199 A.D. 304 | N.Y. App. Div. | 1921
The plaintiff Harriet E. Ostrander is the wife of George N. Ostrander apd the defendant Stella Phelps Bell is the wife of Frank L. Bell; each is made a party on account of inchoate dower right interests. The State is properly made a party. (Code Civ. Proc. § 1594.)
The premises in question are lot 19, in the Oxbow Tract, Hamilton county, except fifty-six acres, the northwest corner of the lot, which it is conceded belongs to the State and is not affected by the judgment herein. When we speak of the premises as lot 19, we mean the lot (which contains two hundred and seventy-four acres) except the said fifty-six acres.
The court has found the facts as alleged in the complaint; that the plaintiff Ostrander and defendant Bell each owns an undivided half interest in the lot; that this lot was advertised for sale by the Comptroller at the 1877, 1881 and 1885 tax sales; at each sale, when lot 19 was reached, it was withdrawn from sale, no public bidding was permitted and no sale had; following each of these sales, however, the Comptroller executed and delivered to the State a conveyance in the usual form of a
In addition to denials the State has set forth in its answer three separate affirmative defenses: (1) The short Statute of Limitations under chapter 908 of the Laws of 1896 (Tax Law, § 132); (2) that the conveyances to Ostrander and Bell were champertous under section 260 of the Beal Property Law and section 2032 of the Penal Law; (3) title in the State by adverse possession. Each separate defense is based upon the aforementioned Comptroller’s deeds and possession in the Comptroller of the State following the publication, under section 13 of chapter 711 of the Laws of 1893, of the notice of possession in the Comptroller, which notice was published for three weeks commencing December 13, 1894, in a newspaper published in Hamilton county. No other possession in the People of the State is claimed.
Disregarding for the time being the affirmative defenses, the title of the defendant Bell, who acquired the half interest of Lelia E. Marsh in September, 1919, is not questioned. The defendant Ostrander acquired his title as follows: In 1848 the People of the State of New York granted lot 19 to James Mereness; after the death of James Mereness, on August 4, 1885, his executors conveyed the lot to Lelia E. Marsh and Hortense J. Ostrander. In November, 1885, Hortense J. Ostrander executed a deed to Bichard H. Pattinson, conveying certain lots in Hamilton county, “ or any other lands in Hamilton county,” and in December, 1887, George N. Ostrander acquired title by mesne conveyances to these lands so described. The plaintiff claims that this quoted expression included lot 19, inasmuch as the grantor at the time owned a half interest in the lot; but the defendant People of the State of New York claims that the description is too indefinite and is not sufficient to identify or include the lot. However, the plaintiff has title to the half interest of Hortense J. Ostrander in another manner. There was no conveyance by Hortense J. Ostrander of this lot other than by her deed to Bichard H. Pattinson. Hortense J. Ostrander died November 16, 1885, intestate and
There remain then for consideration the three affirmative defenses presented by the People of the State of New York.
Neither affirmative defense can be sustained without the aid of section 13 of chapter 711 of the Laws of 1893, now section 133 of the Tax Law, as follows: “ The Comptroller may advertise once a week, for at least three weeks successively, a list of the wild, vacant and forest lands to which the State holds title, from a tax sale or otherwise, in one or more newspapers to be selected by him, published in the county in which the lands are situated, and from and after the expiration of such time, all such'wild, vacant and forest lands are hereby declared to be and shall be deemed to be in the actual possession of the Comptroller, and such possession shall be deemed to continue until he has been dispossessed by the judgment of a court of competent jurisdiction.”
