New York Central & Hudson River Railroad v. Brennan

12 A.D. 103

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 1, 1896
• Status: Published

Opinions

Follett, J.

This action, ejectment, was begun July 13, 1893, to recover part of lot No. :8 and all of lot No. 9 in block 195 in the city of Syracuse, and for damages for the unlawful withholding thereof. The plaintiff alleges in its complaint that it is the owner in fee of the premises. The defendants in their answer deny that the plaintiff is the owner in fee, and allege that they are the owners of the fee of the premises.

At the beginning of the discussion about the rights of these litigants the defendants meet the plaintiff with the assertion that the long line of conveyances, beginning with the patent from the State of New York to Abraham M. Walton, dated January 1, 1807, and ending with the deed from Chauncey Vibbard to the plaintiff, dated November 15,1854, though in form sufficient to carry the fee of the land in dispute from the State to the plaintiff, are insufficient in law for the reason that there is no evidence that any one of the parties to the grants in this chain of title was ever in possession of the land in dispute,, and more, that there is no evidence that any one of the parties to these grants was ever in possession of any part of the lands assumed' to be conveyed excejit the plaintiff, who took possession, under the grant from Vibbard, of lots 1 to 7, inclusive, of block No. 195.

The. facts asserted in this proposition are established by the evidence. There is no proof in the case that any one of the parties to the grants in this chain of title was ever in possession of the land which is the subject of this litigation, and the learned counsel for the defendants invokes the rule laid down in cases of which Dominy v. Miller (33 Barb. 386); Bates v. Lidgerwood Mfg. Co. (50 Hun, 420); Schrack v. Zubler (34 Penn. St. 38), and Bonaffon v. Peters (134 id. 180) are types, that the introduction in evidence of deeds Avhich form a plaintiff’s chain' of title, without showing that the grantors or grantees Avere in possession of the subject of the grant, does not establish title in them nor in a plaintiff; and in case a plaintiff in ejectment gives no other evidence of title in himself, no case is made out against a defendant in possession. Undoubtedly such is the Avell-settled general rule, but, like most general rules, it has exceptions. In Greenleaf v. B., F. & C. I. R. R. Co. (132 N. Y. 408) it was held that ancient deeds coming from the proper custody might be received in evidence without showing acts of OAvnersliip" under them, hut that such deeds did not establish title in the parties to them or in the plaintiff in the action, without showing some modern possession by those receiving later deeds which formed part of. plaintiff’s chain of title.

The case at bar was tried in October, 1894, forty-eight years after the date of the deed to Robert E. Temple as trustee, so that it and all former grants were ancient deeds, and under the rule declared in the case last cited were admissible in evidence, but are insufficient to-establish title in the parties to them imless they are within some-exception to the general rule. In this ease the plaintiff -traced its paper title back to the common source of all land titles in this State — to the State of Eew York —which is declared by the 10th section of the Constitution to have been the original owner of all lands-within the State, and, besides, it is a part of the history of the State that the Indian title to the lands in the county of Onondaga was acquired by treaty, and subsequently the State' Surveyed and granted all the lands within that county. It was not necessary, in order to> show that the State held the legal title of the lands, to prove acts of ownership; oh its -part, for. -it must ,be presumed that it possessed the original title. The legal title of the . State, which was -the. original grantor, being established, it will be presumed in the absence of evidence to the contrary — the presumption being a rebuttableone— that the subsequent' parties to ancient grants in such a chain of title were in possession under their grants and acquired the title; assumed to be conveyed by the grants. The rule is not unlike the one which estops litigants claiming under a common source of title from disputing the title of their common ancestor or predecessor from whom the litigants claim to have derived title. A perfect chain of title conveying the land in dispute from the State to Walton, and from him through mesne conveyances to Robert E. Temple, who-acquired title January 9, 1846, is disclosed by the evidence, and it must be held that -he was the owner of the land in fee simple. October 14, .1849, Robert E. Temple assumed to convey this land-, to John Townsend, and at this point the difficulty in the plaintiff’s-' title begins. At the date of this- deed John Brennan, the father of these defendants, was in possession of the lands in dispute, and had-been for two years. It does not appear when he entered into-possession, it simply appearing that he was in possession in 1847; nor does it appear under what right or authority he took possession. There'is no evidence that John Townsend was ever in possession of the lots in dispute, or of any part of the land described in the grant to him. December 20, 1850, John Townsend quit-claimed his interest in an undivided half of the disputed lands and of adjoining lands to Augustus James, at which date the widow and five children of John Brennan were in possession of lots 8 and 9* and there is no evidence that Augustus James was, or that his heirs, .were, ever in possession of any part, of the land described in the grant to him.

In 1852 John Townsend began an action to partition block No. 195, and a judgment of partition was recovered. The widow and children of John Brennan, then in possession of lots 8 and 9* were not parties to that action. At some time block 195 was. divided into nine lots and numbered from 1 to 9, inclusive. When this was done does not appear, but perhaps it ivas .done for the purposes of the sale under the judgment in partition. November 1, 1853, the sheriff of the county of Onondaga, pursuant to-the judgment.in partition, sold the nine, lots to Chauncey Vibbard,, aiid on the same day he assumed to convey each one of the lots' toVibbard by a separate deed, all of which deeds were recorded May 3, 1854. At the date of these deeds the widow and five children of John Brennan were still in possession of lots 8 and 9, and no-attempt was made on the trial to show that Vibbard entered into-possession of any of the lots.

