
    MORTIMER PORTER, Plaintiff and Respondent, v. JOHN McGRATH, Defendant and Appellant.
    I. GENERAL TERM.
    1. FINDINGS OF FACT, RIGHT TO LOOK BEYOND.
    1. On appeal from a judgment rendered on a trial by the court or a referee, the general term, when the evidence is before it, has a right to look into the testimony, and to presume that in addition to the facts,- specifically found such other facts as are necessary to support the judgment, and as to which there is sufficient evidence to warrant their having been found, were also found. Stoddart v. Whitney (46 W. 7. 637) does not conflict with this ; for there the court was not furnished with the evidence.
    II. TRUST DEED.
    1. Conveyance of land in trust with a reversion to the grantor on the execution of the trusts.
    1. Power ot Grantor.
    (a) Has power to grant, assign, or devise his reversionary interest.
    3. Exercise of power by devise to the trustee in fee upon trusts effect of.
    
      (®) Mebges the whole legal estate in the person who is the trustee and devisee, subject only to the execution of the trust if it remains unexecuted.
    III. EJECTMENT.
    1. Title of Plaintiff.
    1. Grantee in trustee deed, and deviser in fee, upon trusts contained in the will of the grantor.
    
      (a) May maintain the action whether the trust in the trust deed be executed or not; no conveyance having been made by him.
    1. If not executed, he may maintain it under the trust deed ; if executed, under the devise.
    2. DEFENSE TO ACTION.
    Occupancy. That defendant is not the actual occupant is a sufficient defense.
    3. DEFENDANT, WHO TO BE.
    1. The actual occupant, if thebe is one.
    1. Who is actual occupant.
    
      (a) Husband and wife. Where they both live on the premises which have been conveyed to the wife, who paid the consideration out of her own money, and which have also been leased to her for a term of years, the wife, since the act of 1849, is the actual occupant, and the proper party defendant,
    
    UNLESS,
    1. She has made the husband her tenant, or has put him in actual and exclusive possession, or has created a joint occupancy in him and herself.
    (®) The bare fact of their residing together in the dwelling does not make him either sole or joint occupant.
    2. Occupancy, estoppel by pleading against denying.
    1. Semble, where the defendant after a general denial claims to 'hold under an unpaid mortgage, and alleges that his possession is under that mortgage, and not otherwise, he is estopped from denying that he is the actual occupant.
    3. Occupancy by defendant, what sufficient pboof of. Such statement in the answer, in connection with defendant’s declaration made before suit brought, that he was the occupant, and proof, introduced to contradict a witness who had testified that she was the occupant, to the effect that before suit brought she had declared the defendant to be the occupant, is sufficient.
    
    
      Before Monell, Ch. J., and Sedgwick, J.
    
      Decided April 3, 1870.
    4. POSSESSION OF PLAINTIFF.
    1. Presumption of.
    
      (a) When he shows the legal title in himself, and no adverse possession of twenty years is shown, he is presumed to have been in possession within the time required by law.
    5. DEFENSE TO ACTION.
    1. Lease by assignee of unpaid mortgage.
    
      (a) Possession under, is a complete defense.
    But not
    if the lease was executed if ore the assignment of the mortgage to the lessor.
    
      Relation batik. The assignment will not relate bach so as to make the letting an act of possession under the mortgage.
    IV. EVIDENCE.
    1. Parol, as to written instrument for what purpose admissible.
    
      (a) Instrument not required to be under seal.
    1. By whom made. Although by the body of the instrument and the signature to it, it appears to be the instrument of A., it may be shown by parol that A. was acting as the agent of B., and that the instrument is in fact B.’s.
    Appeal from a judgment.
    The action was to recover the possession of real property, and was tried by the court without a jury.
    The following are the facts found, and the conclusions of law:
    In 1836, one Samuel A. Porter was seized in fee of the premises. In that year Porter mortgaged the premises to Ellis Potter and McGrown. In August, 1840, Porter conveyed the premises in fee to the plaintiff. In September, 1842, Potter and McGrown assigned their mortgage to one Van Voorhies, who in 1872 assigned it to Mary N. Townshend. The mortgage was never paid by Porter. He made a small payment in 1842.
    
