87 N.Y. 348 | NY | 1882
This appeal would rest upon a sound basis if the facts fitted the foundation. The action was brought for a partition of real estate, in which, it was alleged, the appellant was *350
interested as a tenant in common. As to a small part of the farm sought to be divided, she pleaded, in bar of the right of action, a hostile title and actual adverse possession. The defense was good if proved to be true. At the time of the trial the rule had been settled in this court, that partition could not be enforced where ejectment was the appropriate remedy; that it was possible to transform a subsisting tenancy in common into an adverse and hostile possession; and that where there had been an ouster of co-tenants, and an exclusive and hostile possession actually taken, which denied the common right and planted itself upon a several and individual ownership, an action of partition could not be maintained until the question of title was settled at law. (Florence v. Hopkins,
The farm of over one hundred acres, through the center of which ran the narrow strip or gore in dispute, was owned by Samuel Hollenbeck in his life-time, who bought it in two parcels of separate grantors, but occupied it as one farm, the buildings standing upon what is now called the gore. His occupation was of the entire farm, as owner, and his undisputed possession covered the premises here in question. By his will he devised to his widow, Tamar Hollenbeck, a life estate in *351
the whole farm, except two small parcels, with remainder over upon her death to his three daughters, Sally, Elizabeth and Mary Catherine. Upon his decease the rights of the parties as fixed by the will were modified by a conveyance to his three other children, Alpha, Francis and Amy, of about seven acres to each, but the remainder of the farm, including the alleged gore, was in no respect affected or the ownership of it under the will modified or changed. The widow entered into possession as tenant for life, occupying the house and the farm as such tenant, her daughter, Mary Catherine, living with her, and continued such occupation for more than twenty years. During this entire period her possession was that of a life tenant, and under the will of her testator. It is true that she claimed, on several occasions, that there was a surplus of land in the farm not covered by the original deeds and which, after the expiration of twenty years, she said had become hers, but until her subsequent deed to her daughter such surplus was never identified or located, and at no time separated in any manner from the rest of the farm, or occupied in any different way. Previous to the deed referred to there was no act of hers which denied or questioned the title of her co-tenants, and no occupation which could possibly be deemed hostile or adverse. The judgment, in the action brought against her by her co-tenants for waste, just before the conveyance to Mary Catherine, is conclusive upon this point, at least. (Cook
v. Travis,
But on the 3d of May, 1870, while the action for waste was pending, the widow conveyed to Mary Catherine the gore in dispute by a deed without warranty and for a nominal consideration, *352
and which deed at a later date was duly recorded in the proper office. The grantee accepted the deed, but did nothing more. No change in the possession or occupation took place. No notice of a hostile claim, either by word or act, was given to the co-tenants after the conveyance. The grantee was herself a witness, and is able to say no more than that, from the receipt of the deed, she had been in the possession all the time as owner, and had occupied the premises under the deed. And the referee, instead of finding an actual adverse possession, or an assertion of the entire title, finds only that the grantee occupied, and "claiming to hold the premises adversely under the deed." It is very certain, therefore, that she relied wholly upon the effect of the deed to characterize her occupation, and for that reason alone claimed it to be adverse. So that nothing whatever existed in the conduct of either Tamar or Mary Catherine which by possibility could be construed into an act hostile to the right of the co-tenants, unless the mere giving and receiving of the deed constituted such an act. In every other respect the current of possession and occupation flowed in perfect harmony with the rights of the plaintiffs. It is argued that the grantee's possession, under the widow's deed, is necessarily adverse, and the head-note in Jackson v. Smith (13 Johns. 406) is cited as authority for the doctrine. Its language is: "Possession of land by a purchaser under a deed for the entire lot, given without right in the grantor, is adverse to the rightful owners, though tenants in common with the grantor." The case itself does not warrant this construction. On the contrary, the court expressly declared that what would constitute an adverse possession as against tenants in common was in no respect involved in the decision. The deed of Reuben described him as heir at law, purported to convey the entire fee, and a plainly exclusive and hostile possession followed it. We are also referred to Clapp
v. Bromagham (9 Cow. 530). But in that case the occupant not only entered claiming the whole property, but denied possession to his brother and sister as co-tenants, sold the farm to a stranger, took the entire proceeds of the *353
sale, and put his grantee into the exclusive possession. We have been referred to no case, and can find none, which justifies the effect claimed for this deed. On the contrary, the plain current of authority runs in the opposite direction. In Holley v.Hawley (
The judgment should be affirmed, with costs.
All concur.
Judgment affirmed.