6 N.Y.S. 34 | N.Y. Sup. Ct. | 1889
This is a proceeding to compel the determination of a claim to real estate. On April 3, 1855, Abiel Sloddard was the owner of the land in question. On that day he conveyed to one Weston an undivided quarter thereof by deed, which was duly recorded on the day of its execution. Weston gave back to Stoddard a purchase-money mortgage of $1,000, payable in one year, duly recorded on the same day, no part of which has been paid. Weston never went into actual possession. In May, 1857, Weston conveyed his interest by quitclaim to one Lee. Lee and Weston are dead, and the defendants are their heirs at law, and have never been in actual possession. The plaintiff’s title is as follows: On the 26th of April, 1856, Stoddard executed a mortgage on the whole premises to Henry Barnard to secure $3,000, which was duly recorded. This was foreclosed by advertisement, and the property bought in by Barnard, March 5, 1864. In 1869, Barnard entered into a contract to sell plaintiff these premises. He died in November, 1873, and his heirs, in pursuance of the contract, conveyed the premises to plaintiff, June 23, 1883. She paid Barnard and his heirs therefor about $8,000, and since the conveyance she has been in exclusive occupation. The court held that plaintiff was entitled to judgment, and that the defendants and all persons claiming under them, after filing notice of pendency of action, be barred. The defendants appeal. When Stoddard mortgaged the property he owned only three-quarters undivided, and could convey no more. 1 Bev. St. marg. p. 739, § 143. 1-Ils conveyance was conclusive against subsequent purchasers, like Barnard, unless their deed was first recorded. Id. § 144. Indeed, by the terms of the mortgage, he conveyed only his “right, title, and interest.” Nor did the mortgage contain any covenant of title. Hone is implied. Id. marg. p. 739, § 140.
It is further found that in 1866 and 1867 Barnard leased a part of the premises, and his tenant occupied them, and that in 1868 he leased the whole, and that the same were inclosed by a substantial fence to keep in hogs and cattle. But the fencing the premises in did not fence the co-tenant out. It is also found that, since plaintiff’s contract, she has entered into and continued in actual possession; has usually improved the premises, and paid the taxes; and that some portion has been fenced by a substantial inclosure. Hone of these acts are inconsistent with the title which the plaintiff acquired of the co-tenant with the owners of the other undivided quarter. A farm that is substantially inclosed by a fence may be occupied by a co-tenant, and the fact that it is so fenced is not in the least an ouster of the co-tenant who is not in possession; nor is the leasing of a part or the paying of taxes. The co-tenant who is in possession ought, in justice to the other co-tenant, to pay the taxes, because he enjoys the rents or their equivalent; and, unless the rents or their equivalent exceed the taxes, there would be nothing for the co-tenant who is out of possession to receive. Inasmuch as one co-tenant has as much right to possession as the other, his mere possession is not hostile, but is the possession alike of himself and of his co-tenant. How, it is not to be disputed that a co-tenant in possession may, by certain acts, make his possession hostile and adverse to his co-tenant, so that in time the co-tenant out of possession, if he fail to assert his rights, will lose his title. But no such acts are shown here. Ho explicit notice of such adverse claim is shown to have been given to the defendants. Hor was the possession so visibly hostile and notorious, and so apparently exclusive and adverse, as to justify an inference of knowledge on their part. Culver v. Rhodes, 87 N. Y. 348. And we must here notice that the defendants were non-residents of the state, and therefore would not be likely to see what the plaintiff’s possession was. The case last cited gives a full statement of the doctrine, and we think it unnecessary to repeat .all the authorities there cited. The essence of the doctrine is that, when one goes into possession as a co-tenant, then, in order to render his possession adverse to his co-tenant, there must be an open assertion of exclusive title in himself, brought home to the knowledge of the co-tenant. Zeller's lessee v. Eckert, 4 How. 295. Until the co-tenant out of possession knows, or has reason to know, of this assertion of a hostile title, he may certainly rest in the belief that his co-tenant in possession is not doing him a wrong. Parker v. Proprietors, 3 Metc. 91.
It is not a question here about the redemption of land covered by a mortgage. The defendants have the title. If from lapse of time the mortgage is presumed to be paid, then their title is free from the incumbrance. If any portion still remains unpaid, that portion is owing to Stoddard or his assigns, and not, so far as appears, to this plaintiff; for the mortgage to Barnard did not transfer to him the mortgage of Weston to Stoddard. Even if there were any rents or profits to be applied on the mortgage, that can be done only in an action for an accounting. Hubbell v. Moulson, 53 N. Y. 225. At any rate, whatever may be the rights between th.'se defendants as owners of the one-quarter subject to the mortgage and Abiel Stoddard, mortgagee, or his assigns, this plaintiff is not concerned with those rights. When Stoddard mortgaged to Barnard, Stoddard could have acquired no title to Weston’s one-quarter by virtue of any possession. Even if he were mortgagee in possession, still he had no title. The title still remained in Weston. Trimm v. Marsh, 54 N. Y. 599, criticising Hubbell v. Sibley, 50 N. Y. 472. Therefore his mortgage to Barnard conveyed no title to Weston’s one-quarter, and this plaintiff’s title takes its origin in the mortgage to Barnard. She can gain nothing by subsequently acquired rights, if any, of Stoddard. The judgment should be reversed, and a new trial granted, costs to abide the event. All concur.