
    MARY ANN DOHERTY, et al., Grantors of Charles Jones v. GEORGE W. MATSELL, Jr., et al.
    
      Ejectment.—Statute of Limitations.—Adverse possession originating during tax lease, effect of as postponing time when statute begins to run—Direction of verdict on specified ground, when judgment not sustained on other claimed grounds—Death pendente lite of some of plaintiffs in action brought under section 1501 Code—Effect of.
    
    Adverse possession originated during the term demised by a tax lease cannot ripen into a title as against the owner in fee, until the expiration of twenty years from the expiration of the demised term, and of such further terms as may be demised by subsequent tax leases, each subsequent lease being made before the expiration of the term demised by the one immediately prior thereto, such owner not attacking the leases.
    Thus in the case at bar the plaintiff claimed by various mesne conveyances from Yallas Hopper, who in 1829 had the paper title to, and was claimed to have had actual possession thereunder of the locus in quo. 
      In 1848, one Matsell, Senior, went into possession under a tax lease to him for a term of twenty-five years from September 5, 1848. This lease was his only paper title. In February, 1857, Matsell, -Senior, gave a quit claim deed to Mickle, 'and also assigned to him the tax lease. Mickle went into possession and continued in possession for about a year when he was either disseized by Matsell, Senior, or Mat-sell, Senior, re-entered by the consent and acquiescence of Mickle. In 1861 the premises were again sold for taxes and tax lease thereof, given to Francis Owens for a term of fifteen years from November 15, 1861. This lease was in 1862, assigned to George Matsell, Senior. In 1864 George Matsell, Senior, conveyed to George Matsell, Jr., one of the defendants herein, by an absolute deed, who entered under the deed and remained in possession thereof and was in possession at the time of the commencement of this action on October 19, 1883.
    
      Held, that the defense of title by adverse possession was not on these facts sustained; since the plaintiff could not at any time prior to 1874, have maintained an action of ejectment, and he was entitled to twenty years thereafter in which to bring his action.
    Where the court below directs a verdict against the appellant on a certain specified ground, and the appellate court holds that the ground specified does not support the direction, the judgment entered on the direction cannot be upheld on the ground that some fact essential to a recovery or to the defense (as the case may be) as to which some evidence was given, but which was not passed upon by the court -below, was either not proved or insufficiently proved. Per Sedgwick, Ch. J.
    The death of some of the parties plaintiff in an action of ejectment brought by a grantee in the name of his grantors under § 1501 of the Code, pending the action, is not cause for dismissal of the complaint; nor can a direction of a verdict for the defendant, otherwise unsupported, be sustained by reason thereof.
    Before Sedgwick, Ch. J., and O'Gorman, J.
    
      Decided November 8, 1886.
    Exceptions ordered to be heard at general term.
    Action of ejectment to recover possession of four lots ■of land on the north side of Eighty-Third Street, between First and Second avenues in this city.
    The appeal hook shows that before plaintiffs rested, some testimony had been given on their behalf on the subject of one of their ancestors in their paper title— to wit, one Tallas Hopper, being in actual occupation of the locus in quo from 1820 to about 1830, holding a paper title thereto; also that plaintiffs’ evidence established that two of the plaintiffs, to wit, Mary Ann Doherty and Margaret A. Lauter had died since the commencement of the action. It also shows that at the close of plaintiffs’ case defendants moved to dismiss the complaint on the grounds that the plaintiffs had not proved affirmatively that either themselves or their ancestors were in possession of the property within twenty years of the time of the commencement of the action; that there was no sufficient proof of the possession of the property by Tallas Hopper, or any of the parties through whom title is derived down to the plaintiffs; that it appeared in evidence that Mary Arm Doherty died since the commencement of the action, entitled to a life estate, and the action has not been revived in the name of her executor; that Margaret A. Lauter died since the commencement of this action, leaving a will, and her executors Avere not made parties; that the motion was denied and defendants excepted. It also shoAvs that at the close of the whole testimony, defendants’ counsel moved the court to direct a verdict for the defendants, on the ground that adverse possession had been proved for at least thirty years on a claim of title; that the motion was granted, and the court directed a verdict for defendants on that ground, to which direction plaintiffs excepted.
    The court ordered plaintiffs’ exceptions to be heard in the first instance at the general term, judgment meanwhile to be suspended.
    The other facts in the case sufficiently appear in the opinion.
    
