116 New York, 34. - 1889.
Ejectment. Plaintiff relies on a title acquired by adverse possession. Judgment for defendant. Plaintiff appeals.
Vann, J. - * * * Whether the portion north of the woods was protected by a substantial enclosure, and whether it has been usually cultivated or improved within the meaning of the statute, were questions of fact which the jury should have been permitted to pass upon. The defendant, however, contends that it does not appear that the plaintiff or his grantors ever claimed this strip of land, or any part of it. There is no evidence that any claim of title was made by word of mouth, but it appears that each grantee in taking possession of the farm, under his deed, entered upon, actually occupied and improved the land in controversy, or a part of it, although it was not included in his conveyance. This, if done in good faith, was enough to satisfy the statute. A claim of title may be made by acts alone, quite as effectively as by the most emphatic assertions. As was said by the chancellor, when speaking for the Court of Errors in La Frombois v. Smith, 8 Cow. 589, 603: "The actual possession and improvement of the premises, as owners are accustomed to possess and improve their estates, without any payment of rent, or recognition of title in another, or disavowal of title in himself, will, in the absence of all other evidence, be sufficient to raise a presumption of his entry and holding as absolute owner, and unless rebutted by other evidence, will establish the fact of a claim of title. Pos-session, accompanied by the usual acts of ownership, is presumed be adverse until shown to be subservient to the title of another.
We think that the refusal of the court to submit to the jury the question "whether the plaintiff had not had such adverse possession of the premises claimed in the complaint, lying north of the woods, as to give him title thereto," as requested by the counsel for plaintiff, was error, and calls for a reversal of the judgment.
119 New York, 646. - 1890.
Action to recover the possession of real estate. The city had leased the lands for twenty-five years on account of non-payment of taxes. The tax sale has been held void. Plaintiff seeks now to recover the land. Judgment for plaintiff. Defendant appeals.
Per curiam: It is undoubtedly true that for irregularities in the imposition of the taxes and in the proceedings leading to the tax sale the lease was void. But Matsell entered under the lease, and his right to hold under it does not appear ever to have been disputed. While under such a lease he was not estopped from disputing the title of the real owners, and while during the term he could have originated an adverse possession, yet he did not do so; and the lease, although void, was competent and persuasive evidence that he entered into and held possession of the land under the lease, and that he claimed no other title thereto. In order to establish title by adverse possession, it was incumbent upon the defendants to show that they and their grantors held the land adversely and in hostility to the true owner, claiming the entire title thereto. Hoyt. v. Dillon, 19 Barb. 644; St. Vincent Orphan Asylum v. City of Troy, 76 N. Y. 108; Gross v. Wellwood, 90 Id. 638; Sands v. Hughes, 53' Id. 287.
Possession of land is always presumed to be in subordination to the true title, and one who claims that it is in hostility to such title must give evidence showing that fact or from which the fact may properly be inferred.
Here the evidence and circumstances were ample to justify a finding that Matsell, Sr., never, during the time he possessed the land, claimed to own anything more than the estate which the lease purported to give him, and that the land was never possessed adversely and in hostility to the true owners prior to the 1st day of November, 1864. The quitclaim deed to Mickle was an appropriate instrument for the conveyance of Matsell's interest in the term, and the assignment at the same time of the lease, subject to the rents and covenants therein contained, authorizes, if it does not absolutely require, the inference that all that Matsell intended to convey was his term under the lease. The fact that he resumed possession of the premises in 1858, without, so far as it appears, any reconveyance to him, certainly is not conclusive evidence that he intended then to assert an absolute title to the land; but the inference is permissible and most probable that there was either an undisclosed reconveyance to him by Mickle or some arrangement between Mickle and him by which he was to resume his former title. It must be presumed, in the absence of other proof, that he occupied the premises then as he did before the conveyance to Mickle, and as Mickle did. He knew the existence of the lease and that he had no right to occupy the premises except by virtue thereof, and there can be no presumption that he intended without any title or right to acquire by simple possession the title to this land, and thus without a shadow of right deprive the true owners thereof.
If the adverse possession of these premises commenced at any time before the expiration of the lease from the city, the evidence authorized a finding that it commenced not earlier than the 1st day of November, 1864, when Matsell conveyed to his son. The defendants admit that at the time of the conveyance of the land to Charles Jones they claimed the adverse possession under that title, and, therefore, it was proper that this action should be commenced in the name of the grantors for the benefit of their grantee, under section 1051 of the Code.
The case of Sands v. Hughes, supra, is not an authority for the defendants. The case holds that a lessee under such a lease is not estopped from disputing the title of the supposed owner for whose default, in the payment of the taxes, the land was sold by the city, and that, during the term of such a lease, even if valid, an adverse possession may be originated which will ripen into a title within twenty years after the end of the term; and that if the lease is invalid an adverse possession may originate and commence to run at any time which will ripen into a title within twenty years from the time it originated. There the adverse possession under claim of title was found. But the difficulty with the case of the defendants here is that there is no evidence requiring or finding that Mickle or George W. Matsell ever originated an adverse possession or claimed an adverse title earlier than the 1st of November, 1864, and the defendants, therefore, faded at the trial, as they must fail here, on the ground that they did not establish the adverse possession upon which they seek to base their title. But for the lease the evidence was ample to show the adverse possession. But the existence of that, whether valid or invalid, and the entry thereunder characterizes the possession, and must properly dominate this case.