were embraced in the action of ejectment provided by the Revised Statutes. Indeed, it is expressly declared, that the general provisions of the Revised Statutes relating to actions concerning real property shall apply to actions brought under the Code, according to the. subject-matter of the action, and without regard to its form. (Code, § 455.) It is further provided by the Code, that no cause of action or defense to an action founded upon the title to real property, or to rents or services out of the same, shall be effectual, unless it appear that the person prosecuting the action, or making the defense, or under whose title the action is prosecuted, or the defense is made, or the ancestor, predecessor, or grantor of such person, was seised or possessed of the premises in question, within twenty years before the committing of the act, in respect to which such action is prosecuted or defense made. (Code, § 79.) It will be observed, that the same principle is extended as well to the defense of the action as to its prosecution, when founded upon the title to real property, or to rents or services out of the same.

The statute has given a legislative definition of the effect of an entry, by declaring, that no entry upon real estate shall be deemed sufficient or valid as a claim, unless an action be commenced thereupon within one year after the making of such entry, and within twenty years from the time when the right to make such entry descended or accrued. (Code, § 80.)

In every action for the recovery of real property, or the possession thereof, the person establishing a legal title to the premises is presumed to have been possessed thereof within the time required by law; and the occupation of such premises by any other person will be deemed to have been under and in subordination to the legal title, unless it appear, that such premises have been held and possessed adversely to such legal title for twenty years before the commencement of such action. (Code, § 81.)

This section settles, by legislative enactment, a doctrine which had long been tolerably well settled by the decisions of the courts, viz., that the presumption is, that every actual possession of real property is under and in subordination to the legal title. (Vide Jackson v. Sharp, 9 Johns. R. 163. Wickham v. Conklin, 8 ib.

228. Jackson v. Thomas, 16 ib. 293.)

With respect to what shall constitute an adverse possession, the statute declares, that, whenever it shall appear that the occupant, or those under whom he claims, entered into the possession of

premises under claim of title, exclusive of any other right, founding such 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 that there has been a continued occupation and possession of the premises included in such instrument, decree or judgment, or of some part of such premises, under such claim for twenty years, the premises so included shall be deemed to have been held adversely, except that, when the premises 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. (Code, § 82.)

The statute further declares, that, 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: (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, 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 inclosed, according to the usual course or custom of the adjoining country, shall be deemed to have been occupied for the same length of time as the part improved and cultivated. (Code, § 83.)

But, 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. (Code, § 84.) 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 only, (1) where it has been protected by a substantial inclosure; (2) where it has been usually cultivated and improved. (Code, § 85.)

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, notwithstanding that such tenant may have acquired another title, or may have claimed to hold adversely to his landlord. But such presumptions will not be made after the periods thus limited. (Code, § 86.)

And it is expressly declared, that 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. (Code, § 87.)

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; (2) insane; (3) imprisoned on a criminal charge, or in execution upon conviction of a criminal offense, for a term less than for life; (4) a married woman, the statute declares that the time during which such disability shall continue shall not be deemed any portion of the time limited for the commencement of such action, or the making of such entry or defense; but such action may be commenced or entry or defense made after the period of twenty years, and within ten years after the disability shall cease, or after the death of the person entitled, who shall die under such disability; but such action cannot be commenced, or entry or defense made, after that period. (Code, § 88.)

It will be observed that there is a great similarity between the material provisions of the statute of limitations now in force in the state of New York, and those of the statute of 3 and 4 William IV, ch. 27, of England, showing very clearly that both acts were framed from the same model. The construction, therefore, which the courts have given to either act, may be regarded as applicable to both. The statute of New York has often been before the courts for judicial construction, but it is not proposed to make any thing more than a very cursory reference to the decisions in this place.