      Thain & Kearney, attorneys, and John Townshend and Alex. Thain, of counsel for plaintiffs, on the questions considered in the opinions argued:—
    
      I. The possession of Tallas Hopper having been established under conveyances to him and a complete chain of conveyances from his executors and their grantees down to the plaintiffs and their grantor, the surviving plaintiffs were entitled to recover, unless an adverse possession of twenty years has been established in favor of the defendants (Code Civ. Proc., § 368).
    II. Possession having been shown in Tallas Hopper, possession of his grantees and those claiming under him will be presumed until twenty years adverse possession has been established in some other person (Code Civ. Proc., § 368).
    HI. The possession of George W. Matsell, Sr., having been commenced in 1849, and there being no evidence of title in Mm other than the tax lease, it will be presumed that his possession was under that lease. In fact he assigned the lease to Mickle in 1857, and gave quit claim deed to accompany it at the same time. There is no evidence of any oral or other declaration of Matsell, making any other or different claim of title. This is more than presumptive—it is direct evidence that Mat-sell entered “ under and subordinate to the legal title ” (Code Civ. Proc., § 368).
    IV. The tax lease continued in operation for twenty-five years from September 25, 1848, and expired on September 25, 1873, so that George W. Matsell and his successors in interest were rightfully in possession during the continuance of that lease, and had the right to remain in possession for one month thereafter, for the purpose of removing buildings, &c. (Robinson v. Phillips, 65 Barb., 418; s. c., 56 N. Y., 634). The plaintiffs had no cause of action by way of ejectment, they not attacking the lease until September or October, 1873, and then it was that the adverse possession began; or about ten years before the commencement of this action. No adversé possession could be acquired under the tax lease (Gross v. Welwood, 90 N. Y., 638; Bedell v. Shaw, 59 Ib., 46; Hoyt v. Dillon, 19 Barb., 644),
    
      The case of Sands v. Hughes (53 N. Y., 287) is not ip conflict, but rather in confirmation of this doctrine. There the plaintiff attacked the lease, and the court ruled, that if there was no lease, then defendants’ possession was not subordinate to, but rather adverse to the legal title; while if the lease were conceded defendants could not be ejected until after the expiration of the term.
    
