51 N.Y.S. 937 | N.Y. App. Div. | 1898
This action is in ejectment to recover a lot of land situate at Williamsbridge, formerly in the county of Westchester, now in that of New York. The answer denies the plaintiff’s title, and sets up as 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 adverse to the plaintiff’s grantor, and also that such adverse possession had been held by the defendants and their grantors for upward of 20 years prior to the commencement of the action. The evidence on the trial showed that Duncan 8. 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 H. F. Heustis and Emory J. Heustis.. William was born September 13, 1855, and Emory in June, 1858. Emory J. Heustis died April 4, 1884, intestate as to his realty, leaving-his father, Gilbert Heustis, and his brother, William, his only heirs at law. On October 24, 1893, Gilbert Heustis conveyed to William his interest in the lot. On November 2, 1893, William Heustis 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 50’s, 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 factory. Work was stopped in the factory in 1860, but Briggs continued in possession of the premises until his conveyance to the original defendant, August Biedinger. In February, 1862, the lot was sold for unpaid taxes by the county treasurer of Westchester county, to Briggs, for the term of 1,000 years. A conveyance was executed by the county treasurer on this sale on February 11, 1863, which was recorded on the same day in the register’s office of the county. In July, 1865, Peter Briggs, Jr., executed the following conveyance of the lot in dispute:
“Know all men by these presents, that I, Peter Briggs, Jr., of the town and county of Westchestei), and state of New York, for and in consideration of the sum of one dollar to me in hand paid by August T. Biedinger, of the city and county of New York, do hereby assign, transfer, and set over unto the said Au*939 gust T. Riedinger, 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 lease made and executed by Gilbert S. Lyon, county treasurer of the county of Westchester, to Peter Briggs, ,Tr., dated February 11, 1803, and recorded in the office of the register of the county of Westchester, in Liber 491 of Deeds, page 158, &c., February 11, 1803, at 30 minutes past 12 o’clock p. m.
“In witness whereof, I have hereunto set my hand and seal, this 17th day of July, A. D. 1865. Peter Briggs, Jr. [L. S.]”
On July 28, 1865, Briggs and his wife, for consideration of $800, conveyed to August T. Biedinger, by warranty deed, the adjacent four lots to the west. Under these conveyances, Biedinger entered 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 were occupied by Riedinger as his homestead, the lot in dispute being cultivated and planted. There was also evidence given on the part of the defendants by a witness named Bedenberger, by which 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. In rebuttal, the plaintiff gave proof of admissions by Biedinger to the effect that he held the disputed lot under a lease, and also testimony given by him in proceedings taken by the city of New York to condemn the water rights of riparian owners in the Bronx river, to substantially the same effect. The first trial of this action was had during Biedinger’s lifetime. On that trial he denied making the admissions or giving the testimony ascribed to him. On this trial the case was sent to the jury on two questions,—that of adverse possession, and that of the conveyance from Fowler to Briggs; and the second question the jury was directed to answer specifically. The jury rendered a general verdict for the defendants, and answered in the affirmative the question: “Did Duncan S. Fowler, before July, 1865, make, execute, and deliver to Peter Briggs a deed, conveying to him lot ‘145 A’ ?” From the judgment entered on that verdict, this appeal is taken.
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 barrier on one side, the other sides being inclosed, is enough under the statute. 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
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 N. Y. 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. Biedinger 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 N. Y. 646, 23 N. E. 994. 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 Biedinger. 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. Blake, 38 Ill. 367. “As other modes of conveyance operate equally as grants, any words showing the intention of the parties to convey would be sufficient.” 4 Kent, Comm. 492. See, also, Wilhelm v. Wilken, 149 N. Y. 447, 44 N. E. 82. Now, while the
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 Biedinger 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 are 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
If there was no adverse possession by Briggs, then the charge of the court, to which the plaintiff excepted, that 20 years’ adverse possession by the defendants or their predecessor, under a claim of ownership for over 20 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 N. Y. 503, 49 N. E. 61. 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 nlaintiff’s grantor, rendered the deed to the plaintiff void. 1 Rev. St. p. 739, § 147; Pearce v. Moore, 114 N. Y. 256, 21 N. E. 419. 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 defendant’s occupation of the premises was sufficient notice to the plaintiff of all the former’s rights. Phelan v. Brady, 119 N. Y. 587, 23 N. E. 1109. As the jury has specifically found that this conveyance was made, the finding, if properly made, cures any error that may have been committed in the disposition of the defense of adverse possession. A disinterested witness testified to the execution and delivery of this deed. Criticisms are made as to the improbability of his story, but those criticisms were for the jury; and we cannot say that, as matter of law, the story was incredible or so improbable as to justify us in interfering with the verdict. The question then occurs as to the sufficiency of the testimony to establish the lost deed. The witness testified to a deed being brought to him by Fowler and Briggs; that the name of Fowler was subscribed to it; that it was a deed of the lot in suit; and that it was delivered to the witness. The witness did not know Fowler’s signature, but the fact that Fowler was present when the deed was brought was sufficient to warrant the presumption that the signature was genuine. Further, he testified that the deed was acknowledged before Adee, a justice of the peace, whose signature he knew. It is objected that the witness’ statement as to the contents of the deed was not sufficient; that he did not state the date nor consideraron, nor whether it was for a term of years, or in fee. The date and consideration are immaterial. It is true that, technically, a conveyance in fee is not necessary to constitute a deed. At common law a deed is “a writing sealed and delivered by the parties,” but, in ordinary language, the term is used in a much more limited and restricted sense, as a conveyance of the fee of land. Neither a mortgage nor a lease under seal is usually spoken of as a “deed.”
Judgment and order affirmed, with costs. All concur.'