Jackson ex dem. Banyar v. Willson

The ground on which the defendants rest is, that the lessors of the plaintiff, by their own showing, in the recitals to the partition deed of 1763, admit an elder patent, covering the premises, and that although the recitals show a purchase of a part of this patent, there is no purchase of the premises stated. There is, then, a title existing out of the lessors, as they are es-topped by the recital from denying the existence of such a prior patent. The recital is here of a particular fact directly affirmed. (Shelley v. Wright, Willes’s Rep. 9.) But the title under which the defendants claim appears to have been derived from the Leakes, and they to have claimed under Wells, who was one of the Pittstomn proprietors. The source of title set up by both parties would seem, at first view, to be the Pittstorvn patent. But *96the mere fact that Wells was a Pittstown patentee, is not sufficient to prove that he held the premises under that patent, when, by the plaintiff's own showing, the premises were covered by an older patent, and under which purchases had been made by the Pitistonn proprietors. The omission to draw for and divide lots 53. and 54. is, of itself, evidence of the sense of the proprietors that the premises were not claimed by that patent. It ought to appear, clearly and positively, that Wells claimed the premises under the Pittstonn patent, and fransniitted such claims to the Leakes, before we can conclude that the Leakes possessed under that title, and as tenants in common with the other Pittstonn proprietors. Itis a more reasonable presumption, because it is in harmony wilh the rights and the facts disclosed by the partition deed, that Wells had purchased in the title under the Synha nesset patent, and held under that title, and if so, the lessors of the plaintiff were not entitled to recover.

A new trial ought, therefore, to be awarded, with costs to abide the event of the suit.