124 N.Y.S. 210 | N.Y. App. Div. | 1910
Lead Opinion
This is an ejectment action brought by the widow and heirs of. John B. Monnot, deceased, against one of the heirs and the grantee of the other heirs of Joseph Husson, deceased, and involves the-title to a triangular piece of four acres of land, surrounded, except along the highway, by a farm which has been in the possession of the Husson family since before 1874. On the 19th of March, 1874, a judgment was entered in an ejectment action brought by said Monnot against said Husson. Although the judgment roll in that action is of prime importance in determining the question presented on this appeal, instead of printing the judgment roll, the parties to the appeal contented themselves with a stipulation to the effect that, by the judgment, it was duly adjudged that the plaintiff in that action recover .of the defendant said property, i. e., said triangular piece, and the possession of the same and of every part thereof. We have no means of knowing upon what the plaintiff based his right to the possession of the property unless it tie the fact that, in this suit, it appears that the said Monnot acquired title by a deed to .him, made by a referee in partition in 1868.
It is not pi’etended that the said Joseph Husson had any record title to the premises in dispute. Said premises were situated close to Husson’s house and between it and the highway. There was a stable and carriage house upon it, and he kept his horses and car
The defendant claims title by adverse possession under sections 371 and 372 of the Code of Civil Procedure. The trial court submitted to the jury the question whether the defendant and her ancestor had been in actual continued occupation of the premises under a claim of title, exclusive of any other right, for more than twenty years, and whether the premises had been protected by a-substantial inclosure or had been usually cultivated or improved. The jury found for the defendant.
I shall assume that there was sufficient evidence to justify the jury in finding that the defendant and her ancestor have continuously occupied the premises in dispute for more than twenty years ; that the inclosure of the entire premises may be deemed an inclosure of the triangular piece, and that the use to which it was put may be deemed a cultivation or improvement within the meaning of the statute. The question is whether there was any evidence that such occupation was under a claim of title, exclusive of any other right.
There is no evidence in this record from which it can be found that the said entry or the continued occupation thereafter was adverse, except the bare fact of such entry and occupation. Stand-' ing alone, that would doubtless be sufficient to raise a presumption of adverse entry. (See Barnes v. Light, 116 N. Y. 34.) Does it raise such a presumption when coupled with the fact that a judgment had shortly befoi’e been rendered awarding possession to the record owner ?
While I do. not go so far as to say that express notice to them was necessary, I think that some act on Husson’s part should have been shown tó indicate the hostile character of his occupation- other than the mere fact of such occupation. The rights of the parties-had been settled by a judgment, executed by the sheriff. Unexplained, therefore, I think this re-entry should be deemed to be in
On the 5th of October, 1875, the premises were sold for taxes, Husson becoming the purchaser, and a tax lease for 1,000 years, under the special statute then applicable to Westchester county, was granted to him In February, 1876, the premises were redeemed from the sale by the attorneys who had represented Monnot in the ejectment suit. While it does not plainly appear, it may be inferred that Husson had re-entered prior to the purchase by him at the tax sale. If such entry was hostile, it was not necessarily changed by the subsequent acquisition of tax leases, for one in possession may acquire adverse titles without changing the character of his possession. However, no one but an owner could redeem, and if Husson accepted the money, paid on the redemption, that would doubtless have been a recognition of the owner’s title and would have characterized his possession as subordinate to it. But the only proof on that subject is the sales book of the town of Westchester, containing an entry showing that the sum of thirty-one dollars and seventy-five cents was paid to redeem from the previous sale. But from that it does not follow that that sum was accepted by Husson, However, the judgment must be reversed on the ground that the acts of occupancy shown, commencing within a short time after the judgment determining the rights of the parties, were not such, when considered in the light of that judgment, as to raise any presumption of an adverse holding.
McLaughlin, Glaeke and Dowling, JJ., concurred; Ingraham, P. J., dissented.
Dissenting Opinion
The prevailing opinion assumes that there was sufficient evidence to justify a finding that the defendant and her ancestors have continuously occupied the premises in dispute for more than twenty years and that the inclosure of the premises and the use to which they were put was a cultivation or improvement within the meaning of the statute. It is, however, proposed to reverse the judg- " ment because of the fact that the proof is not sufficient to.show that the entry of the defendant’s predecessors in title was adverse to that of the plaintiffs. With this conclusion I do not agree. The plaintiffs’ predecessor had obtained a judgment awarding him the possession of the property. Ejectment being a mere possessory action is- not necessarily an adjudication as to title. The defend; ant’s predecessor in title had appealed from the judgment when the plaintiffs’ ancestor committed suicide and his family sailed for France, where they have since remained. To prosecute that appeal it would be necessary to revive ■ the action, and it does not appear - that any personal representative of the deceased had been appointed in whose name the action could have been revived. ETor was there anybody in this country then claiming possession of the property to- whom the defendant’s predecessor who had claimed title arid had • conducted a litigation for years to establish his right to possession could give notice. Having claimed title, having at one time had a judgment in his favor, and having appealed from the judgment against him, all other claimants of the property having disappeared, he then, following out his claim in the litigation ' that he was entitled to. possession, took possession of the property and has maintained it ever since. ' The fact that the litigation that liad been carried on between the parties and that during that litigation the defendant’s predecessor had claimed title or the right to possession and had resisted the claim of the plaintiffs’ predecessor to such possession is certainly evidence of an adverse claim to the
I think, therefore, there was evidence to justify the finding of the jury and that this judgment should be affirmed.
Judgment and order reversed, new trial ordered, costs to appellants to abide event.