Sheridan v. Cardwell , 126 N.Y.S. 781 ( 1910 )

Rich, J.:

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 section 1501 of the Code of Civil Procedure, in the names of her grantors, for the alleged reason that the defendant was in possession of the premises and claiming title thereto. To establish her cause of action the plaintiff introduced in evidence : First, a deed from William T. Cogswell to Lawrence Y.-Husted describing the property set forth in the complaint, dated December 1, 1853 ; second, proved the death of - Lawrence V. Husted in 1859 or 1860 intestate, leaving three daughters and one son (the-latter of whom has since died unmarried, intestate and without surviving issue) third, quitclaim deeds from two of the surviving daughters of Lawrence Y. Husted, one dated October 15, 1907, the other November 2, 1907, purporting to convey the interest of the grantors in the property described in the complaint; fourth, a tax lease for 10,000 years from the county treasurer of Queens county to John Canning, defendant’s predecessor in interest, dated August TO, 1884, describ-' ing a portion of the premises involved; fifth, a tax lease for 10,000 yéars from the same county treasurer to said Canning of an additional portion of the involved premises, the two covering the whole thereof; sixth, deeds from Canning to defendant conveying'- all of his right, title and interest in and to the land described in such tax leases; seventh, assessment rolls of.the town of Jamaica, in which town the property in question was situate, for the years 1880 and 1884, tending to show the invalidity of the assessment of the land in question for those years because of its being assessed to “Husted; Lawrence.Y., heirs,” and not to the owners as non-residents, it being proven that neither Lawrence Y. Husted nor . either of his heirs ever resided in the town of .Jamaica; and after, calling attention to defendant’s admission of actual adverse possession of the premises, rested her case. The defendant then moved to dismiss the case on the ground, among others, that the plaintiff had not shown possession at any time within the last twenty years; had not shown color of- title or ownership of the property in question. The motion was denied arid an exception taken.

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 tax sales a number of times before he received a tax lease, and was in possession under such purchases when the two tax leases introduced in evidence by the plaintiff were given ; that he received tax leases other than those introduced in evidence, under which he was given the right of possession; that defendant took possession under his conveyances from Canning in February, 1900, and that on January 1, 1910, he took from Emily. Adams and Claudina Post, plaintiff’s grantors, a quitclaim deed of the premises, which he pleaded by supplemental answer.

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 result. The section'of .the Code under, which plaintiffs action-is-brought provides a condition precedent to the right of a grantee to maintain an action in the name of his- grantor, viz,, the conveyance under which lie' claims-iniist be void because the property conveyed was held adversely to the grantor. Such a deed.is void only when the lands are- at the time of the delivery in the actual possession of a person claiming under a title adverse to that of the grantor. (1 B. S. 739, § 147; Beal Prop. Law [Gen. Laws, chap. 46 ; Laws of 1896, chap. .547], §' 225 ; now Beal Prop. Law [Consol. Laws, chap. 50 ; Laws of 1909, chap. 5-2], § 260, as amd: by Laws of 1909, chap. 481, and Laws of 1910, chap. 628.) These facts the plaintiff must establish to entitle her to maintain this action. Not only did. she fail to do so, but it appears from the evidence of the defendant’s predecessor -in title that the only right he had in the land, and con-' - sequently the only right he could convey- to the defendant, was the right of possession under a tax lease. Canning acquired no title by the delivery of the tax leases to him or by his-possession, thereunder, nor did the defendant. The deed to plaintiff, therefore, conveyed whatever title her grantors possessed,. subject to the defendant’s right of possession under the tax leases. For.this reason the rule invoiced by the defendant (Dever v. Hagerty, 169 N. Y. 481) has no application, Finally, the plaintiff’s contention that she .has established that the defendant had no right to the possession of tlie premises because the tax leases upon which such right rested .were-void, rests upon the assumption that the defendant’s right of possession is based wholly upon the two tax leases. 'This assumption is incorrect, as defendant’s grantor testified that he had other tax leases. The defendant’s right of possession resting' upon several tax leases,. the plaintiff does not by showing the invalidity of two establish-'-, that he had no right of possession., ■

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: .