      In October, 1865, one Chandler took possession of the premises as vacant lots, and erected a dwelling-house thereon ; prior to which time the premises were unoccupied.
    In the same year, Chandler conveyed the premises in fee to Ann McGrath, the wife of the defendant, who paid the consideration out of her own money. John Townshend testified on the trial that at the time of the lease of the premises to Ann McGrath, Mrs. Townshend claimed to own the same.
    On October 5, 1865, John Townshend gave Ann McGrath a lease of the premises for a term of ten years from ¡November 1, 1865. The precise finding of the judge was, that the lease to Ann McGrath was executed by and in the name of John Townshend, and that John Townshend testified on the trial that he made the lease as the attorney and agent of Mary ¡N. Townshend.
    In respect to the possession of the premises, the judge found as follows:
    That on or about October 5, 1865, the defendant entered into the occupation of the premises in suit, and has ever since occupied the same. That ever since the making and delivery of the lease to Ann McGrath, she has paid.the rent for the said premises pursuant to the terms of the lease.
    That prior to the commencement of the action, a.nd having in view the commencement of the same, the plaintiff had an interview with the defendant, and his wife, Ann McGrath, on the premises, and that in such interview the defendant and his said wife, both informed the plaintiff that defendant occupied the premises in suit; that he had purchased the house from the person who had put it up; and that he paid rent to Mr. Townshend for the lots, but plaintiff did not inform them of his object in making such inquiries.
    The conclusions of law were as follows :
    
      That at the time of the commencement of the action, the plaintiff was the owner in fee of the premises in suit.
    That at the time of the commencement of the action, the premises were “ actually occupied ” by the defendant, and he was the “actual occupant” thereof.
    That at the time of the commencement of the action, the defendant unlawfully withheld possession of the premises from the plaintiff.
    That the plaintiff is entitled to judgment for possession of the premises described in the complaint.
    Upon the trial, the deed from Samuel A. Porter to the plaintiff was read in evidence. It conveyed the premises in fee, but upon the trust to sell, and out of the proceeds to pay certain specified debts of the grantor, &c., and to pay over the residue, if any, to the grantor, his heirs, &c.
    The plaintiff also proved the will of Samuel A. Porter, made in 1840, by which he devised, &c., his estate to his executors in fee upon certain trusts. The plaintiff was named as one of the executors, and was the only executor who qualified.
    Ann McGrath testified that she bought the premises offChandler, and paid for them with her own money ; and that she afterwards took a lease from Townshend. That the defendant lived with her as a part of the family, but not as her tenant.
    The plaintiff testified that he went to the premises in November, 3 871, and saw Mrs. McGrath. The defendant was not present.
    Any conversation between the witness and Ann McGrath, not in the presence of the defendant, was objected to. The objection was overruled, and the defendant excepted.
    The plaintiff testified : I asked Mrs. McGrath who occupied the premises,—whose house it was; she told me John McGrath, her husband ; she said they had the»whole premises down to the Second Avenue. Afterwards I saw the defendant, and asked him if he occupied the premises, and he said he did ; that he had purchased the house from the person who had put it up, and that he paid rent to Mr. Townshend.
    The defendant’s counsel requested the judge to find as a fact, that at the time of the lease from John Townshend to Ann McGrath, Mary H. Townshend claimed to own the premises ; and also that said John Townshend executed the said lease as the attorney and agent of Mary H. Townshend.
    The defendant filed exceptions to the findings, fact, and conclusions of law, and appealed from the judgment entered upon the decision of the court
    
