| NY | Dec 1, 1891
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This case has already been before this court and is reported in the
The counsel is mistaken in his claim. The only point decided by this court on the former appeal was as to the effect of the attempted foreclosure by the administrator of Price against Waddell, the assignee in bankruptcy, wherein Waddell was made a party, but not in his official capacity. We held that in order to cut off his interest as assignee, it was indispensable that the suit should have been brought against him in his representative or official character, or that it should in some *175 way appear on the face of the proceedings that they related to or affected the bankrupt's estate. We held that the complaint and proceedings in that foreclosure suit did not comply with this rule, and as the plaintiffs claimed to have made title under that foreclosure suit, the judgment founded upon it could not be sustained.
The counsel for the plaintiffs asks us upon this hearing substantially to review and reverse our former determination upon this point, and he insists that the case as now presented differs in material respects from that which was presented before, and that upon those differences it should be held that the interest of Waddell, the assignee in bankruptcy, was cut off by the foreclosure suit in question. We fail to see that any material change has been made in the facts relative to this question from what they appeared upon the former appeal. It was assumed then, as it appears now, that upon the bankruptcy of Williams his title passed to Waddell, and that Waddell took and held in his official and representative capacity, having no private, individual or beneficial interest of any kind. Whether Waddell knew that the foreclosure in question related to land owned by his assignor, Williams, did not appear upon the former appeal, but that fact we held to be immaterial. We so regard it now. It does not now, any more than on the former appeal, appear on the face of the proceedings that they related to or affected the bankrupt's estate.
Our attention, however, is now called to the case of Wagner
v. Hodge, reported in 34 Hun, 524, and affirmed in this court, without an opinion, in
It is claimed by the learned counsel for the defendants that the circumstances under which Edward Price entered into possession of the premises in question, under the master's deed in the first foreclosure proceedings of Price v. Scudder, rendered his possession that of a mortgagee in possession and hence he did not inaugurate a possession adverse in its nature to the mortgagor or those claiming through him. He urges that the possession of Price being that of a mortgagee in possession, the mortgagor or his assignee had the right at any time within ten years of the entry of the mortgagee, to bring an action to redeem the property by paying the amount due on the mortgage, and that before the ten years elapsed Price, the mortgagee in possession, died. It is then urged that there is no evidence that the heirs at law of Price took possession, but that the evidence is uncontradicted that his administrator Coulter did take such possession, and that while in possession he commenced an action to foreclose this very mortgage, and the complaint in that action was an admission that the mortgage existed and was a lien upon the premises covered by it; and hence the period of possession by the administrator cannot be added to that of the mortgagee in possession, Price, in order to make out the necessary ten years for the limitation of an action on the part of the mortgagor or his assignee to redeem the premises from the lien of the mortgage by paying the amount due thereon. In this way the defendant claims to have shown that up to the time of the giving of the deed to Hutton in 1859, upon the sale under the second foreclosure, no adverse possession had in fact been maintained, and that it is only from the time when that deed was delivered, in January, 1859, or when the other deeds from the heirs of Price to Hutton, and from the referee in the partition proceedings to Hutton were delivered, which delivery was in April, 1859, that it can be said that the adverse possession on the part of Hutton really commenced. *177 And it is claimed that the finding of the referee that Hutton from 1859 down to the period of his death in 1884, remained in possession of the premises, claiming adversely to all interests, is without evidence, and the exception on that ground is well taken.
If it can be shown that there is any evidence to support the finding of the referee as to the adverse character of the possession of Hutton from 1859 to 1884, continuously under a claim of title, the judgment must be affirmed without considering the various questions which the counsel for the defendants has so ingeniously presented, arising out of the facts already detailed, and occurring between 1835 and 1859. The evidence upon the question of adverse possession since 1859 shows that Louis and Frank Surgent entered into possession and occupation of the premises in question in 1853, as tenants of Price, the then mortgagee in possession, and that they remained there until the death of Price in 1855 and subsequently to that time and until the spring of 1858, when Louis Surgent sold and transferred to Frank whatever interest he had in the premises. Whether between 1855 and 1858 the Surgents were tenants of the heirs of Price, or took under the administrator of Price it is unnecessary on this branch of the case to say; but at any rate Frank Surgent was in the occupancy of these premises at the time when Hutton took his deed in 1859, and from 1859 to 1865 Hutton was in possession of the premises (by this same Frank Surgent as tenant), and claiming to own the same in fee under the deeds above mentioned.
