing title, by showing an adverse possession of twenty years.

3. Q. Can a corporation claim title by means of adverse possession?

A. In Robie agt. Sedgwick, 35 Barb., 328, General Term, December, 1861, JOHNSON, J.. it was decided, that a corporation may claim title by means of adverse possession, the same as an individual, and this too when it is incapable of taking by grant; and twenty years exclusive possession of land, by a corportion (trustees of a school district) adverse and under claim of title, is sufficient to raise the presumption of a vavid title in them.

84. Premises actually occupied, under claim of title, deemed to be held adversely.

Where it shall appear that there has been an actual continued occupation of premises, under a claim of title, exclusive of any other right, but not founded upon a written instrument, or a judgment or decree, the premises so actually occupied and no other, shall be deemed to have been held adversely.

$85. What constitutes adverse possession under claim of title,

not written.

For the purpose of constituting an adverse possession, by a person claiming title not founded upon a written instrument, or a judgment or decree, land shall be deemed to have been possessed and occupied in the following cases, only:

1. Where it has been protected by a substantial enclosure ; 2. Where it has been usually cultivated or improved.

Questions.

1. Q. When does an uninterrupted use and enjoyment of a right of private way over the land of another, become an adverse enjoyment sufficient to raise a presumption of a grant? 2. Q. When will an entry and claim of title to lands by occupation, be deemed adverse only of so much thereof as have been protected by a substantial enclosure or have been cultivated and improved?

1. Q. When does an uninterrupted use and enjoyment of a right of private way over the land of another, become an adverse enjoyment sufficient to raise a presumption of a grant? 4. In Miller agt. Garlock, 8 Barb., 153, Special Term, February, 1850, PAIGE, J., it was decided, that an uninterrupted use and enjoyment of a right of private way over the land of another for twenty years, becomes an adverse enjoyment, sufficient to raise a presumption of a grant. And the use of an easement for twenty years unexplained, will be presumed to be under a claim or assertion of right, and adverse, and not by leave or favor of the owner, and such a use will not only give a prescription, but will authorize the presumption of a grant. Time out of mind, or legal memory, for the purpose of supporting a prescription, in this state, previous to 1830, was twenty-five years, and is now twenty years.

2. Q. When will an entry and claim of title to lands by occupation, be deemed adverse

only of so much thereof as have been protected by a substantial inclosure or have been culti rated and improved?

A. In Becker agt. Van Valkenburgh, 29 Barb., 322, General Term, December, 1858, WRIGHT, J., it was decided, that if a person's entry and claim of title are not founded upon any written instrument, or any judgment or decree, he will be deemed to have pos sessed and occupied only so much of the lands as have been protected by a substantial inclosure, or have been usually cultivated or improved. In such case there must be a pedis possessio-an actual occupancy, or a substantial inclosure of the lands, definite, notorious and certain, to constitute an adverse possession Under the Revised Statutes, as formerly, if an adverse possession commences in the life time of the ancestor, it will continue to run against the heir, notwithstanding any existing disability on the part of the latter, when the right accrues to him or her.

In Doolittle agt. Tice, 41 Barb., 181, General Term, September, 1863, MILLER, J., it was decided, that the language of this section: 1. Where it has been protected by a substantial inclosure. 2. Where it has been cultivated or improved, was intended to provide that a party claiming to hold adversely, where his claim was not founded upon a written instrument, or a judgment or decree, should protect his claim by the erection of a substantial inclosure, and the language employed means that he shall erect or provide the inclosure around the land, without relying upon a distant and remote fence of a neighbor, inclosing that neighbor's land also. And although he may avail himself of a fence upon the line, yet it was not designed that a fence located far away from the premises and including other lands, should be used as a means of protection to a claim of this character. It was also intended that the inclosure should provide fixed, certain and definite boundaries of the claim made, by which it might be designated, marked and known. It must be an inclosure of the lot alone, upon the lines claimed by the party, and not embracing premises adjoining, extending in part a great distance from the lines. The land must not only be cultivated but improved. Both cultivation and improvement are essential to constitute a compliance with the 2d clause of the section. Reaping alone cannot be considered as cultivating. Nor can the keeping up a fence already made, mowing the grass and cutting brush, be considered an improvement within the meaning of the stat ute. The statute was intended to provide for the ordinary cultivation and improvement of lands in the manner in which they are usually occupied, used and enjoyed by farmers for agricultural purposes, such as sowing, plowing and manuring, and by the erection of buildings, &c., which might add to their value.

