Smith, William B.

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St. John's University School of Law

St. John's Law Review Volume 7 Number 1 Volume 7, December 1932, Number 1 Article 34 June 2014 Adverse Possession--Reduction in Time Required William B. Smith Follow this and additional works at: https://scholarship.law.stjohns.edu/lawreview Recommended Citation Smith, William B. (1932) "Adverse Possession--Reduction in Time Required," St. John's Law Review: Vol. 7 : No. 1 , Article 34. Available at: https://scholarship.law.stjohns.edu/lawreview/vol7/iss1/34 This Recent Development in New York Law is brought to you for free and open access by the Journals at St. John's Law Scholarship Repository. It has been accepted for inclusion in St. John's Law Review by an authorized editor of St. John's Law Scholarship Repository. For more information, please contact selbyc@stjohns.edu. CURRENT LEGISLATIONStates have increased twofold within four years.1 6Although some may urge that insufficient experience exists uponwhich to base aerial legislation, still the need to protect the public is sowell known that it forms a more than proper groundwork for laws inthis field. It was, of course, this need that promoted the instant law.Whether the desired end will be accomplished thereby rests with thefuture.FLORENCE S. HERMAN.ADVERSE POSSESSION-REDUCTION IN TIME REQUIRED.-In thelaws of New York for 1932, the legislature has seen fit to amend theCivil Practice Act in relation to adverse possession under a writteninstrument or judgment.' Section 37 now provides that "where theoccupant or those under whom he claims entered into the possessionof the premises under claim of title, exclusive of any other right,founding the claim upon a written instrument, as being a conveyanceof the premises in question, or upon the decree or judgment of acompetent court, and there has been a continued occupation and pos-session of the premises included in the instrument, decree, or judg-ment, or of some part thereof, for fifteen years, under the sameclaim, the premises so included are deemed to have been held ad-versely * * *." Section 262 allows a presumption in favor of theone possessing legal title but such presumption is deemed to have beenovercome when the premises have been held and possessed adverselyto the title for fifteen years before the commencement of the action.The adoption of the fifteen-year limit has been applied to sections34-5 and 36 also.It is quite evident from this legislation that a more or less radicalchange has been inaugurated in limiting to fifteen years action previ-ously allowed twenty. That this modification is the expression ofmore progressive views on this phase of the law can hardly be denied.The development of the law in this regard has been slow. In fact,the trend in the beginning was to increase instead of decrease theperiod in which to bring actions against one holding adversely.2 Theearliest legislation is to be found in the statute of 20 Henry 3rd, c. 9,in which an action could not be maintained if the person claimingadversely had so held from the reign of Henry 2d, which was aperiod of seventy years. In 1275, this period was increased to eightyyears by 3 Ed. 1st, c. 39, providing as it did "that the adverse pos-session barring the action was fixed from the time of Richard theFirst." 3 This was the duration of time for such actions until the" "Accidents in Civil Aeronautics," ibid. p. 34.GEN. LAWS OF N. Y. (1932) cc. 261-2-3-4-5.'DIGnY, HISTORY OF THE LAW OF REAL PROPERTY (5th ed. 1898).'WALSH, LAW OF REAL PROPERTY (2d ed. 1927).ST. JOHN'S LAW REVIEWfixed period of sixty years was established by the Statute 31 Henry8, c. 2. It was not until the Statute of Limitations, 21 James 1st, c.16 (1623) that twenty years was recognized as the limited period.And this was the New York limit up to the time of the modificationsin question. In England, however, the period of limitation has beentwelve years since 1879.4It is interesting to note that in England the statute provides thatadverse possession for the twelve years or more gives the possessortitle to the property.5 In New York such possession merely bars theoriginal owner from asserting his claim. 6 But whether the statutegives the adverse possessor title or not he becomes as completelyvested with the title in fee as he would upon a conveyance in dueform from the owner of record. 7The legislature of the state in reducing the time within whichthe true owner can set up his title aids in the more efficient settlementof conflicting rights. An individual who for fifteen years has heldadversely to the true owner, with all the necessary essentials of actual,open, exclusive, hostile and continuous possession, should then begiven priority over one who fails to exercise his rights during allthis period. To say that fifteen years is not sufficient time to allowthe rightful owner to assert his claim is to provide an extension oftime that is not only a retarding of the progressive tendencies of ourtimes but an encouragement to retain an indolent attitude in thevoicing of one's rights.WILLIAM B. SMITH.EQUITY OF REDEMPTION-RIGHT TO REDEEM WITHIN TENDAYS AFTER SALE IF PAWNBROKER IS HIMSELF THE PURCHASER.-To the oppressiveness, harshness and impracticability of many of thecommon law principles, courts of chancery owe an indebtedness fortheir existence. The granting of relief to the unjustly oppressed towhom the common law refused aid constitutes equity's aim.Perhaps the most noteworthy achievement of chancery concernsitself with mortgages. Dissatisfied with the common law rule thatforever lost to the mortgagor his property upon default, equityignored the law theory which interpreted a mortgage as a conditionalconveyance of title, made absolute by a failure to perform the con-dition.1 To equity, a forfeiture is to be avoided whenever it is pos-STAT. 37 and 38 VICT. c. 57.Supra note 2.'Baker v. Oakwood, 123 N. Y. 16, 25 N. E. 312 (1890).'Barnes v. Light, 116 N. Y. 34, 22 N. E. 441 (1889).'POMEROY, EQUITY JURISPRUDENCE (1881) §§162 and 1179; STORY'S CO-MENTARIES ON EQUITY JURISPRUDENCE (13th ed. 1886) §1004; JoNES, MORT-GAGES (8th ed. 1928) §§9 and 12.

Adverse Possession--Reduction in Time Required

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Adverse Possession--Reduction in Time Required

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