30 A.D. 277 | N.Y. App. Div. | 1898
' This action Is in ejectment to recover a lot of land situate gt Williamsbridge, formerly in the county of Westchester, now in that of New York. The answer denies the plaintiff’s title, and sets up ás affirmative defenses that at the time of the grant to the plaintiff the premises were in the actual possession of the defendants, claiming title thereto adversely to the plaintiff’s grantor, and also that such adverse possession had been held by the defendants and their grantors for upwards of- twenty years prior to the commencement of the action. The evidence: on the trial showed that Duncan S. Fowler became the owner of the lot in dispute on July 18, 1856. Fowler died September 16, 1864, leaving a will by which he devised the remainder of his estate (which included this lot, if Fowler then ■ owned it) to his grandsons William IT. F. ITuesti's and Emory J. Huestis. William was born September 13, 1855, and Emory in June, 1858. Emory J. Huestis died April 4, 1884, intestate, as to his realty, leaving his father, Gilbert Huestis, and his brother William his only heirs at law. On October 24, 1893, Gilbert Huestis conveyed to William his interest in the lot. On November 2,1893, William Huestis conveyed the lot to the plaintiff. Thus the plaintiff established his record title to the premises.
The evidence on the part of the defendants-tended to show that in the latter part of the “fifties” one Peter Briggs, Jr., who was the owner of four adjoining lots to the west, was in- possession of the lot in dispute. All the lots abutted on the Bronx river, The four lots were inclosed as a single parcel, the Bronx bounding it on one side, the other -three' sides- being fenced. Briggs had a factory on the premises, though apparently the building -was, not on the disputed lot. The lot was used as a place for empty boxes and barrels that came from the factory, and also as a driveway to the
“ Know all men by these presents, that I, Peter Briggs, Jr., of the town and county of Westchester, and State of New York, for and in consideration of the sum of one dollar to me in hand paid by August T. Reidinger of the city and county of New York, do hereby assign, transfer and set over unto the said August T. Reidinger, and to his heirs and assigns forever, all my right, title and interest in and to a certain lot of land, described in a certain lea'se made and executed by Gilbert S. Lyon, county treasurer of the county of Westchester, to Peter Briggs, Jr., dated February 11, 1863, and recorded in the office of the register of the county of Westchester, in Liber 491 of Deeds, page 158, &c., February 11, 1863, at 30 minutes past 12 o’clock, p. m.
“ In witness whereof, I have hereunto set my hand ■ and seal this 17 day of July, A. D. 1865.
“PETER BRIGGS, Jr. [L. S.] ”
On July 28,1865, Briggs and his wife, for a consideration of $800, conveyed to August T. Riedinger, by warranty deed¿ the adjacent four lots to the west. Under th.ese conveyances Riedinger entei’ed into possession of the premises and remained in occupation of them until his death, which occurred subsequent to the commencement of this action. During that period the premises were inclosed in the same manner as they had been during the occupation of Briggs, that is to say, fences on three sides and the river on the fourth. The premises Avere occupied by Riedinger as his homestead, the lot in dispute being' cultivated and planted. There Avas also evidence given on the part of the defendants' by a Avitness named Bodenberger, by Avliich the defendants sought to prove that Duncan S. Fowler, between 1863 and 1865, conveyed the lot in controversy to Briggs by a deed which was not recorded and has since been lost.
