45 N.Y.S. 560 | N.Y. App. Div. | 1897
This action was brought in July, 1895, to recover the possession of about thirty-six acres of land in lot 12 of Harison tract, in the town of Pierrepont, St. Lawrence county. The defendant in his answer-alleged that on December 28, 1873, Thomas L. Harison, one of the plaintiffs, with authority from all, executed and delivered to defendant an instrument dated that day, which is’set out in full. It states that the defendant “ may occupy the lot ” in question until the first day of June then next on certain conditions, and “if on said first day of June next, said Caswell shall pay not less than one hundred dollars on account of the price thereof, he shall have a contract for said lot on the usual terms running six years from April 1, 1873, at twenty dollars per acre, with interest from that date.” It was further alleged that defendant at once took possession under said instrument and before the 1st of June, 1874, elected to purchase the lands and paid to plaintiffs $100, and has ever since- claimed to be the owner and has performed all the conditions of the instrument to be by him performed. The occupancy by defendant was set up as a bar under the Statute of Limitations. For a second defense a counterclaim was alleged for moneys paid on the instrument of December 28, 1873, and for cost of improvements on the premises, and for moneys paid on acquiring a tax title upon a sale for taxes assessed prior to December, 1873. For a third defense, ownership was alleged under a deed from John M. Peck dated March 2, 1882, and a deed from the Comptroller to Peck on the 30th of June, 1879, based on a sale in September, 1871, for taxes. As a fourth defense the six-year Statute of .Limitations was set up, and as a fifth defense there was a general denial of all the allegations of the complaint. In the reply to the counterclaim the plaintiff admitted the execution and delivery of the paper of December 28, 1873, the possession by the defendant and his payment of $100 and, in substance, denied ail the other allegations.
It is claimed by the defendant that the plaintiffs failed to show title in -themselves of the property in question. It may be assumed that, under the issue presented by the general denial, the plaintiffs
It will be observed that upon the motion for a nonsuit at the -close of the plaintiffs’ evidence,, no ground, was suggested except that there was no évidence that the. plaintiffs ever had possession of the lands “ under the paper title shown,” This assumed, and we nnist assume, that the records and conveyances put in evidence- by the plaintiffs- did-upon their' face show title, in the jdain tiffs, and the plaintiffs in making up the casé on appeal had-the right to so
The objection taken on the motion for a nonsuit was not a good one, as the title shown came from the State. (N. Y. Central & H. R. R. R. Co. v. Brennan, 12 App. Div. 103; De Lancey v. Piepgras, 138 N. Y. 26.) A person who establishes a legal title to premises is presumed to have been possessed thereof within the time required by law. (Code Civ. Proc. § 368.)
Assuming then that plaintiffs made out a prima facie case, did the defendant show a defense? He did not show adverse possession for twenty years. His entry under the instrument of December 2,8, 1873, was not adverse to plaintiffs. (Babcock v. Utter, 1 Keyes, 397.) He never surrendered the possession which he acquired under that instrument. (Rhoades v. Freeman, 9 App. Div. 20.) The plaintiffs iii the reply admit that the defendant Peck called upon Thomas L. Harison, but they deny the allegations of the answer as to what then occurred and the proofs do not show it. If the defendant held adversely from the time he took the deed from Peck (as to which see O'Donnell v. McIntyre, 118 N. Y. 156), that deed, being given in 1882, would not sustain the defense.
Assuming that the defendant is in a position to get the benefit of a tax title, the question arises whether the Comptroller’s deed to Peck was valid, it not appearing that the grantee gave the six months’ notice to redeem required by section 68 of chapter 427 of 1855. The claim of the defendant is that-the direction of the verdict for defendant amounts to a finding that no one was in occupation at the expiration of two years from the sale, and that, therefore, there was no occasion to give the notice.
The sale, as stated in the Comptroller’s deed, was in September, 1871. It was shown on the part of the plaintiffs that one Perry was in possession in September, Í873, and that he was succeeded in the possession by the defendant. This was in substance the testimony of the witness Rafferty, and it was not contradicted by the defendant, although if not correct it might have been. The defend
The court, I think, erred in holding, in effect, that it was not necessary for the defendant to show the service of notice to redeem.
If the defendant be deemed in possession under the instrument of December 28, 1873, as under a contract of sale, he was in default and ejectment would lie. (Plet v. Willson, 134 N. Y. 139, 141; Pierce v. Tuttle, 53 Barb. 155.) Section 65 of chapter 427 of the Laws of 1855, as amended by chapter 448 of the Laws of 1885,. did not make the Comptroller’s deed evidence of service of the notice required to be served by the grantee under section 68 of the act of 1855. If the land was occupied the deed was not properly recorded .unless accompanied wdth the proof of the service of the . notice as required by the- act. (Laws of 1855, chap. 427, §§ 68-73; Turner v. Boyce, 11 Misc. Rep. 502.) In Ostrander v. Darling (127 N. Y. 79) the'premises were unoccupied.
We think the trial court erred in directing a verdict for the defendant.
All concurred.
Judgment and order reversed and. a new trial granted, costs to abide the event.