In the list of wild, vacant and forest land to be so published are those only “ to which the State holds title, from a tax sale or otherwise.” In this case the only title claimed by the State is under the Comptroller’s deeds. But these do not grant a title from a tax sale, since there was no tax sale of these lands preceding the deed. The expression used is, “ holds title,” not “ claims title; ” and means more than merely “ claims title.” It does not necessarily mean a perfect title, but must mean a title which is of some value, that is valid for some purposes; that is good until set aside or a better title is shown in another. We think it cannot mean a title which
The two defenses (champerty and adverse possession) may be further considered together. Section 260 of the Real Property Law (as amd. by Laws of 1909, chap. 481) provides: “ A grant of real property is absolutely void, unless the same shall be made to the People of the State of New York, if at the time of the delivery thereof, such property is in actual possession of a person claiming under a title adverse to that of the grantor; * * * .” The defense that the deeds to Ostrander and Bell are champertous and void must fail for two reasons: First. The State is not “ a person” within the meaning of the statute. (Saranac L. & T. Co. v. Roberts, 195 N. Y. 303, 323.) Second. In that case the court was discussing the Champerty Act (1 R. S. 739, § 147) which is now section 260 of the Real Property Law and possession for the State by the Forest Commission, and the State was claiming that the deeds to the plaintiff in that case were champertous and void because of the possession of the State under a title “ adverse to that of the grantor.” It had been held in People ex rel. Turner v. Kelsey (180 N. Y. 24, 26, 27)
Section 370 provides: “Adverse possession * * *; what constitutes it. For the purpose of constituting an adverse possession, by a person claiming a title, founded upon a written instrument, or a judgment or decree, land is deemed to have been possessed and occupied in either of the following cases:
“1. Where it has been usually cultivated or improved.
“ 2. Where it has been protected by a substantial inclosure.
“3. Where, although not inclosed, it has been used for the supply of fuel, or of fencing timber, either for the purposes of husbandry, or for the ordinary use of the occupant.”
When the People of the State of New York come into court
The State must show all of the facts which must be shown by an individual to establish title by adverse possession. In this case the State has not conformed to the requirements of the Code in this respect. There has never been an occupant of the premises on behalf of the State; there has been no “ continued occupation and possession ” of the lot on behalf of the State. The “ occupation and possession ” referred to in these provisions of the Code is an actual, not a presumed, or constructive, or fictitious occupation, not such a possession as is deemed under the publication of the Comptroller’s notice to be in him, which was, as above shown, only for particular purposes; indeed no “ occupation ” is declared in the statute. Nor has there been an open and notorious use of the premises, so open, hostile and exclusive as to be productive of ouster of another occupant as is required to establish an adverse possession. (Culver v. Rhodes, 87 N. Y. 348; Burbank v. Fay, 65 id. 57; Heller v. Cohen, 154 id. 299; Wiechers v. McCormick, 122 App. Div. 860.) An owner in actual or constructive possession of land may not be required to take notice of the running of the Statute of Limitations. (People ex rel. McGuinness v. Lewis, 127 App. Div. 107.) The plaintiff and the defendant Bell have established a legal title to the premises and are presumed to have been in possession thereunder.
Neither of these defenses can be maintained.
The other affirmative defense is the Statute of Limitations, under sections 131 and 132 of the Tax Law (Gen. Laws, chap. 24; Laws of 1896, chap. 908). These sections have been held to be both curative acts and Statutes of Limitations. We need not discuss them as curative acts; as such they relieve from irregularities only and the difficulty here is not an irregularity, and by a curative act the Legislature cannot transfer title from one person to another. (Wallace v. McEchron, 176 N. Y. 424; People v. Ladew, 189 id. 355; People v. Inman, 197 id. 209.)
This statute gives no right of action to the landowner by reason of the fact that the Comptroller failed to sell the land. Since the action against the State can only be prosecuted under the terms and conditions imposed by the statute and since this ground of complaint is not one of the grounds specified in the statute, the plaintiff and the defendant Bell, or their predecessors, have never had a right to their day in court, in which to assert and enforce such rights as they had in this lot. The statute, therefore, has not run against these parties. (Wallace v. McEchron, 176 N. Y. 424, 428, 429; Bryan v. McGurk, 200 id. 332.)
We are not inclined to hold that the Legislature can deprive an owner of his land by declaring that a void deed shall be conclusive evidence of its own validity, or of the title to those lands in the grantee in a void deed. When a deed is void, no record can increase its efficacy, nor do we think an act of the Legislature can. A Statute of Limitations will not
The judgment appealed from should be affirmed, with costs.
Present — John M. Kellogg, P. J., Woodward, Cochrane, H. T. Kellogg and Van Kirk, JJ.
Judgment unanimously affirmed, with costs.