We think there can be no question that' the occupation by the defendants and their predecessors in title, so far as its physical attributes are concerned, was sufficient to support adverse possession under the statute. It was not necessary that the property should be fenced on every side. A natural barrieron one side, the other sides being inclosed, is enough under the statute. (Trustees, etc., Town of East Hampton v. Kirk, 84 N. Y. 215 ; Jackson v. Halstead, 5 Cow. 216; Becker v. Van Valkenburgh, 29 Barb. 319.) Nor do we think there is any force in the point that there was no fence between the disputed lot and the other part of the defendants’ premises. The appellant relies on the authority of Doolittle v. Tice (41 Barb. 181). There is to be found in the opinion in that case,, in reference to the inclosure required'by the statute, the following sentence : It must be an inclosure of the lot alone, upon the lines claimed by the party, and not embracing premises adjoining, extending in part a great distance from the lines.” ' But this must be construed with reference to the subject-matter then before the court.' In that case the adjoining premises were neither the property of nor in the possession of the defendant, but belonged to and were occupied by a third person, and there was no fence or barrier between such lands and the lands claimed to be held adversely. It was held that it was insufficient, to constitute an adverse possession, that tire property should be inclosed in connection with adjoining lands of another owner. But that is a very different question from inclosing lands
The serious question, as to the sufficiency of the evidence to justify the submission of the defense of adverse possession to the jury, relates to the character of the title or claim of title under which the defendants and their predecessors occupied the disputed premises.' There is nothing to show under what claim Briggs originally entered upon this lot. In the absence of proof on the subject, it must be assumed that he entered in subordination to the legal title, which was in Fowler. (Hammond v. Zehner, 21 N. Y. 118; Stevens v. Hauser, 39 id. 304.) A witness who worked in the factory during' the time that Briggs maintained it testified : “ Briggs was in possession of that property from late in the fifties until Mr. Riedinger took possession. He claimed it.” This testimony is of a very indefinite character. . It is not stated when Briggs claimed the premises. If made after he received the tax lease, it may well be referred to his rights under that lease; and it is settled' by authority that a claim under a tax lease, for a term of years, is not adverse to the owner in fee, and will not, by lapse of time, create a valid title. (Bedell v. Shaw, 59 N. Y. 46 ; Doherty v. Matsell, 119 id. 646, fully reported in 2 Silv. 550.) We should, therefore, be inclined to the opinion that the possession of Briggs was not adverse to plaintiff’s predecessor in title.
We now come to the consideration of the conveyance from Briggs to Riedinger. We think it is a quitclaim deed. It does not purport to transfer merely Briggs’ interest under the lease, but all his right, title and interest whatever to the land, reference being made to the lease solely for the purpose of describing the land conveyed. The words “ assign, transfer and set over ” are sufficient to convey the lands described in a deed containing those words. (Fash v.
In connection with this branch of the case it is proper to notice certain exceptions taken by the plaintiff to the ruling of the trial court. As the plaintiff’s counsel has neither in his brief nor on the argument pressed any of these exceptions upon us, except the one to the refusal to direct a verdict in his favor, our notice may be brief. The testimony of the deceased Riedinger on the previous trial was, under section 830 of the Code of Civil Procedure, subject to any legal objections that might be taken. I cannot find that any of the questions objected to were answered; at least there is nothing in the record before us to show that fact. There is in the testimony, which is in narrative form, statements of the"character of that objected to, but it does not appear that it was given in answer to the questions, nor was any motion made to strike the testimony out.
If there was-no adverse possession by Briggs, then the charge of the court, to which the plaintiff excepted, that twenty years’ adverse possession by the defendants or their predecessor under a claim of ownership for over twenty years would vest in them a good title, was erroneous, because the plaintiff’s grantor was an infant at the time that Riedinger entered. (Howell v. Leavitt, 95 N. Y. 617; Darrow v. Calkins, 154 id. 503.) But the error was harmless. The court instructed the jury that possession under the tax lease was not adverse. The adverse possession of the defendants, though it did not bar the title of the plaintiff’s grantor, rendered the deed to the plaintiff valid. (1 R. S. [2d ed.] 732, § 147 ; Pearce v. Moore, 114 N. Y. 256.) Nor can the question discussed (Crary v. Goodman, 22 N. Y. 170) be material here. Under the facts of this case, the defendants’ possession was either adverse for all purposes, or not adverse at all.
If the'evidence was sufficient to justify the jury in finding that the plaintiff’s predecessor in title (Duncan S. Fowler) conveyed the' lot to Briggs, then the plaintiff acquired no right to the premises in dispute, and the title was vested in the defendants. The fact that the deed was not recorded is immaterial, for the defendants’ occupation of the premises was sufficient notice to the plaintiff of
All concurred. ■
Judgment and order affirmed, with costs.