204 A.D. 628 | N.Y. App. Div. | 1923
This action was brought to quiet title, or as the trial court designates it, “ Suit in equity to determine claim to real property.” (117 Misc. Rep. 237.) In 1849 Michael Roberts comménced to acquire real estate in the now city of Buffalo. The search shows different conveyances to him, and some from him and his wife. It may be gathered from the descriptions available and from the briefs of counsel, that some of the lands so acquired were irregular in shape, and that some of the conveyances to and from others were for the purpose of squaring out the line of his property as nearly as could be. It further appears that he had accomplished that purpose by the year 1857, so that the lands remaining to him at that time were rectangular, or nearly so, in shape, and in one piece. Its southeast corner was at the junction of Abbott road and South Park avenue. Michael Roberts was married to Louisa Roberts and lived on the above-described lands and occupied a house and buildings situate on the eastern end or side of said lot of land facing South Park, avenue. They conducted a grocery store, saloon and feed store. As near as can be determined by the records
Adverse possession commenced to run in favor of plaintiffs’ testatrix before the heirs, defendants here, were born and continued until her death. (Becker v. Van Valkenburgh, 29 Barb. 319; Zapf v. Carter, 70 App. Div. 395.) Plaintiffs’ testatrix acquired her title to whatever of these lands that were conveyed to her by a deed from George Fix and wife some six months after Michael Roberts, her husband, had deeded to Fix. The record does not show what arrangement existed between Roberts and Fix; the deed from Fix to Louisa Roberts six months later suggests that whatever that arrangement was, it was later assumed by Louisa Roberts, plaintiffs’ testatrix, and it must be presumed that since that time she held the whole parcel under claim of color of title. Defendants never asserted any right to or interest in this property until the commencement of this action. The right to assert such claim existed in our laws since before the youngest child of Michael and Louisa
The judgment should be reversed, with costs. All findings of fact and conclusions of law holding or tending to hold that the title to the lands and premises in question is in the defendants are disapproved. There may be substituted in place thereof findings of fact and conclusions of law holding that the title was in Louisa Roberts Stamp at the time of her death by adverse possession, and as such passed to these plaintiffs under her will, in accordance with this opinion, the same to be presented to this court at its March, 1923, term.
H. T. Kellogg, Acting P. J., Van Kirk and Hinman, JJ., concur; Hasbrouck, J., dissents, ‘on the opinion of Sears, J., at Trial Term.
Judgment reversed on the law and facts, with costs, and judgment directed in favor of the plaintiffs as prayed for in the complaint.
The court disapproves of such portions of findings first, second, third, fourth and fifth as declare or find title or interest in the parties therein named.
And the court finds that at the time of her death Louisa Roberts Stamp was the owner and entitled to the possession of the premises described in the complaint; that the said Louisa Roberts Stamp was at all times, since November 26, 1857, to the time of her death, in undisturbed, peaceable and exclusive adverse possession of the .said premises in dispute, claiming the same under the deed to her from George Fix and wife, dated November 26, 1857; and, as a conclusion of law, that the plaintiffs are entitled to the relief demanded in the complaint, with costs.