The rule in respect to actions in favor of the people, under the statute of New York, seems to be different in some respects than that relating to actions by individuals. In the first place, the people have forty years after their right of action accrued, within which to commence proceedings; while individuals ordinarily are limited to twenty years; and in the second place, an individual claimant must prove title in himself before he can call upon the

defendant in possession to respond; while in the case of the people, the rule is different. The people are presumed to have the title; and until that is actually shown to be out of them, the presumption is, that the occupation is in subordination to the title of the people. So that, as against the people, the defendant must show title in himself, or a continuous possession of forty years, or be ousted. (Vide The People v. Van Rensselaer, 8 Barb. R. 189.)

The people of the state, in their right of sovereignty, are deemed to possess the original and ultimate property in and to all lands within the jurisdiction of the state, and in an action of ejectment in their name, proof that the premises claimed were vacant and unoccupied within the period necessary to be shown to establish title by adverse possession against them, is sufficient in the first instance to authorize a recovery. (Wendell v. The People, 8 Wend. R. 183.) This proposition necessarily follows, from the fact of their being the source of title, as there can be no deduction of it shown, and, in ordinary cases, no actual possession. (The People v. Denison, 17 Wend. R. 312.)

It was not the intention of the legislature, in passing the statute of limitations, to defeat a title in the people which accrued more than forty years before suit brought, unless the land had been held for that period in hostility to the title; an action by the people, therefore, to recover lands, is not barred by the statute, unless it be shown that there has been an adverse possession of forty years before the commencement of the suit. (The People v. Arnold, 4 N. Y. R. 508.)

In the action of ejectment between private parties, the defendant in possession is presumed to have the title until the contrary appears. So the plaintiff, in such a case, may prove his title prima facie by showing a conveyance from a grantor who was the occupant at the time of the grant. A prior possession, even without any proof of a paper title, will prevail against an intruder. Title in a private person supposes a grant from the state or sovereign power. The presumptions founded on possession alone are, therefore, presumptions in favor of such a grant, and probably these presumptions will be recognized where the state itself is the claimant. A person in possession of land is supposed to have acquired the title which the people or the sovereign once held.

This is the general rule, and the people themselves, when they sue, are not wholly exempt from its operation; yet a strict appli

cation of the principle to such cases would be highly inconvenient, because the people, being the source of title, have usually no other means of proving that they are the owners. An advantage is therefore conceded to them which an individual does not possess, when they are the plaintiffs, the presumption in favor of the defendant, arising from a present occupancy, is shifted to the other side on showing that the possession has been vacant at any time within forty years, which is the period required to bar such an action by adverse possession. In respect to lands which are wholly unoccupied, the presumption may be a just and convenient one, that the people are the owners; but where it is not shown that such has been the condition of the property within the period named, no such presumption exists against the actual possession of the defendant. This doctrine has been recognized by the Court of Appeals in a very able opinion, in which all of the judges concurred, with the exception of one judge, who gave a dissenting opinion. (The People v. The Rector, etc., of Trinity Church, 22 N. Y. 44. Wells, J., dissenting, held, that the declaration of the organic law, that "the people of this State, in their right of sovereignty, are deemed to possess the original and ultimate property in and to all lands within the jurisdiction of this State," establishes incontrovertibly the proposition that the title to all the lands in the state is owned and held by, or has been derived, either immediately or remotely, from the people or their predecessor, the crown of England; that it is equivalent to the most conclusive evidence, that they, at some period in the past, were the absolute owners of all and every part of the lands of the state; and hence, that in an action by them to recover possession of any such part, all that is necessary to prove in the first instance, to sustain the action and put the defendant on the defense, is, that the defendant was an actual occupant of the premises; or, in case there was no such occupant, that he was exercising acts of ownership thereon, or claimed title thereto, or some interest therein, at the time of commencement of the action. He further argued, that to require the people to prove the premises vacant at any time, in view to put the defendant to his defense, would be violating law as well as logic; and would overturn and subvert the doctrine of presumption in similar cases, as established by a long and unbroken course of judicial decision, and would introduce an unwarrantable distinction in the application of the rule between cases where the people and those where individuals were