3 N.Y.S. 570 | N.Y. Sup. Ct. | 1888
The plaintiff’s right to recover the undivided twelfth which she inherited August 6, 1840, from her father, accrued, at the latest, July 3, 1849, when Mrg, Raynor went into possession of the land under her deed,.
October 16, 1885, Mary 0. Hargin “quitclaimed and released” her life-estate in the two-twelfths which descended from Julia and Charles to this plaintiff, who insists that her life-estate merged in the remainder, and that she has a present right to recover said two-twelfths. To this the defendant-makes several answers, among which are: (1) That defendant had acquired', title to the mother’s life-estate by adverse possession long before the date of her release or grant to the plaintiff; (2) that the instrument executed by the' mother to this plaintiff is a grant, and void under 1 Bev. St. p. 739, § 147,; which provides: “Sec. 147. Every grant of land shall be absolutely void if" at the time of the delivery thereof such lands shall be in the actual posses-* sion of a person claiming under a title adverse to that of the grantor. ”
Mary C. Hargin has been at all times since the deaths of Julia and Charles competent to sue for the recovery of her life-estate, and no exception has existed in her favor in the statutes of limitation. More than 20 years having elapsed between those deaths and her release or grant, her right to recover her life-estate from this defendant, which has occupied the land since September 3, 1859, under a grant, claiming to own it, was barred at the date of her release or grant to the plaintiff. This proposition the plaintiff’s counsel does-not, we think, dispute, but contends that by the release or grant the plaintiff acquired the same right of action that she would have acquired had her mother died at the date of the release or grant.
This brings us to the question whether this defendant had acquired title' by adverse possession to the mother’s life-estate at the date of her release or grant.
It is interesting and instructive to follow the history of the statutes of limitation since the statute of Merton, and trace the changes in the views of the courts and text writers upon the much-debated question, whether title can be acquired by adverse possession. Bracton, who is supposed to have written during the reign of Henry III., says that title maybe so acquired. 1 Bract. (Twist’s Ed.) 413, 414. Cruise, who wrote in about 1804, when the statute of 21 James I, was in force, says (volume 3, tit. 31, c. 2, §§ 1, 2,) that
This precise question has not been expressly determined by the court of appeals, but this court, following the expressions and assumptions of several reported cases, has held that title to real estate can be acquired by adverse ■possession. Birdsall v. Cary, 66 How. Pr. 358, 366; Eldridge v. City of Binghamton, 42 Hun, 202, 204.
Leaving the discussion of the difference between the statutes of limitation, under which the reported cases have arisen, to the court of last resort, ■which must ultimately decide this precise question, this court is constrained ■ by the precedents to hold that, under the statutes of limitation of this state, title may be acquired by adverse possession; and that, under this rule, the life-estate of Mary C. Hargin had vested in the defendant prior to her release ■or grant to this plaintiff. This defeats the plaintiff’s present right to recover any interest in, or part of, the land in dispute, and renders it unnecessary to ■consider whether the instrument executed by Mary 0. Hargin is a release, or .grant, and void by the section of the statute above quoted, known as the statute against champerty. Neither is it necessary to determine whether the defendant is a mortgagee in possession; nor is it necessary to discuss the ex■ceptions taken to the rulings upon the admission and rejection of evidence • bearing upon this question; for we have assumed that the foreclosure did not ■ divest the title of the owners of the equity of redemption. The judgment is ■ affirmed, with costs. All concur.