Florence v. . Hopkins
New York Court of Appeals
Appeal from judgment of the late General Term of the second judicial district, affirming a judgment entered in Westchester county upon the report of a referee, dismissing plaintiff’s complaint. On the 30th November, 1808, Peter Florence died seized in fee of the premises described in complaint, leaving a widow and six children, and also leaving a last will and testament, containing a general power in trust to his executors to sell the real and personal estate.
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Appeal from judgment of the late General Term of the second judicial district, affirming a judgment entered in Westchester county upon the report of a referee, dismissing plaintiff’s complaint. On the 30th November, 1808, Peter Florence died seized in fee of the premises described in complaint, leaving a widow and six children, and also leaving a last will and testament, containing a general power in trust to his executors to sell the real and personal estate. Benjamin Florence, one of the sons of deceased, continued to reside on the premises, and had the use and control thereof. On the 13th…
1Opinion of the CourtRapallo, J.
To maintain an action for the partition of lands, the plaintiff must, at the time of the commencement of the action, have an actual or constructive possession, in common with the defendants, of the land Sought to be partitioned. Where the premises are held adversely, the party out of possession cannot try the question of his title in this form of action. A subsisting adverse possession, is an absolute bar to the action. It is intended for the partition of lands in the possession of part owners, and not for the recovery of the possession of premises held adversely.
This was the rule of the…
2Cases cited4 opinions
- Clapp v. BromaghamCourt for the Trial of Impeachments and Correction of Errors · 1827
- Jenkins v. Van SchaackNew York Court of Chancery · 1831
- Beebee v. . GriffingNew York Court of Appeals · 1856
- Burhans v. BurhansNew York Court of Chancery · 1847
3Cited by39 opinions
- Culver v. . RhodesNew York Court of Appeals · 1882
- Jordan v. . Van EppsNew York Court of Appeals · 1881
- Myers v. BartholomewNew York Court of Appeals · 1998
- Sweetland v. . BuellNew York Court of Appeals · 1900
- Hill v. YoungWashington Supreme Court · 1893
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