60 N.Y.S. 389 | N.Y. App. Div. | 1899
While it is probable that the title of the purchaser under the decree in this foreclosure suit may never be assailed, we cannot say that this is so certain or that the title offered to her is so free from doubt as to justify a court in compelling her to •carry out her purchase. This case is very similar to that of Gorman v. Gorman, decided by this court (40 App. Div. 225; affd. by the Court of Appeals on opinion below), in which we declined to compel a purchaser to 'take title where that title, “if questioned hereafter, could be established only by resort to parol evidence, and parol evidence which it might be exceedingly difficult for the appellants to procure.” The premises sold under the decree-were part of a tract of •woodland or uncultivated land owned by John Ryerson, who, in August, 1821, conveyed the same to Gideon Tooker. This deed is on record, and no conveyance of the premises by Tooker can be found. Tooker died in 1852. In October, 1822, one Theodorus Kolyer assumed to convey a part of the tract, which did not include the lot sold in this action, to the Brooklyn, etc., Turnpike •Company, the description in the conveyance giving one of the boundaries as other lands of Kolyer. To this conveyance Tooker was a subscribing witness. Kolyer died in 1827 without having made other conveyances than that recited. In 1845 the premises were sold for taxes fora term of 9,000 years. In the years 1852 and 1853 the title of the tax purchaser was acquired by William Radde, Jacob H. Sackman and James L. Williams, who subsequently made partition of the property between themselves. In 1884, one Larder being in the occupation of the premises acquired the title of some of the heirs of Kolyer and instituted a partition suit, to which the heirs or devisees of Tooker were not parties. In that partition suit the tax sale above referred to was held void. The title of the mortgagor in this foreclosure suit and that «offered to.the purchaser is founded upon a sale under the decree in the partition action. There was no proof of any actual occupation such as is requisite to found an adverse possession until the year 1882 It is said that Kolyer in his lifetime permitted on one occasion the turnpike company to dig gravel on the land and another party to dig a spring; but these casual acts, even if done by Kolyer bimseif, would under the decision in Miller v. L. I. R. R. Co. (71 N. Y. 380) be insufficient evidence of posessioneven to maintain a trespass suit against a-stranger. Assuming that Sackman and his associates, under the deeds to them, could assert an adverse claim of title, though these deeds were mere cmit-claims and the grantors possessed only of a term of years, still the proof fails to show actual occupation by these persons, and the decree in the partition suit having adjudged the title acquired by Sackman to be void, it is difficult to see how a purchaser under that decree can avail himself of the possession by Sackman if there had been any such. It may be that Tooker by becoming a subscribing witness to the deed from Kolyer to the turnpike company estopped himself from asserting title to the premises so conveyed, but the estoppel could not extend to the remaining lands. The difficulty here is that the first conveyance on which the title offered in this case can be rested is the sale in the partition suit in 1884, only fifteen years ago, and possession or occupation prior to that time is, to say the least, of too uncertain a character to enable us to assert that the title offered the purchaser is free from any reasonable chance of successful attack. The order appealed from should be affirmed, with ten dollars costs and disbursements. All concurred.
