CHAPTER IV.

LIMITATION OF THE TIME OF ENFORCING A CIVIL REMEDY.

TITLE I.

TITLE II.

ACTIONS FOR THE RECOVERY OF REAL
PROPERTY.

ACTIONS OTHER THAN FOR THE RECOVERY
OF REAL PROPERTY.

TITLE III.— GENERAL PROVISIONS.

TITLE I.

Actions for the recovery of real property.

SEC. 362. When the people will not sue.

363. Action by grantee from the State.

364. Action after annulling letters patent.

365, 366. Selzin within twenty years, when necessary, etc.

367. Action after entry.

368. Possession, when presumed; occupation presumed to be under legal title.

369. Adverse possession under written instrument or judgment. 370. Id. what constitutes it.

371. Adverse possession under claim of title not written.

372. Id. what constitutes it.

373. Relation of landlord and tenant, as affecting adverse possession.

374. Right not affected by descent cast.

375. Certain disabilities excluded from time to commence action.

362. When the people will not sue.— - The people of the State will not sue a person for or with respect to real property, or the issues or profits thereof, by reason of the right or title of the people to the same, unless either:

1. The cause of action accrued within forty years before the action is commenced; or,

2. The people, or those from whom they claim, have received the rents and profits of the real property, or of some part thereof, within the same period of time.

Co. Proc., 75, am'd. People v. Van Rensselaer, 8 Barb. 189; People v. Livingston, id. 254; People v. Arnold, 4 N. Y. 508; People v. Gilbert, 18 Johns. 227; United States v. White, 2 Hill, 69; People v. Trinity Church, 22 N. Y. 44.

§ 363. Action by grantee from the State. An action shall not be brought for or with respect to real property, by a person claiming by virtue of letters patent or a grant, from the people of the State, unless it might have been maintained by the people, as prescribed in this title, if the patent or grant had not been issued or made.

Co. Proc., 76.

364. Action after annulling letters patent. Where letters patent or a grant of real property, issued or made by the people of the State, are declared void by the determination of a competent court, rendered upon an allegation of a fraudulent suggestion or concealment, or of a forfeiture, or mistake, or ignorance of a material fact, or wrongful detaining, or defective title; an action of ejectment, to recover the premises in question, may be commenced, either by the people, or by a subsequent patentee or grantee of the same premises, his heirs, or assigns, within twenty years after the determination is made; but not after that period.

Id., 77.

§ 365. Seizin within twenty years, when necessary, etc.- An action to recover real property, or the possession thereof, cannot be maintained by a party, other than the people, unless the plaintiff, his ancestor, predecessor, or grantor, was seized or possessed of the premises in question, within twenty years before the commencement of the action.

Id., 78. Miner. Beekman, 50 N. Y. 337; Hubbell. Sibley, id. 468; Depew v. Dewey, 46 How. 441; Marvin v. Lewis, 61 Barb. 49.

$366. The same. A defence or counterclaim, founded upon the title to real property, or to rents or services out of the same, is not effectual, unless the person making it, or under whose title it is made, or his ancestor, predecessor, or grantor, was seized or possessed of the premises in question, within twenty years before the committing of the act, with respect to which it is made.

Co. Proc., 79, am'd. Tyler v. Heldorn, 46 Barb. 463.

§ 367. Action after entry.-An entry upon real property is not sufficient or valid as a claim, unless an action

is commenced thereupon, within one year after the making thereof, and within twenty years after the time, when the right to make it descended or accrued.

Co. Proc., 80.

$368. Possession, when presumed; occupation presumed to be under legal title. - In an action to recover real property, or the possession thereof, the person who establishes a legal title to the premises is presumed to have been possessed thereof, within the time required by law; and the occupation of the premises, by another person, is deemed to have been under and in subordination to the legal title, unless the premises have been held and possessed adversely to the legal title, for twenty years before the commencement of the action.

Id.. 81. See Wood v. Squires, 3 T. & C. 468; s. c.,1 Hun, 481; Robie v. Sedgwick, 35 Barb. 314.

§ 359. Adverse possession under written instrument or judgment. Where the occupant, or those under whom he claims, entered into the possession of the premises, under claim of title, exclusive of any other right, founding the claim upon a written instrument, as being a conveyance of the premises in question, or upon the decree or judgment of a competent court; and there has been a continued occupation and possession of the premises, included in the instrument, decree, or judgment, or of some part thereof, for twenty years, under the same claim; the premises so included are deemed to have been held adversely: except that where they consist of a tract, divided into lots, the possession of one lot is not deemed a possession of any other lot. Id., 82. Becker v. Van Valkenburgh, 29 Barb. 319; Hilton v. Bender, 2 Hun, 1.

