75 N.Y.S. 197 | N.Y. App. Div. | 1902
Chauncey B. Ashley died intestate in the city of Oswego in 1876, leaving him surviving his widow and no children, but a brother and two sisters his only heirs at law.' In 1871 he acquired by purchase the premises described in the complaint, and owned the same undisputedly at the time of his death. After his death his widow continued to occupy of lease the same to tenants, who attorned solely to her until her death, which occurred December 31, 1895. At the time of the death of Chauncey Ashley there was a mortgage covering the premises upon which there was then unpaid the sum of $450, and this lien was paid off and discharged by the widow in 1877. During her occupancy the widow paid the taxes, repaired the house on the lot, kept up the insurance, received the rents and claimed to strangers she was the owner thereof and endeavored to sell the same although there is no evidence that she gave any notice to the heirs at law, who were known to her and lived only a short distance from her that she was claiming title adversely to them. During this period the net rents received apparently exceeded considerably all the expenses she incurred in managing and repairing the property.
In 1863 the defendant, then a young girl of seven years, became a member of the family of Mr. and Mrs. Asliley, assuming their name, and continued thereafter to be treated as their daughter, and that was the ostensible relation at the time of the death of Mr. Ashley. She was married in 1878, and was then living with her foster
• If Mrs. Spalisbury and the defendant had been strangers in title to the heirs at law of Mr. Ashley, unquestionably the acts •of these occupants, although founded on no muniment of title, were ample to ripen into ownership by open, notorious, adverse possession. (Code Civ. Proc. §§ 371, 372; Barnes v. Light, 116 N. Y. 34; Baker v. Oakwood, 123 id. 16; Lewis v. N. Y. & Harlem R. R. Co., 162 id. 202.) The rule does not obtain in its severity where the occupancy is by one tenant in common; yet, if that occupancy is open, notorious, visible and by acts unequivocally conveying to the cotenants the information that the one in possession is holding in defiance of their cotenancy instead of in subordination to it, that possession may be adverse and grow into a title by prescription. (Jackson v. Whitbeck, 6 Cow. 632; Van Dyck v. Van Beuren, 1 Caines, 84; Abrams v. Rhoner, 44 Hun,
The referee finds the facts upon which this maintenance of title is based but finds that there is no proof to show that it was in hostility to that of the heir at law. We think the presumption that she was occupying as a cotenant was overcome by the character of the possession'and the fact that none of the heirs at law made any claim of ownership even after the death of the widow.
What constitutes adverse possession must always depend upon the facts of each case. The general principles of law governing such an. occupancy have been long settled and are staple and uniform. The possession of a cotenant to become effective against his co-owners, must be more marked and more open than against a stranger and. of that character which is manifestly hostile to the
To give notice to these héirs at law that the possession was with the view of claiming title would have been superfluous, for they must have known it. Mor is there anything in the relationship between these heirs- at law and Mrs. Spalisbury which gives color to the suggestion that they were permitting her to ocupy these premises in this exclusive way, intending after her death to assert their title.' She was their sister-in-law, and shortly after the death of her first husband, their brother, she remarried. She was not penniless, and the inference seems reasonable that if they had expected to claim title to this property, they would have done so immediately upon the death of their brother. It may be that they knew of the existence of the mortgage -lien upon the property and concluded that their interest in excess of this incumbrance was inconsiderable, and did not care ever to be invested with the possession or actual ownership -of this property, and it is a noteworthy fact that after the death of Mrs. Spalisbury, when her foster daughter came into possession and assumed proprietorship of this property, and who was of no kin to these heirs at law, there was then no attempt on. their part to obtain possession..
The defendant, in seeking to fortify her title and buy peace by obtaining a quitclaim deed from one of the heirs at law of the deceased Ashley, did not estop herself from disputing the title derived from the heirs at law. (Greene v. Couse, 127 N. Y. 386.)
The course of the plaintiff in procuring the conveyances from
The judgment should be reversed and a new trial granted, with costs to the appellant to abide the event.
Adams, P. J., McLennan and Williams, JJ., concurred; His-cock, J., not sitting.
Interlocutory judgment reversed and new trial ordered before another referee, with costs to the appellant to abide the event.