Freedman v. Oppenheim

92 N.Y.S. 878

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 17, 1905
• Status: Published

Opinion

PER CURIAM.

Upon the proof offered on the first trial of this action, the title to the property which the plaintiffs undertook to convey to the defendant was declared by this court to be such as a purchaser should not be compelled to accept. Freedman v. Oppenheim, 80 App. Div. 487, 81 N. Y. Supp. 110. Upon the second trial, which now comes up for review, the plaintiffs attempted to strengthen their proof of adverse possession in accordance with the suggestion of the presiding justice in his opinion upon the first appeal. The additional proof submitted for this purpose does not seem to us sufficient to warrant a judicial decree for specific performance. It does not really establish anything more than was established upon the first trial. The alleged adverse possession must have begun about May 4, 1866, when Isaac F. Tyson received a deed of the property from Maria Nesmith and Thomas Nesmith, her husband. His son, Robert F. Tyson, testifies that his father did not live on the property, but that he walked over it, and at one time commenced to clear off the undergrowth there; that there was no house on the premises, but only the destroyed foundation of a house; that he did not put up any fences, the fences being already there, but that he fixed the fences at various times after he purchased the premises; and that he cut wood and cut underbrush. None of these facts are inconsistent with possession under the party holding the record title. Nor does the testimony of Mr. Augustus Prentice, to the effect that he knew that Mr. Tyson, after he purchased the property, went on and took possession of it, add anything to the strength of the plaintiffs’ case. It is merely the statement of a conclusion, without the specification of any of the facts upon which that conclusion is founded, save that Mr. Tyson went there frequently to examine the place, talked about having it divided up into lots, and cut brush thereon, which he had burned. Furthermore, it is to be observed that there is no proof in the case that, at the time when Isaac Tyson did any of the acts to which reference has been made, the owner of the record title was living and of sound mind, or that his heirs or devisees were at such times under no legal disability. Under all the circumstances, the plaintiffs have not negatived the possibility of an outstanding claim to the land by the heirs of the last holder of the record title, and this fact forbids the court from compelling a purchaser to accept a title founded alone on adverse possession.

The judgment should therefore be reversed.

Judgment reversed, and new trial granted, with costs to abide the final award of costs; HOOKER, J., not voting.