In Munro agt. Merchant, 28 N. Y. R., 9, September, 1863, DENIO, Ch. J., it was decided, that a deed purporting to be executed by virtue of a power of attorney from the owner of the land, which power is not proved, affords sufficient color of title on which to found an adverse possession, if there has been a good constructive occupation, under it. Where a grantee of a large tract of uncultivated land entered upon the same, in 1797, under and by virtue of his deed, and made extensive, valuable and permanent improvements, erected buildings, and paid taxes thereon; the cleared portion being continuously occupied by him and his successors in the title, and by his and their lessees and tenants, down to the present time, under a claim of title to the whole tract; and the uncleared portion of the land having been extensively used for cutting timber for the market, and for fencing and fire wood; held, that in the absence of any subordinate allotment which would limit the effect of such entry and possession, the whole of the premises included in the deed were, by force of 9th section of the article of the Revised Statutes relative to the time of commencing actions relating to real property, (2 R. S. 294,) to be deemed to have been held adversely to persons claiming to hold under a subsequent deed. The provisions of that article of the Revised Statutes were not intended to introduce a new rule, applicable only to future cases, but are declaratory of the then existing law.

$86. Relation of landlord and tenant, as affecting adverse possession.

Whenever the relation of landlord and tenant shall have existed between any persons, the possession of the tenant shall be deemed the possession of the landlord, until the expiration of twenty years from the termination of the tenancy; or where there has been no written lease, until the expiration of twenty years from the time of the last payment of rent; not

withstanding that such tenant may have acquired another title, or may have claimed to hold adversely to his landlord. But such presumptions shall not be made after the periods herein limited.

$87. Right of possession not affected by descent cast.

The right of a person to the possession of any real property, shall not be impaired or affected by a descent being cast in consequence of the death of a person in possession of such property.

1. Question. Can an action for the possession of land, on the death of a sole defendant be continued against his heirs?

Answer. An answer to this question will be found under section 121, Q. 4.

In Jackson agt. Schoonmaker, 4 John., 401, General Term, August, 1809, KENT, J., it was decided, that neither a descent cast, nor the statute of limitations, will bar or affect the right of a remainderman, or reversioner, during the continuance of the particular estate, nor will the acts or laches of the tentant of the particular estate, affect the party entitled in remainder. An entry to avoid the statute, must be an entry for the purpose of taking possession.

In Fleming agt. Griswold, 3 Hill, 86, General Term, May, 1842, and in Becker agt. Var, Valkenburgh, 29 Barb., 324, General Term, May, 1859, WRIGHT, J., it was decided, that under the Revised Statutes, as formerly, if an adverse possession commence in the life time of the ancestor, it will continue to run against the heir, notwithstanding any disabiltiy on the part of the latter when the right accrues to him or her.

88. Certain disabilities excluded from time to commmence actions

If a person entitled to commence any action for the recovery of real property, or to make an entry or defense founded on the title to real property. or to rents or services out of the same, be at the time such title shall first descend or accrue either:

1. Within the age of twenty-one years, or,

2. Insane, or

3. Imprisoned on a criminal charge, or in execution upon conviction of a criminal offense, for a term less than for life, or 4. A Married woman:

The time, during which such disability shall continue, shall not be deemed any portion of the time in this chapter limited for the commencement of such action, or the making of such