Ryerss v. Wheeler
New York Supreme Court
This was an action of ejectment, tried at the Yates circuit, in December, 1838, before the Hon. Daniel Moseley, one of the circuit judges. The plaintiffs claimed to recover 109 acres of land situate in the town of Milo, in the county of Yates, under a devise in the last will and testament of Gozen Ryerss, of Richmond, in this state, bearing date 21st October, 1800, in these words: “ Item.
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This was an action of ejectment, tried at the Yates circuit, in December, 1838, before the Hon. Daniel Moseley, one of the circuit judges. The plaintiffs claimed to recover 109 acres of land situate in the town of Milo, in the county of Yates, under a devise in the last will and testament of Gozen Ryerss, of Richmond, in this state, bearing date 21st October, 1800, in these words: “ Item. I give and bequeath all my back lands, to my grand-children now living, and to those that yiay .(be) born hereafter, share and share alike in severalty, each to receive his or her share, as they respectively…
1Opinion of the Court
By the Court,
Cowen, J.
I can hardly think the judge, in granting the motion for a nonsuit, laid any considerable stress upon the supposed variance between the proof and the sixth count. Whether the plaintiffs had made title in severalty, or in common, the judge had a right to disregard the variance in his discretion, and probably would have done so, though I admit this lay in his discretion. Holmes v. Seely, 17 Wendell, 75, 79, 80. Weed v. The Saratoga and Schenectady R. R. Co., 19 Wendell, 541, 2. Under the peculiar circumstances of this case, the plaintiffs may, *150If they shall be so advised,…
2Cases cited4 opinions
- Fish v. Hubbard's AdministratorsNew York Supreme Court · 1839
- Holmes v. SeelyNew York Supreme Court · 1837
- Jackson ex dem. Lowell v. ParkhurstNew York Supreme Court · 1830
- Weed & Weed v. Saratoga & Schenectady RailroadNew York Supreme Court · 1838
3Cited by15 opinions
- Messer v. OestreichWisconsin Supreme Court · 1881
- Waring v. . AyresNew York Court of Appeals · 1869
- Doe ex dem. Hughes v. WilkinsonSupreme Court of Alabama · 1860
- Morgan v. BurrowsWisconsin Supreme Court · 1878
- Hanner v. MoultonUnited States Circuit Court · 1885
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