Frank Surgent testified distinctly that he did not pay any rent after his brother left, which was 1858, and that Mr. Hutton said it would not be necessary to pay any more rent; he was satisfied with the witness' occupation of the land. Upon the evidence in the case it cannot be disputed that Surgent up to the time that he left in 1865 recognized Hutton as his landlord and his occupation of the premises was under Hutton. Thus from 1859 up to 1865 there is beyond any question an adverse possession on the part of Hutton proved in this case and counsel for defendants concedes such to be the fact. *178 In 1865, while he was such tenant of Hutton, Surgent transferred his occupancy of the premises and all the rights that he had to one Bischoff, who paid him and who thereupon went into the occupancy of the land in the same way that Surgent had occupied it, which was as a vegetable garden. It may be assumed that Surgent was only a tenant at will, and it is at this point that the learned counsel for the defendants claims the adverse character of the holding of Hutton was determined, and he founds it upon the principle that a tenant at will cannot transfer any of his rights to an assignee or a transferee; that his tenancy is of such a nature that it necessarily ends the moment he makes a transfer and surrenders the occupancy and the person who comes in is a trespasser and does not hold under the former landlord. This is beyond question true, provided the landlord choose to so regard it; but here is the fact that Surgent assumed to transfer all the rights which he had, including the right of occupation, to Bischoff, who assumed to come in and occupy under the same title, and none other, that Surgent had. In other words, he assumed to come in as a tenant at will in place of Surgent, and his tenancy was recognized and acquiesced in by Hutton from the time he took such occupation of the premises.
It has never been held that the owner of property could not if he chose recognize the occupation of his property by another, who claimed to come in under an assignment by one who was himself nothing but a tenant at will. By the claim on the part of the assignee of the right of occupancy, simply by virtue of his assignment, and in no other way and by no other means, the recognition of such claim and its allowance by the owner would constitute such person a tenant at will the same as his predecessor. We think the evidence, therefore, is sufficient to show that the assignment by Surgent to Bischoff of his rights in the premises and the entry of Bischoff thereunder and the acquiescence in such entry by Hutton, constituted Bischoff the tenant of Hutton, and his occupation continued the possession of Hutton until such occupation ceased. *179
The evidence shows that Bischoff died about the year 1872 or 1873. The defendants claim this is another break in the possession by Hutton, and it is alleged that there is no proof of any further possession on the part of Hutton from that time on. The referee finds that after Bischoff's death his widow continued in possession of and cultivated the premises, holding them under Hutton until the defendant, Mary N. Townshend, took possession of the premises, the said widow Bischoff having meanwhile married one Greb. The referee found that the defendant, Mary N. Townshend, took possession of the premises on or about the 1st day of May, 1884, when the defendant, Francis G. Wieck, entered thereon as her tenant. This finding as to the tenancy by Mrs. Bischoff is also excepted to by the counsel for the defendants as wholly without evidence. The evidence is that Bischoff remained in occupation of the premises until he died, using the premises for the cultivation of vegetables and nothing else, and after he died his wife continued in occupation of the premises, and in the language of the witness, "ran it the same as her husband had done." She continued this for about a year and then married one Greb, and they continued to cultivate the land in the same way that Bischoff had done down to 1883 or 1884, when they left and Wieck, the florist, came on Under these circumstances we do not think that it can be said as matter of law that neither Mrs. Bischoff nor her husband Greb occupied the premises as tenants of Hutton. The land at that time was comparatively remote from the settled portion of the city. It was not built upon, and during the time of tenancy of Surgent, and up to the time of the death of Bischoff, it had been used as a market garden for the cultivation of vegetables, and in recognition of the paramount rights of Hutton. The continuance of the same kind of a tenancy by the widow of Bischoff might well be inferred from her continuing to occupy the land in the same way that her husband had done, and such an occupation under the circumstances would not necessarily be of such a character as the law denominates a trespass. *180
From all the facts, the referee or jury might find Mrs. Bischoff to have been a tenant and her rights subordinate to the paramount rights of Hutton. And we think the same may be said in regard to the continuation of the tenancy after her remarriage. The evidence is that the occupation continued of the same nature as during Bischoff's life-time, and that the land was cultivated in the same manner and for the same purpose up to the time when Greb and his wife left the premises.
Considering the fact that Edward Price had been in possession of the premises from 1846 until his death, and that his heirs claimed to be in possession from the time of his death until the sale by the referee in the partition suit between such heirs, and that upon that sale Hutton became the purchaser and went into possession, claiming title in fee, and continued so confessedly until 1865, when these various tenants succeeded each other, as already stated, we cannot say as matter of law that there was no evidence to sustain the finding of the referee that Mrs. Bischoff, after her husband's death, continued as tenant of Hutton in occupation of the premises until she left in 1883 or 1884.