$370. Id.; what constitutes it. - For the purpose of constituting an adverse possession, by a person claiming a title, founded upon a written instrument, or a judgment or decree, land is deemed to have been possessed and occupied in either of the following cases:

1. Where it has been usually cultivated or improved.

2. Where it has been protected by a substantial inclosure.

3. Where, although not inclosed, it has been used for

the supply of fuel, or of fencing timber, either for the purposes of husbandry, or for the ordinary use of the occupant.

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

Co. Proc., 83, am'd. Munro e. Merchant, 26 Barb. 333; s. c., 28 N. Y. 19; Bedel! r. Shaw, 59 id. 46; Sands r. Hughes, 53 id. 256; Hilton e. Bender, 2 Hun, 1; Wheeler r. Spinola, 34 N. Y. 377; Robinson r. Phillips, 36 d. 634:; Cramer v. Benton, 4 Lans. 291; Becker v. Van Valkenburgh, 29 Barb. 319.

$ 371. Adverse possession under claim of title not written. Where 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 others, are deemed to have been held adversely.

Id., 84. Becker v. Van Valkenburgh, supra.

§ 372. Id.; what constitutes it. - For the purpose of constituting an adverse possession, by a person claiming title, not founded upon a written instrument, or a judg. ment or decree, land is deemed to have been possessed and occupied in either of the following cases, and no others:

1. Where it has been protected by a substantial inclosure.

2. Where it has been usually cultivated or improved. Id., 385. Becker v. Van Valkenburgh, supra; Miller v. Garlock, 8 Barb. 153; Munro v. Merchant, 23 N. Y. 10; Doolittle v. Tice, 41 Barb. 181; Bedell v. Shaw, 59 N. Y. 46: Sands v. Hughes, 53 id. 286; Wheeler v. Spinola, 54 Id. 377; Hilton v. Bender, 2 Hun, 1; Borden v. Smithside, 5 id. 184; Devyr v. Schaefer, 55 N. Y. 446.

§ 373. Relation of landlord and tenant, as affecting adverse possession. Where the relation of landlord and tenant has existed between any persons, the possession of the tenant is deemed the possession of the landlord, until the expiration of twenty years after the termination of the tenancy; or, where there has been no written lease, until the expiration of twenty years after the last payment of rent; notwithstanding that

the tenant has acquired another title, or has claimed to hold adversely to his landlord. But this presumption shall not be made, after the periods prescribed in this

section.

Co. Proc., 86. Tompkins v. Snow, 63 Barb. 525; Hilton v. Bender, 4 T. & C. 270; s. c., 2 Hun, 1; Tyler v. Heldorn, 46 Barb. 441.

$374. Right not affected by descent cast. — The right of a person to the possession of real property is not impaired or affected, by a descent being cast, in consequence of the death of a person in possession of the property.

Id., 87.

$375. Certain disabilities excluded from time to commence action. If a person, who might maintain an action to recover real property, or the possession thereof, or make an entry, or interpose a defence or counterclaim, founded on the title to real property, or to rents or services out of the same, is, when his title first descends, or his cause of action or right of entry first accrues, 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 offence, for a term less than for life;

The time of such a disability is not a part of the time, limited in this title, for commencing the action, or mak ing the entry, or interposing the defence or counter claim; except that the time so limited cannot be extended more than ten years, after the disability ceases, or after the death of the person so disabled.

Id, 88. Halsey v. Reld, 4 Hun, 777: Fogal v. Pirro, 10 Bosw. 100; Tyler v. Heldorn, 46 Barb. 441; Sanford r. Sanford, 2 Hun, 94; s. c., 4 T. & C. 686; affirmed, 62 N. Y. 553; Bucklin r. Bucklin, 1 Keyes, 141; Wood v. Riker, 1 Pai. 616; Moore v. Erwin, 4 Wend. 58; Colden v. Moore, 13 Johns. 513; Fleming v. Griswold, 3 Hill, 85; Becker v. Van Valkenburgh, 29 Barb. 319; Bunt v. Ransom, 10 Johns. 407; Swartwout v. Johnson, 5 Cow. 74; Roosevelt v. Wheat, 18 Johns. 40; Bradstreet v. Clarke, 12 Wend. 602; Corson v. Cairns, 20 Johns. 301.