November 15, 1854, Chauncey Vibbard assumed to convey the-nine lots to the plaintiff by a deed recorded December 30, 1854. At the date of this deed the widow and five children of John Brennan were in possession of lots 8 and 9, and there is no evidence tending to show that the plaintiff ever had possession pf either lot,, but the case does show that the plaintiff entered into possession,; under the Vibbard deed, of lots 1 to Y, inclusive.

Under this state of the evidence.the presumption arising from, the face of the deeds subsequently to the deed to Walton, in. the chain of title from the State, that the grantors and grantees in those deeds were in possession of the premises, is rebutted, and the deeds* Townsend to James, the sheriff to Vibbard, and Vibbard to the plaintiff, were insufficient, under the rule laid down, in Dominy v. Miller (supra), and other cases, to establish title- in the plaintiff' as. against the defendants in possession claiming title.

One other document is relied on by the plaintiff to establish his, title — the judgment in ejectment recovered June 21, 18Yl, by it against Johanna, Charles and James 0. Brennan. Before considering the effect of this judgment it will be important to consider who were then in possession of the premises. Mary Brennan, the eldest child of John, remained on the premises from the death of her father until her marriage, but when she married does not appear. She died in 1868, ■ but whether she left a husband or descendants does not appear, nor does it appear whether she died intestate. James C. Brennan lived on the premises until he married, and then lived elsewhere. When he was married does not appear, but probably after 1870. April 29, 1868, Johanna Brennan, by a deed recorded June 3, 1868, quit-claimed her interest in the two lots to Charles Brennan and James 0. Brennan, and on the same day the grantees mortgaged-the premises to John D. Silcox, which mortgage was recorded June 3, 1868. Whether Mary Brennan died before or after the date of this deed does not appear. In 1870 the plaintiff in this action brought ejectment against Charles Brennan, James C. Brennan and Johanna Brennan, for the recovery of the premises in dispute. The defendants answered jointly. At the time this action was begun, the widow and all the children of J ohn Brennan were living on the premises, except Mary, who had married and died. John Brennan and Margaret Brennan,, though then occupying the premises; were not parties to that action. September 8,1870, while the ejectment suit was pending, Charles Brennan died intestate, leaving his brothers and sister his heirs and next of kin. The ejectment action was not revived nor continued, nor was any suggestion of the ■death of Charles entered upon the record. After his death, the ■ejectment action was tried, and, June 21,1871, a judgment in ejectment was in form entered against Johanna, James O. and Charles Brennan. By this judgment the interests of Johanna and James C. Brennan were cut off, but the interests of John and Margaret-, the ■defendants in the present action, were not affected by the judgment, for they were not parties to the action; nor were their interests acquired by the death of Charles Brennan affected by the judgment •entered after his death, upon a trial which occurred after his death. This judgment was never enforced, and it does not, as against these ■defendants, establish title in the plaintiff. James C. Brennan left Syracuse in,.1881 or 1882, since which time he has not been heard from, and whether he is living or dead is unknown, but the presumption is that he is dead. (Code Civ. Proc. § 841.) Whether his wife is still living or whether he had children does not appear. Johanna Brennan resided on the disputed premises until March, 1892, when she died intestate. This disposes of the widow and three of the children of John Brennan, leaving the two defendants in this action on the premises, both of whom were born thereon; Margaret in 1847 and John, October 11, 1848 ; both of whom have continually resided thereon from the dates of their births. The evidence shows that the Brennans from time to time repaired the dwelling, and, during the earlier years of their occupation, fenced the lots, planted trees, cultivated part of the ground as a garden,, and have occupied the premises in the way in which city and village lots are usually occupied, none questioning their title or possession during all these years.

Section 372 of the Code of Civil Procedure provides:

“ § 372. For the purpose of constituting an adverse possession by a person claiming title, not founded upon a written instrument, of a judgment or decree, land is deemed to have been possessed and occupied in either of the following cases, and no others:

“ 1. Where it has been protected by a substantial inclosure.

“ 2. Where it has been usually cultivated or improved.”

In order to constitute adverse possession, it is not necessary that all three of the conditions exist If the existence of any one of the three is- established, it is sufficient. In this case it is established that the premises in dispute were both cultivated and improved in the manner in which such lots are usually cultivated and are usually improved in cities and villages. A claim of title may be made by acts alone as well as by assertions. (La Frombois v. Jackson ex dem. Smith, 8 Cow. 589; Barnes v. Light, 116 N. Y. 34.)

Under the evidence, the learned trial court well held that the plaintiff had failed to meet the requirements of section 365 of the Code of Civil Procedure by establishing that “the plaintiff, his ancestor, predecessor or grantor, was seized or possessed of the premises in question, within twenty years before the commencement of the action.”

The judgment should be affirmed, with costs.

All concurred, except Wabd, J., dissenting.. ' v -