Jackson ex dem. Bromley v. Benjamin

delivered the opinion of the court; The act of the 22d March, 1791, (14th sess. c. 42. s. 11.) relative to the subject in controversy, declared that all the rights of the people of this state to any lands in Canaan, (which then included Chatham,) and then possessed by any person, was thereby granted in fee to such possessors ; but with a proviso, that such possessors should be construed and taken to be the persons holding in their own right, and not occupying and improving in the right of another. From the facts disclosed in this case, I think it is evident, that the defendant entered under his father, and always, until his father’s death, occupied and improved, in right of his father. Ebenezer Benjamin purchased the land and took a deed, and settled the defendant, his son, upon it, immediately. If he intended that it should be the defendant’s, why did he not take the-deed in his name, at once? He never parted with his right, nor does it appear that the son ever meant or intended to hold independent of, or adversely to, his fa*104ther’s right- He must, consequently, be deemed tti hold under that right, as one of the heirs. There is no fact showing that he had set up an independent right in himself; and the bond which he executed to che heirs, so late as the year 1808, shows conclusively, that he still continued to possess under his father’s title, as one of the heirs; nor can the right of those heirs be at all affected by the act of 1791. That act only went to confirm the right of the heirs generally ; for the law had cast the inheritance upon them ; and the possession of the defendant, as one of the heirs, could not destroy the right of the others; but must be considered as the possession of all of them.

j augment ought, therefore, to be rendered for the plain 11 jf.

Judgment for the plaintiff.