117 Misc. 237 | N.Y. Sup. Ct. | 1921
In 1857, the premises in question at the northwest comer of South Park avenue and the Abbott road in the city of Buffalo, together with an adjoining piece of property to the west, bounded on the south by the Abbott road, were owned by one Michael Roberts. In June of that year, by deeds to and from a third person, Michael Roberts caused the title to the piece of property adjoining the premises in dispute on the west but not the title to the premises in question, to be vested in Louisa, his wife. Upon the premises involved in this action there had been erected, previous to 1857, a two-story frame building, where Michael Roberts and his family lived, and where he conducted a feed and .grocery store and saloon or hotel. This building, with additions mentioned hereafter, is still standing. In 1862 Michael Roberts died, leaving his widow, Louisa, and three children, a son William Roberts who was the child of an earlier marriage, and is the father of the Roberts defendants, a daughter, Emma, who is the mother of the Hoover defendants, and a daughter, Louisa, who became the wife of the defendant Edward Smith.
At the time of the death of Michael Roberts, his
John Stamp, while living on the premises, made improvements to the building, erecting two additions at a cost in the aggregate of about $1,000, which were partly upon the premises in question and partly upon the adjoining premises which his wife, Louisa, owned, the building projecting over the westerly line of the premises involved in this action about ten feet.
The property in question and the adjoining property have always been assessed by the assessors as one parcel and were assessed to Michael Roberts until 1867, and after that, for many years, to John Stamp. They were formerly enclosed by fences and buildings. The taxes upon the premises in question, during the lifetime of Louisa, were always paid by her or her second husband, and large sums have been expended by her for local improvements, such as paving, sewers, etc. The insurance premiums from 1904 to the date
In 1898, John Stamp and his wife arid their children vacated the premises, going to live in another house in the same neighborhood, and from that time, as long as Louisa Stamp lived, the premises were rented by her at first for two hundred dollars a year, a little later for twenty dollars a month, and finally for thirty-eight dollars a month, and the rents were always paid to her. In 1900, John Stamp died. In 1893, Louisa Smith died, leaving a will, by the terms of which her real property was devised to her husband, the defend- ■ ant Edward Smith. In 1905, Emma Hoover died intestate, leaving the defendants Hoover as her heirs-at-law. William Eoberts died in 1911, leaving the Eoberts defendants as his heirs-at-law. In 1919, Louisa Stamp died, leaving a will, in which she devised her real estate to these plaintiffs as trustees, who, since Louisa 'Stamp’s death, have collected the rents. About eighteen months after the death of Louisa Stamp, this action was brought.
About 1898, the premises in question were rented to one of Louisa Stamp’s grandsons named Hoover, who paid rent to his grandmother. At one time Louisa Stamp received and refused an offer for the purchase of the premises, and stated the sum at which she was willing to sell it. At another time she talked of conveying the premises to one of her grandchildren. Throughout the life of Louisa Stamp, she was at all times on friendly terms with her children and grandchildren, and they visited her frequently, and all the descendants of Michael Eoberts except William Eoberts and his descendants, lived in the immediate vicinity, and William Eoberts from time to time came to 'Buffalo and saw his stepmother.
■The question presented by this action is whether
The authority in this state most favorable to the plaintiffs is Zapf v. Carter, 70 App. Div. 395. A similar occupancy by a dowress, with no more convincing evidence of a claim of title than occurs in this case, was there held to have ripened into a complete title valid against the heirs-at-law of her husband. Two points are to be noted, however, in respect to the case of Zapf v. Carter: (1) the persons against whom the widow was held to have acquired title by adverse possession were not her relatives, and no position of confidence on the part of the widow or of filial respect and duty on the part of the heirs-at-law existed to deter the dowress on the one hand from ousting the heirs-at-law, or the heirs-at-law on the other from demanding possession; and (2) the plaintiff in the Zapf case had been the executor of the widow and had learned of the outstanding title while he had been acting as such and had then purchased it for his own benefit, and Mr. Justice Spring, in the course of his opinion in that case, said: “ The course of the plaintiff in procuring the conveyances from the two sisters of Ashley does not require us to scan with too much minuteness the title of the defendant and her devisor. * * * The courts have uniformly condemned the acts by which an agent obtains title to property to undermine his principal, and this conduct of the plaintiff is reprehensible in the extreme, although the referee, by evidence which may be said to sustain it, has found he apprised the vendors he was buying the land for himself.”
In the instant case, the repairs and improvements were made by John Stamp and may well have been a consideration for his use of the property. The taxes
These considerations would be less strong in the case of Edward Smith, were he the sole record owner, but as his interest is but an undivided one, I am of the opinion that there was no change in the holding as to him any more than as to Emma Hoover and her heirs, or William Roberts and his heirs.
Judgment is, therefore, granted in favor of the defendants, with a single bill of costs to the defendants who have appeared.
Judgment for defendants.