      John Townshend, attorney, and of counsel for appellant, urged:
    The appellant’s points are: 1. Ho title in plaintiff. 2. Defendant not the proper person to be sued. 3. Defendant, if the proper person to be sued, was in occupation under a mortgage in possession. I. At the time of making his will, S. A. Porter had no estate or interest in these premises which he could devise, and consequently the plaintiff took no interest under the will (Briggs v. Davis, 21 N. Y. 574 ; Wallack v. Van Reswick, 13 Alb. Law Jour. 44). (a) Besides which, the will does not empower the trustees to receive the rents and profits, and, therefore, they had a power only, and not a legal estate (1 R. S. 729, §56). (5) The judge at the trial apparently took this view, as he does not in his findings say anything concerning the will.
    II. Whatever estate and interest plaintiff took under the trust deed, terminated before the end of the trial in this action. The deed was made in August, 1840, and after twenty years, that is, after August, 1860, the debts were all presumed to be satisfied, and the trust estate reverted to the heirs of the grantor, S. A. Porter.(a) “But after twenty years the law presumes the debts paid, and the trust executed, so far as respects creditors ” (Burrill on Assignments, 551, 2d ed. ; Ingraham v. Cox, Select Eq. Cases [Pa.] 70 ; Coates Estate, 2 Id. 258, 263 ; McKnight v. Taylor, 17 Peters, 197 : Grant v. Duane, 9 Johns. 612). (b) The purposes for which the trust was created having ceased, the estate of the trustee also ceased (1 R. S. 730, § 67). (c) If the provisions of the Revised Statutes lastly referred to did not cover the case, the amendment to that section certainly did (Laws 1875, ch. 545, took- effect June 27, 1875). (d) As that law took effect before the decision, it applies to this case (Curtis v. Leavitt, 17 Barb. 311; 15 N. Y. 13-85; where as in this case the law passed after the proofs were closed), (e) A plea puis darrien continuance could be interposed at any time before verdict (2 Dunlap’s Prac. 624). (/) The law provides for the expiration of a plaintiff’s right before verdict (2 R. S. 308, § 31).
    III. John McGrath was not the proper party defendant. The premises were “actually occupied,” and in such case the “actual occupant” shall be “ named defendant ” (2 R. S. 304, § 4; People v. Ambrecht, 11 Abb. 97; Lucas v. Johnson, 8 Barb. 248; 2 R. S. 204, § 7; Id. 307, § 30, subd. 3; Id. 308, § 34; Id. 310, § 43 ; Id. 311, § 50.)
    IY. A married woman may hold and occupy real estate as her own separate property. In the exercise of this right it may happen that she will wrongfully withhold real estate. If she does so either by accident or design, it is her own act, and one which the husband can not control (Peak v. Lemon, 1 Lans. 302, Lamont, J.).
    Y. The fact that the defendant resided on the premises with his wife as part of her family, does not change the case. Where husband and wife live on premises, the separate property of the wife, the former is not in legal presumption so in control thereof as to be lia: ble for injuries sustained by negligence in the use thereof, as by leaving an uncovered pit thereon (Fiske v. Bailey, 51 N. Y. 150 ; Allen v. Cowan, 23 Id. 505 ; Rowe v. Smith, 45 Id. 230 ; Minier v. Minier, 4 Lans. 421). (a) The case of Snyder v. The People (26 Mich. 106) is consistent with this view (Shepperd v. The People, 19 N. Y. 543; Nat. Fire Ins. v. McKay, 5 Abb. N. S. 449). (c) There can be no estoppel by reason of anything said by the defendant to plaintiff, concerning the occupancy, because it does not appear that plaintiff informed defendant of his reasons for making the inquiry (Herman on Estoppel, 347, 339 ; Bigelow on Estoppel, 533).
    VI. The finding of fact that defendant was the occupant, was not warranted by the evidence, is contrary to the evidence, and is erroneous. It was excepted to. If warranted is not equivalent to finding that defendant was the “actual occupant.”
    VII. The court erred in allowing plaintiff to give his conversation had with Ann McGrath in defendant’s absence.
    VIII. The testimony that the lease to McGrath, was made by John Townshend as the attorney and agent of Mary N. Townshend, is in the case. It was properly admitted (Greenleaf' s Ev. § 279, 281; Taylor' s Ev. § 1051, 1054; Jackson v. Sternberg, 1 Johns. 153; Ide v. Sadler, 18 Barb. 34; Overseers of Berlen v. Norwich, 10 Johns. 229 ; Vanneman v. Powers, 56 N. Y. 42; Ford v. Williams, 21 How. U. S. 289; Noyes v. Phillipps, 16 Abb. N. S. 400; Gates v. Brower, 9 N. Y. 205; Sickles v. Gillies, 35 N. Y. Sup. Ct. 14 ; Herman on Estoppel, p. 229; Britton v. Lorenz, 45 N. Y. 54 ; Barry v. Ransom, 12 Id. 464 ; Russell v. Erwin, 41 Ala. 292 ; McArthur v. Soule, 12 N. Y Supreme Court, 67; Indianapolis R. R. v. Tyng, 13 Alb. L. J. 101).
    
