112 N.Y.S. 486 | N.Y. App. Div. | 1908
Lead Opinion
The appellant claims to be the owner of the premises and that the conveyances upon which the plaintiff claims title were made at a time when she was in the actual possession of said premises claiming under ah adverse title. Both the respondent and the appellant claim to derive their interest in said premises from the heirs of Bose Welcome, a former owner who died intestate. In 1892 Jane Lasher, Claude E. Welcome and Frances Helen Welcome were the owners of the premises as heirs of said Rose Welcome. In April,
It is conceded that Claude E. Welcome was a son of Rose Welcome and at one time was the owner of a third interest in the premises. He is named in the partition action as “Clody” Welcome, and the proof of service shows service upon “Clody” Welcome. The proof before the referee in that action showed that “Clody” Welcome was one of the children of Rose Welcome, deceased, and the report of the referee finds such to be the fact. From the similarity of the names “Clody” Welcome and Claude E. Welcome, and from the proceedings in the partition case, we must assume that Claude E. Welcome was also known as “Clody” Welcome, and that he was named,and served in the partition action under the latter name.
Criticism is made that the alleged affidavit of B. B. Mason showing service of the'summons and complaint on “Clody” Welcome is not sworn to, but this criticism is purely technical, for on the 22d day of May, 1897, the said B. B. Mason, who was the, attorney in the action, made an affidavit in due form, upon which, he applied for judgment, and in which he swears that the summons and complaint were duly served upon all the defendants as appears by.the affidavits
While the proceedings were irregular, for the purposes of this
The proof in the partition action showed that the property in question is a small village lot in the little hamlet of Clintonville, Clinton county, with a shop covering the whole frontage, or nearly so, on the street, and that the lot would be .of no value whatever except as a location for said shop. Elizabeth Elliott swears in this action : “ I occupy these premises now. The buildings on the premises are a blacksmith shop and a wheelwright shop; I occupy them both ; I have occupied and used the building as a blacksmith shop for over seventeen years. There is a garden on the premises; I work and keep the garden. In May, 1907, we plowed the ground and= planted it and used the shop.” This action was brought in June, 1907.
All parties interested in the title to real estate sought to be partitioned are necessary parties to the action, and a partition sale, therefore, purports to convey the entire fee in the property. The appellant did not purchase any interest from Frances Helen Welcome, or from any other of the heirs of Rose Welcome, but she purchased from an officer of the court the title in partition and is, therefore, presumed to have purchased and claimed the entire property. Her deed, therefore, was a title adverse to every party interested in the property at the time, and her nossession under the deed
The deeds to plaintiff are fairly within the letter and spirit of the; Champerty Act. The appellant had been many years in actual possession under a deed which purported to convey the whole title ^the plaintiff was present at the sale and knew the facts, and after-wards purchased from one party a one-third interest for one dollar,, and of another party a one-third interest for ten dollars. He has bought for a nominal consideration a claim to real estate from a. party out of possession, and promptly has brought action thereon. Within Pearee v. Moore (114 N. Y. 256); Christie v.. Gage (71 id. 189); Dever v. Hagerty (169 id. 481), and section 225 of chapter 547 of the Laws of 1896, the conveyance to the plaintiff was void. The trial court was not justified in disregarding the proceedings in the former partition action and the referee’s deed given therein, and was not justified in assuming that the deed given to Holcombe by F. Helena Welcome did not convey the interest which it is conceded Frances Helen Welcome inherited from her mother. The appellant is, therefore, the owner, so far as the plaintiff is concerned, of a two-thirds interest in the real estate sought to be partitioned ;'.the deed to the plaintiff of the other third from O’Brien is invalid for the-reasons before stated. The judgment should, therefore, be reversed and a new trial granted, with costs to the appellant to abide the event.
All concurred, except Cochrane, J., dissenting in part in memorandum.
Dissenting Opinion
We are dealing .with the undivided. shares of three tenants in common who are children and the only surviving heirs of Rose Welcome, deceased, the common ancestor. Giving to the former partition action all,.the effect which is claimed for it; it was insufficient to extinguish the,title of Jane Lasher, one of said thrée tenants in common, for the reason that she had conveyed her interest in the property by a deed recorded- before the institution of such partition action and the grantee was not made a party thereto. Plaintiff has confessedly - acquired the record title of said Jane Lasher.
But it is said that such record title is void for champerty. Plain
But to go still further I find no evidence in this case that appellant ever claimed title adversely to plaintiff’s grantors. The Champerty Act (Real Prop. Law, § 225) is : “A grant of real property is absolutely void if at the time of the delivery thereof ■such property is in the actual possession of a person claiming under a title adverse to that of the grantor.” Under this statute two independent facts are necessary to vitiate a. deed, first, actual possession of the property, and second, a claim of title adverse to the grantor. Assuming that appellant was in possession of the property it by no means follows that she- claimed such possession under an adverse title. The referee’s deed in the partition action did not on its face purport to convey the entire title of the property but only the interests of certain specified parties not including the grantee of. Jane Lasher, who at that time owned her interest. Such form of the deed was in conformity with statutory requirement. (Code Civ. Proc. § 1244.) The purchaser under the partition sale, one Tindale, remained the owner from 1897 to 1902, when he conveyed his interest to the appellant. The title of plaintiff’s grantor was a matter of record, and both Tindale and appellant must be assumed to have known that they had only the interest of a tenant in common and there is no pretense that either ever claimed otherwise. There is no evidence that either ever disputed the title of plaintiff’s grantor, their cotenant. As tenants in common it should be presumed that each recognized the rights of the other, and claimed only such rights as belonged to each under their respective deeds. The possession of one of several tenants in common should be deemed the possession of all in accordance with their common interests rather than
“ Although one tenant in common grants to a third party the joint premises, by a deed conveying his whole interest and thereby enabling the grantee to lay the foundation for an adverse possession, yet the mere fact that the grantee takes possession under the deed is not of itself sufficient to begin an adverse possession such as will oust his cotenant. Before that can be begun there must be notice in fact to the cotenant that the adverse claim is made, or there must be such open and public acts by the adverse claimant as will make his possession so visible, hostile, exclusive and notorious that notice on the part of the cotenant of the claim adverse to his right may fairly be presumed. (Culver v. Rhodes, 87 N. Y. 348.)” (Hamershlag v. Duryea, 38 App. Div. 130.)
It 'has been held that the facts required by the Champerty Act to avoid a grant must be shown by plain and unequivocal proof and that every presumption is in favor of a possession in subordination to the title of a real owner. (Wickham v. Conklin, 8 Johns. 220 ; Jackson v. Sharp, 9 id. 163 ; Jackson ,v. Waters, 12 id. 365 Howard v. Howard, 17 Barb. 663.) This defense is tolerated and not encouraged for the reason that it has little application to modern conditions. (Thallhimer v. Brinckerhoff, 3 Cow. 644;
. I, therefore, think that the defense of champerty has not been, sustained: ...
Interlocutory judgment reversed on law and facts and new trial granted, with costs to appellant to abide event.
See 1 R. S. 739, § 147 ; .revised in Real Prop. Law (Laws of 1896, chap. 547), § 225.— [Rep.