126 N.Y.S. 781 | N.Y. App. Div. | 1910
Lead Opinion
At the close of the evidence in this action in ejectment, the court directed a verdict for the defendant. ■ Plaintiff’s motion to vacate and set the verdict aside and for a new trial was subsequently granted, and from the order accordingly entered both parties appeal. The learned trial justice in his opinion says that he directed a verdict for the defendant subject to the opinion of the court, and he bases his action on the assumption that he erroneously excluded evidence offered by the plaintiff tending to avoid a deed to the defendant. It appears from the record that at the close of the evidence counsel for both parties aslced for the direction of a verdict, waiving the right to go to the jury upon any question of fact, and that the court thereupon said to the jury: “ Gentlemen of the jury, under the direction of the Court you will find a verdict for the defendant.” It further appears that the plaintiff, in rebuttal, recalled one of the grantors in the deed to which the court referred, and asked: “ Q. Will you tell us under what circumstances you saw the defendant, Mr. Cardwell ? By Mr. Honeyman: Objected to as not in rebuttal. By Mr. Schoonmaker: Our contention is that these deeds were obtained from Mrs. Adams and Mrs. Post by trickery, by false suggestions of fact, by false statements of fact, and by duress and undue influence brought to bear upon them, and were without adequate consideration. The Court: I shall exclude evidence as to inadequacy, not excluding any evidence that the deed is regularly and formally acknowledged. I understand there is no question about its regularity.” The plaintiff excepted and rested her case, but the court did not exclude evidence of fraud, duress or undue influence. The exceptions, however, present for our consideration the question as to whether the learned trial justice erred in making the disposition of these motions.
The action is brought by the plaintiff under the provisions of sec
It appears from evidence introduced by defendant that as early as 1877 said John Canning had been in the actual possession of the premises under tax leases for 10,000 years, and that such possession . had been continuous and uninterrupted by him and his grantee, the defendant, since that time. He testifies that he bought the lots at
There is no evidence showing- any title in Cogswell whén he conveyed or assumed to convey the property to Husted, and no evidence of possession or exercise of any act of ownership by either Cogswell, Husted, the heirs of the latter, or the plaintiff, at any time, with the exception of the conveyances in evidence.
The plaintiff must recover,- if at all, upon the strength of her own title, and not upon the weakness of defendant’s. The deed from Cogswell to Husted was admissible in evidence without proof of contemporaneous possession of the grantor, but it was not sufficient evidence to-establish title in the plaintiff’s grantors without showing subsequent possession by them or their deceased father, through whom they derived whatever rights -they had in the property. (Greenleaf v. Brooklyn, Flatbush & Coney Island R. R. Co., 132 N. Y. 408.) As was said by Mr. Justice Burr in Aubuchon v. New York, New Haven & Hartford R. R. Co., 137 App. Div. 834), a very similar case: . “ In an action of ejectment it is not enough to prove a paper title to the disputed premises, unless that title is traced back either to the sovereign or to some one admitted or proved to have been a common source of the title claimed by both plaintiff and defendant. In other cases, in addition to the paper title, possession must be proved in some one through whom plaintiff claims. * * * 6 Where a party is under the necessity of proving title, it is not enough to simply produce a deed ; he must show possession in the grantor, or possession accompanying the deed; without this he proves no title.’ ’■’ The plaintiff proved neither seizin nor possession within twenty years in herself, or in either of her predecessors in title, and was not entitled to recover. (Code Civ. Proc. § 365.)
There are two other views of this case, each leading to the . same
As these conclusion's require the reversal of the order it is unnecessary to consider' the other questions presented by the-defendant.
. The order setting aside the verdict -in favor of the defendant is ■reversed, and the judgment directed for the defendant affirmed.
Hirschberg, P. J., Woodward and Jenks, JJ., concurred; Thomas,. J., concurred in separate memorandum: .
Concurrence Opinion
(concurring):
In 1853 Cogswell conveyed the land to Husted, who died about 1859, leaving four children, one of whom, a son, thereafter died, whereby his interest vested in his three daughters, now Post and Adams, who in 1907, conveyed to Sheridan by deed, recorded January 25, 1907. He claims under such deed two-thirds of the land, and brings this action for possession thereof in the name of his grantors, alleging that the defendant is in possession, claiming under tax leases. The defendant, after certain admissions and denials, answers that under the' statutes the deed from Adams and Post is void, ■ “ having been made by ” them to Sheridan while “ defendant was in actual possession of said premises claiming under a title adverse to that of” such grantors, and that, as is the fact, since the action was begun Adams and Post conveyed to the defendant. For a separate defense defendant states that in 1884-John Canning duly obtained a tax lease from the county treasurer for 10,000 years of a portion of the premises, and entered into pos- . session, and that after “ divers conveyance, and in or about the year 1898, title to said premises became vested in said defendant, who entered into possession thereof and has continued in possession ever since and that about the month of October, 1887, Mrs. John Canning obtained a similar lease of a ¡portion of the premises, and that she entered into possession, and that after divers conveyance the title vested in, the defendant and that he entered into possession and continues it. The defendant further alleges that the plaintiff or any of her predecessors have not been possessed of the premises within twenty years last passed before the commencement of the action, and that the defendant and his grantors have been in undisturbed possession thereof, claiming .absolute title to and right to possession of said lands, and such possession has been open, visible, continuous, unbroken and adverse for more than twenty years prior to the commencement of the action. As I understand his position, defendant contends (1) that plaintiff cannot sué in her grantors’ names as their deeds were delivered in violation of the statute and are void, as he was in possession under an adverse title; (2) that the plaintiff has not shown title in Cogswell or possession by him or his successors at any time,, much less within twenty years; (3) that defendant has the right to possession under tax leases
It is necessary to scrutinize the defendant’s holding. The.answer states that he had two leases received by Canning or Mrs. Canning from the county treasurer in 1884 or 1887. Canning’s evidence shows that lie-bought the lots a number of. times before he received a tax lease. He thinks he was in possession before lie received the leases. He did what he did do in the way of cultivating, fencing, building and as he says, the leases “ ought to show how long I have had them.” He. was asked what right he had to move on the place and he answered : “ The right was I had a tax claim on it. I' had a lease, tax lease. - I don’t mean these two1 leases here that I sold to •Mr. Cardwell. I had others; I had other tax leases.” A study of his further examination shows that he had no knowledge of actual leases except the two of 1884 or 1887, and he sold to the defendant by assigning these -leases. They were then the basis of his holding. The defendant took possession in 1900. Canning says: “ I knew I had a tax title to it, and I sold it; that was enough for me.” How,, then, can it be urged that Canning had title by&d'verse possession ; that he was holding adversely to the plaintiff and predecessors and also to the source of his tax title. Is it not plain that there is no title by adverse possession even claimed by Canning ? The defendant hashad possession only since 1900. So he makes no title by adverse possession. But Canning held under the tax leases executed by the county treasurer, who carved from the estate of some persons taxed, this leasehold, as the statute enabled. him to do. Both tax deeds show that such persons were the “ heirs of Lawrence- V. Husted,” as do the assignments. So defendant and Sheridan (virtual plaintiff) have title from the same person, and defendant’s leasehold is carved out of the heirs’ fee, and defendant asserts a
The order setting- aside the verdict should be reversed and the judgment reinstated, and the order denying plaintiff’s. motion for judgment should be affirmed.
Order setting aside verdict and directing a new trial reversed, with costs, and order denying plaintiff’s motion for judgment affirmed, with costs.