      Thomas H. Barowsky, attorney, and John C. Shaw, of counsel for defendants, on the questions considered in the opinions:—
    I. In order to maintain this action the plaintiffs must show conclusively that their ancestor, predecessor or grantor was seized or possessed of the premises in question within twenty years before the commencement of the action (§ 365 Code Civ. Proc.,; Sherman v. Kane, 86 N. Y., 64; Hanse v. Mead, 27 Hun, 164). The possession of a record in paper title is not sufficient of itself on which to maintain an action of ejectment—possession must accompany the legal title. There was not a particle of evidence to show (except the hearsay testimony of Waldron) that the plaintiffs, or any of their alleged ancestors, predecessors or grantors down to the conveyance to Jones in 1883 (a period of about ninety-six years) ever actually occupied or were ever in possession of these premises, or ever exercised any acts of ownership over them whatsoever. This was not enough (Miller v. Downing, 33 Barb., 386; Thompson v. Burhans, 79 N. Y., 93; Roberts v. Baumgarten, 51 Super. Ct., 482; Miller v. Downing, 54 N. Y., 631; Gardner v. Heart, 1 Ib., 528; Stevens v. Hauser, 39 Ib., 302; 2 Greenleaf Ev., § 303 ; Adams on Ejec., 32, 285; Chitty on Pleadings, 172 Ia., 209 [7th ed.] ; Christy v. Scott, 14 How. [U. S.], 282; Lamont v. Cheshire, 65 N. Y., 30-3).
    n. The defendant on the trial established by abundant and undisputed evidence, both oral and documentary, a clear and perfect title to the premises in controversy by an adverse possession of the same for a period of over tioenty-five years. The possession and occupation of the premises in question by the defendant, his predecessor and grantor during the twenty-five years prior to the commencement of these actions, meets with all the requirements of law to originate and complete a perfect title to the same by adverse possession under the statutes of limitation (Bolton v. Schriever, 49 Super. Ct., 158; 2 Washburn Real Prop., § 501; Thompson v. Burhans, 79 N. Y., 93, 99; Sherman v. Kane, 86 Ib., 57; Shriver v. Shriver, Ib., 575; Humbert v. Trinity Church, 24 Wend., 587; School District v. Lynch, 33 Conn., 334; Thompson v. Pioche, 44 Cal., 517; Foulke v. Bond, 12 Vooom. [N. J.], 541; Samuels v. Borrowscate, 104 Mass., 210; 2 Smith’s L. C., 565; Bell v. Denson, 56 Ala., 448 ; Poignard v. Smith, 6 Pick., 172 ; Jackson v. Warford, 7 Wend., 62; Sands v. Hughes, 53 N. Y., 287). The two periods of time during which this defendant and his grantor and predecessor, George W. Matsell, Sr., had possession of the premises, when joined or tacked together, form one continuous and uninterrupted possession from 1858, when Matsell, Sr., disseized Andrew H. Mickle, and entered for the second time into possession, down to the time of the commencement of these actions in 1883, a period of over twenty-five years. There was a privity of estate between them by purchase, and their consecutive possessions joined together make a continuity of disseizin (Simpson v. Downing, 23 Wend., 320; Haynes v. Boardman, 119 Mass., 415; Wheeler v. Moody, 9 Texas, 377 ; Benson v. Stewart, 30 Miss., 57; Chandler v. Rushing, 38 Texas, 595; Riggs v. Fuller, 54 Ala., 146 ; Day v. Wilder, 47 Vt., 583 ; Howland v. Newark Cemetery Ass’n, 66 Barb., 366; Dowell v. De La Lanza 20 How. [U. S.], 32; 2 Washburn Real Prop., §§ 7, 489, 493).
    IH. The introduction by the plaintiffs of tl e tax lease of September 5, 1848, from the mayor, &c., of the city of New York, to George W. Matsell, and the subsequent assignment of the same by him to Andrew H. Mickle in 1857, and the tax lease to Owens dated November 15, 1861, did not in any way affect the defendants' title to the premises in dispute under the statutes of limitations. If Matsell, Sr., entered into possession under the first of these tax leases—and this was the only right he had to the possession of the property, he could still grant the land in fee to Mickle. An entry under that grant, and claiming title from the latter, is a sufficient foundation for an adverse possession under claim of title (Sands v. Hughes, 53 N. Y., 287). Possession of land under a deed given without right is adverse to the rightful owners, and a subsequent deed executed by them during such adverse possession is void (Jackson v. Smith. 13 Johns., 466; Thurman v. Cameron, 24 Wend., 87; Bradstreet v. Clark, 12 Ib., 602 ; Sands v. Hughes, 53 N. Y., 287).
    IY. The plaintiff’s motion for a new trial must be denied, if it clearly appears that he was not entitled to succeed upon the trial below. The proper parties, plaintiffs, were not before the court when the action was tried. These actions 'were brought in the names of six plaintiffs, grantors of Jones, who claim they were the owners, and .seized in fee simple absolute of the premises in dispute. On the trial herein it appeared from the testimony of Charles W. Doherty, one of the plaintiffs’ grantors, that his brother and alleged ancestor, John Doherty, died in 1859 intestate, unmarried, and leaving no lawful issue him surviving, but leaving a mother, Mary Ann Doherty, and five brothers and sisters him surviving at the date of the conveyance to Jones. They are the plaintiffs herein in whose names this action was brought, pursuant to section 1501 of the Code. Mary Ann Doherty, the mother of John Doherty, would, therefore, take a life estate in the premises, and be entitled in this action to recover tibe rents and profits arising therefrom for a period of six years prior to the commencement thereof, subject to the defendants’ offset for improvements (§ 1531 Code). In the event of plaintiff’s succeeding in this action, and on her death, the five other plaintiffs would succeed to the title as tenants in common (1 R. S., ch. 2, § 6, p. 703). It further appeared on the trial that said Mary Ann Doherty and her daughter Margaret A. Lauter, two of the plaintiffs, had died (pending the action and before the trial thereof), each leaving a last will and testament, which wills had both been admitted to probate, and their respective executors had qualified thereunder ; that the action had not at the time of trial been revived or continued in the names of their legal representatives. These actions were not brought to recover the undivided shares of the several plaintiffs, but by all claiming the undivided whole. In ejectment suits prosecuted by a grantee in the names of his grantors, in pursuance of section 1501 of the Code, all of the plaintiff’s grantors are necessary and proper parties to a complete determination of the action, and also the legal representatives of such of them as had died pending the suit, and before trial. The plaintiff’s right is entire, and he cannot split his claim and harass the defendant with several actions in the names of his grantors separately (Hasbrouck v. Bunce, 62 N. Y., 475).
   O’Gorman, J.

It was conceded by both sides that there was no question of fact to go to the jury.