There is another fact which the defendant confidently relies upon as breaking the continuous character of the adverse possession on the part of Hutton. The referee finds that on the 10th of January, 1873, Mary N. Townshend, the defendant, received a deed from George Law and his wife, purporting to convey the premises in question, and she claims that Law had become the owner of the equity of redemption in the premises owned by Waddell, as assignee in bankruptcy of Williams. The referee also finds that in 1875, defendant Mary N. Townshend built a fence around the premises in question, and that her entry thereon for the purpose of building it was peaceable, but there was no proof that Hutton had any knowledge of it. This entry by the building of the fence is claimed by Mrs. Townshend to constitute a termination of the possession by Hutton, and the commencement of her own. Building a fence around a lot may, under some circumstances, constitute a taking of possession of such lot, but we cannot say that in *181 all conceivable circumstances such act does necessarily in law constitute such taking possession.
In this case, we have the fact testified to that from the time Hutton took his deeds of these premises, up to the time when Greb and his wife left them in 1883 or 1884, they were in the actual occupation of some one other than the defendant Townshend. In other words, it appears that Surgent occupied and cultivated the premises as Hutton's tenant until 1865; that Bischoff then went in and cultivated the premises in the same way and in the same character as Hutton's tenant, until his death in 1872 or 1873; that Mrs. Bischoff continued the occupation and cultivated the premises in the same way until she married Greb, and that she and Greb continued the occupation and cultivation of the premises until they left, as stated. The building of the fence does not appear to have interfered in any degree with the occupation of the premises, as they had been theretofore occupied, and there is no proof that by the building of the fence the slightest change in the actual possession of the premises was accomplished; and it does not appear that Hutton was even aware of the building of the fence. There is no proof that any of these tenants ever by the slightest act recognized defendant Townshend as the owner or in any way as an occupant of the premises. Now, under these circumstances, it was a question whether this act of the defendant was a mere entry upon the land in opposition to the occupants and not recognized by them, or whether it amounted to a taking possession thereof. It may be conceded that anything which amounts to an actual taking possession of property, a substantial assertion of right accompanied by the actual possession and occupation of the property, exclusive in its nature, would amount to the breaking of the adverse possession then running, and would render it necessary to commence it anew. But here, where the evidence shows that the occupation of the other party continued through this building of the fence and in spite of it, the same as it was before, and such occupation was by the same parties in the same way and for the same purpose during the whole time of the building *182 and for years after the destruction of the fence itself, we think that the mere building of the fence under these circumstances was not necessarily a legal, valid termination of the adverse possession on the part of Hutton then in process of maturing.
The case of Worssam v. Vandenbrande (17 Week. Rep. 53) is not opposed to these views. In that case the possession of the party claiming adversely was broken by the breaking down of a fence which had enclosed the premises, and by remaining on the land for three-quarters of an hour, and by erecting a post on the land with a notice affixed that anyone wanting a lease of the land should apply to the plaintiff. Three days afterwards the post and the notice disappeared, and some years after that the defendant (the above claimant) built on the land. It was held that a period had been put to the adverse possession. The decision was not placed on the mere fact of the breaking of the fence. The land had been and, at the time the fence was broken down, was unoccupied, and the further fact appeared that from the time of the destruction of the fence for five years no act on the land hostile to the title of the true owner occurred. The absence of any such hostile act was alluded to in the judgment as one of the grounds for showing interruption of the adverse possession. After the lapse of five years the defendant, the party who had erected the fence, built upon the land, and the question as put by the court was whether, upon these facts, there was a taking of possession of the premises by the true owner, as opposed to a mere entry. And it was held that, under these circumstances, it was a taking of possession.
In Bliss v. Johnson (
Assuming that the dispossession here commenced in 1859, the claim of the defendant is that it terminated in 1875 by the *183 erection of this fence. On the contrary, we think that, under the facts developed, the referee had the right to find that the erection of the fence by the defendant was a mere entry, and not a termination of the possession by Hutton. The referee makes this distinction in his findings, for he finds that the widow of Bischoff continued in possession and cultivated the premises, holding under Hutton until the defendant Mary N. Townshend took possession, which was on or about the 1st day of May, 1884, and he finds that the defendant made an entry upon the land in 1875, and enclosed it with a fence. Upon all the facts, it is clear that the referee drew an inference that the building of the fence constituted a mere entry, as distinguished from a taking of possession, and upon the facts, we think he was justified in so doing, and we cannot disturb his finding as founded upon no evidence.
Our examination of the case brings us to the conclusion that the finding of the referee that Hutton was in possession of the premises for more than twenty years from 1859, claiming adversely, etc., was based on some evidence, and we cannot in this court disturb it.
We have carefully considered the other questions argued in the brief of counsel for respondents, and we think they have been properly disposed of in the courts below.
The judgment should be affirmed, with costs.
All concur.
Judgment affirmed.