      . IX. It is not necessary to the validity of a contract required by the statute to be in writing, that the writing should disclose the principal. The signature of the agent is sufficient (Dykers v. Townsend, 24 N. Y. 59; Ford v. Williams, 21 How. U. S. 289).
    X. A principal may always sue in his own name upon a contract in writing made by his agent, without disclosing the name of the principal (Tainter v. Prendergast, 3 Hill, 72; Noyes v. Phillips, 16 Abb. N. S. 400; Union Rubber Co. v. Tomlinson, 1 E. D. Smith, 364 ; Brush v. Cole, 28 N. Y. 261; Schmaltz v. Avery, 16 Q. B. 655 ; Addison on Contracts, 600, 6 Eng. Ed.).
    
    XI. So on such a contract the principal may be sued (Coleman v. First National Bank of Elmira, 53 N. Y. 393); unless it can be shown the other contracting party intended to look solely to the agent.
    XII. But in such a case, the agent is personally liable, and if sued, is not permitted to give evidence of agency. Proof of agency is not permissible on the principle of estoppel (Chappel v. Dunn, 21 Barb. 17 ; Lincoln v. Crandall, 21 Wend. 101; Babbitt v. Young, 51 Barb. 473 ; Beebe v. Roberts, 12 Wend. 413).
    XIII. If the agent describes himself as owner, the principal cannot sue (Humble v. Hunter, 12 Q. B. 310).
    XIV. The cases cited under points X. to XIII. as cases of contracts, are many of them cases of charter-party, but they apply equally as well to the case of a lease (Gram v. Seton, 1 Hall, 291).
    XV. At common law, a lease for more than a year was good by parol, and since the Revised Statutes, such a lease is good if in writing without a seal, and signed either by the lessor or his agent (Rickert v. Snyder, 9 Wend. 416; 2 R. S. 135, §§ 6, 8, 9).
    XVI. As the lease would have been good if made without seal, the fact of its being sealed makes no difference as regards the question of establishing agency (Lawrence v. Taylor, 5 Hill, 113 ; Everett v. Strong, 5 
      Id. 163 ; affirmed 7 Id. 585; Worrall v. Munn, 1 Selden, 242, citing many cases, and overruling on this point, Blood v. Goodrich, 12 Wend. 527 ; Hanford v. McNair, 9 Id. 54; see also Wood v. Auburn R. R., 8 N. Y. 160; Van Ostrand v. Reed, 1 Wend. 424; Dean v. Roesler, 1 Hilton, 420 ; Commercial Bank v. Warren, 15 N. Y. 57 ; Farmers’ Loan Co. v. Walworth, 1 Id. 433). A stranger can not impeach a contract, on the ground that the agent has exceeded his authority. The contract is not void for that reason. It may be the principal has ratified it (Jackson v. Van Dalfsen, 5 Johns. 43 ; Beals v. Allen, 18 Id. 363; White v. Skinner, 13 Id. 307).
    XVII. Conceding that no authority to make the lease was shown, that the lease was void for that cause, and that plaintiff can raise the question, what results ? Simply that Ann McGrath became tenant of Mary N. Townshend from year to year instead of for ten years (Parcell v. Potter, Anthon N. P. 310 ; Porter v. Bleiler, 17 Barb. 149; 1 Platt on Leases, 391, 392).
    XVIII. This case differs materially from the case of an attempt to enforce the lease in favor of or against a party not named in it. Such an action, of course, could only be upheld by making the lease the act of the party not named (Purcell v. Potter, Anth. N. P. 310).
    XIX. It being shown that the lease by John Townshend tó Ann McGrath, was on behalf of Mary N. Townshend, Ann McGrath was really the tenant of Mary N. Townshend. The premises were occupied under the permission of Mary N. Townshend, and she was the assignee of the unpaid mortgage. The possession of McGrath was the possession of Mary N. Townshend; she was mortgagee in possession, and ejectment does not lie against a mortgagee in possession (Murray v. Walker, 31 N. Y. 399; Chase v. Peck, 21 Id. 581; Hubbell v. Sibley, 50 Id. 468). (a) Assignee of a mortgagee who is in possession can not be ejected by mortgagor (Jackson v. Bowen, 7 Cow. 13 ; Jackson v. Winkler, 10 Johns. 480). (5) After a mortgagee or his assignee has lawfully obtained possession, he may retain it until the debt secured by the mortgage has been paid . . . after possession he has the property pledged as his security, the title remaining as it was before (Trimm v. Marsh, 54 N. Y. 599; Wells v. Pierce, 4 Abb. Ct. of App. Cases, 559). (d) The only remedy of the mortgagor was by suit to redeem (Hubbell v. Moulson, 53 N. Y. 225.) (e) The statute of limitations does not pay a debt, it merely bars the remedy. The moral obligation to pay always remains (Johnson v. Alb. & Sus. R. R. Co., 54 N. Y. 417).
    