The plaintiffs put in evidence as the origin of their title, conveyances made in 1787 and 1793, to one Tallas Hopper, of a tract of land in Harlem, and also a map of the same, the correctness of which was supported by the evidence of experts, showing that the lots in suit were part of the tract covered by these conveyances. Plaintiffs also gave evidence that Tallas Hopper was living in 1828 and then resided on a farm known as the “ Tallas Hopper farm,” which was situate between lines now known as 83d street and 84th street and Second avenue, and also that the lines of fences of that farm which ran East and West and North and South existed within recent memory, and that the tract of land thus hounded was substantially the same as that covered by the map.

This paper title is carried by a series of conveyances down to the plaintiffs, and, coupled with actual or constructive possession in Tallas Hopper, constitutes seizin, and a prima facie title in him, which enures to the benefit of his successors in interest (Pope v. Hanmer, 74 N. Y., 243).

Tallas Hopper died in 1830, and there is no evidence that the plaintiffs, or any of their ancestors or grantors, other than he, had any actual possession of this tract of land or any part thereof.

In an action in ejectment, the plaintiff must depend for success on the strength of his own title, not on the weakness of that of his adversary, and must prove his right to immediate possession and that he was seized or possessed of the premises in question within twenty years before the commencement of the action (Code Civ. Proc., § 365). The mere production of isolated conveyances as proof of title, without proof of possession, is not enough (Stevens v. Hauser, 39 N. Y., 304; Gardner v. Heart, 1 Ib., 529). In addition to paper title, the plaintiff in an action in ejectment must show also possession in the grantor, or possession accompanying the deeds—without this, he proves no title.

But where it is found or conceded that a party named has title, that is sufficient—his possession will be presumed, and the occupation by any other person is presumed to be subordinate to the legal .title, unless it appears that the premises have been held adversely twenty years before action brought (Stevens v. Hauser, supra, 304 ; Carleton v. Darcy, 46 Super. Ct., 493 ; Roberts v. Baumgarten, 51 Ib. 482).

° The paper title and the actual possession being proved to have been in Tallas Hopper in 1829, a legal seizin and constructive possession, which enured for the benefit of his successors in interest, are presumed, and the burden of proving adverse possession for twenty years before commencement of the action rests on the defendants (Code, § 368).

To maintain this defense, the defendants have proved that in 1848 the tract of land, within which these lots were situated, was vacant and unfenced; that the lots were sold for unpaid taxes, and that a lease for a term of twenty-five years from date was made, on September 5, 1848, to George W. Matsell, who thereupon entered into occupation of the lots and built five houses thereon. The term of this lease expired on September 5, 1873. The occupation by Matsell under this tax lease (and no other paper title is proved in him), did not constitute adverse possession against the OAvners of the fee, and he could not, during the continuance of the lease, sustain a claim to any higher title than that of lessee under a term of years (Bedell v. Shaw, 59 N. Y., 46).

On February, 1857, Matsell executed a quit claim deed of these lots to one Andrew Mickle, and the deed Avas duly recorded on March, 1857. Mickle thereupon entered into occupation of the lots and collected the rents of the houses built thereon. On February 29th, 1857, Matsell assigned to Mickle the tax lease, and that assignment was also duly recorded Avithout delay, and the tax lease continued in possession of Mickle until the end of the term. After Mickle had been in possession of the premises for about one year, he was disseized by Matsell, who resumed occupation of the premises and continued to occupy them for his own benefit until November 1, 1864, when he conveyed them to his son George Matsell, Jr., by an absolute deed. This deed was duly recorded on November 11, 1864, and thereupon Matsell, Jr., entered into actual possession of the premises and continued in possession until the commencement of this action.

On November 15, 1861, the lots had been again sold for unpaid taxes, and a lease thereof of that date and for the term, of fifteen years had been executed by the city to one Francis Owens, who assigned the lease to George Matsell the elder, on December 2, 1862. The term of this tax lease did not expire until November, 1876.

Thus from September 5, 1848, to September 5, 1873, and from that time to November, 1876, a period of twenty-eight years, the premises were held subject to one or other of these tax leases.

The defendant Matsell, Jr., claims that he has held adverse possession of these lots for nineteen years, that is to say, from November 1, 1864, when he received the deed from his father to October 9, 1883, when this action was begun, and that he is entitled to add to that period the period when his father held also adverse possession, which period together would exceed twenty years. The question is whether this claim can be maintained.

As to the title acquired by Matsell, Jr., by the deed from his father to him, it has been held that an entry under a deed, even although an invalid deed, coupled with actual possession in the grantee, is entry under a colorable title and adverse possession (Sand v. Hughes, 53 N. Y., 287, 294, 295). The same doctrine may apply also to the title acquired by Mickle under deed from Matsell, Sr., under which Mickle held possession for a vear.

But in order to the establishment of a possession, as against the owner in fee, defeating his title, the possession must be adverse to the legal title, and founded on a written instrument and under a claim of title exclusive of any other right. During the time of possession claimed to be adverse the owner in fee must not be under any disability preventing him from asserting his title by action of ej ectment against him who holds adversely. No possession can be deemed adverse to a party who has not at the time the right of entry and possession (Robinson v. Phillips, 65 Barb., 418, affirmed ; 56 N. Y., 634). Possession and claim under a municipal tax lease are not adverse to the claim of the owner in fee (Bensel v. Gray, 62 N. Y., 633). Possession of land to establish a title to the fee must be accompanied by claim of title in fee (Bedell v Shaw, 59 N. Y., 46 ; approved in Hilton v. Bender, 69 Ib., 79).

The only paper title that Matsell, Sr., could claim was for a term of years, and the law will not from the mere fact of his possession adjudge him to be in, under a higher right or larger estate (Ib., 50). Any occupation which he may have had of the premises before receiving the tax lease was without any paper title, and was not, from all that appears, in assertion of any claim of special title or otherwise openly adverse to the title of the plaintiffs (Crary v. Goodman, 22 N. Y., 175).

During all the twenty-eight years under which the premises were subject to possession under the tax lease, the plaintiffs could have maintained no action of ejectment. In order to maintain an action of ejectment the plaintiffs must be legally entitled to immediate possession, and that would be impossible while the right to possession was in the tax lessee (Kukell v. Haley, 47 How., 82, 75).

Again, the defendants’ title depends on the alleged disseizin of Mickle by Matsell, Sr. Matsell had before that conveyed the lots to Mickle, who had entered, and but for the disseizin the title would have been in him. The facts on which this legal result of disseizin is predicated, do not appear in the evidence, and if, in fact, there was no disseizin, but only a re-entry by Matsell, Sr., by consent and acquiescence of Mickle, no new or stronger title was acquired by Matsell, and he held only by mere occupation, without any paper title or any claim of any specific title as against the plaintiffs which would establish adverse possession.

But putting the argument solely on the fact that during the thirty-five years which had elapsed from 1848, when Matsell, Sr., entered in occupation of the lots, to the time of the commencement of the action in 1883, there was for twenty-five years some one holding a tax lease of the premises, and in possession, or having right to take possession of the lots under the tax lease, and that during that period the plaintiffs could not have successfully maintained an action of ejectment, or recovered immediate possession of the lots, I am of opinion that, during that period, they were not occupied adversely under claim of title hostile to the plaintiffs, and their cause of action was not barred.

The plaintiffs’ exceptions are sustained and a new trial is ordered, with costs to abide the event.

Sedgwick, Ch. J., (concurring)

I agree with Judge O’Gorman in his views of this case. It is said in Sands v. Hughes (53 N. Y., 294): “ But there is no rule which prevents a hostile title being acquired, or an adverse possession being originated, during the running of an assessment lease, which possession would ripen into title in twenty years after the end of the term.” The due inference from the testimony in this case is that the plaintiffs could not bring ejectment against Mickle, Mat-sell, Senior, or Matsell, Junior, until 1874, at the end of the twenty-five years’ term of the tax lease, and that their right to bring ejectment commenced then and would continue for twenty years.

It is claimed that the plaintiffs failed to show title to the land, because they did not prove that any ancestor in their paper title had been in occupation of the land. Some testimony on this subject was given, and made a question of fact submitted to the court by the parties. The court did not pass upon this, for its decision was placed solely upon adverse possession by the defendants. This court must now remit the determination of this question to the future proceedings to be held.

The death of some of the plaintiffs since the action was begun, does not assist the defendants on this hearing. In Hasbrouck v. Bunce (62 N. Y. 483), it is said of such a state of facts, “ If the defect of parties had existed at the time of the commencement of the action, it would have been waived by the failure to take the objection in proper form. But having arisen since the commencement of the action, the only mode in which the defence could set it up, was by objecting to the cause proceeding without bringing in the representative of the deceased parties.” This objection, therefore, does not authorize a dismissal of the complaint, nor tend to sustain an otherwise unsupported direction to the jury in favor of defendants. The objection goes to the further continuance of the action. The order here should be the same as the order in the cited case ; the plaintiffs’ exception being sustained, a new trial is ordered, with costs to abide the event.  