      Alexander Thain, attorney, and of counsel for respondent, urged :
    I. The plaintiff had shown a right of possession at the time of the commencement of the action, under the conveyance and under the will, and the title of Samuel A. Porter, through whom he claimed, having been conceded, the motion to dismiss was properly denied (2 R. S. title 3, part 3, chap. 5, sec. 25 ; Chapman v. Del. Lack. W. R. R. Co., 3 Lans. 261). The plaintiff, having shown legal title in himself, is presumed to have been possessed within the time required by law, no adverse possession for twenty years, or for any time, having been shown (Code, § 81).
    II. The will of Samuel A. Porter vested the legal title of his entire estate in his executors, and the plaintiff being the only one that qualified, took the sole legal title.
    III. Samuel A. Porter had an interest in the premises in question which passed to the plaintiff as his executor (3 R. S. 5th ed. p. 21, §§ 79, 80).
    
      IV. Assuming that plaintiff’s title as assignee ceased in 1860 by reason of the presumption that the purposes for which the estate was created had also ceased, then if our reasoning under the second point be sound, the legal estate vested in him under and by virtpe of the will, and he sustained his title on production of the will. It is a familiar principle that if the judgment of a court be right it will not be reversed, although the court erred in not stating the proper grounds for its decision ; and assuming it was error for the court not to have placed plaintiff’s right to possession under the will, the judgment should not be reversed for that reason, as the evidence as to the will was before the court below, and is also before this court, uncontradicted, and without objection by the defense. The findings may be modified, and the judgment affirmed (Casler v. Shipman, 35 N. Y. 533). It affects no substantial right of the appellant (Code, § 126).
    V. The defendant was in possession. Plaintiff testified as to an interview had with Mrs. McGrath, at which she stated that the property was occupied by her husband, and also as to another interview had with defendant and his wife, in which they both said that defendant was in possession. Beither defendant nor his wife attempted to contradict this, and since, by asserting the fact, they induced the plaintiff to bring his action against the defendant as the party in possession, they are estopped now from denying it (Tyler on Ejectment, 472, 473; Goshan v. Brown, 2 Doe, 174). It was not claimed or pretended that Mrs. McGrath was carrying on any business which required die use of this property, but the fact does appear that io was used as the residence of the family, and the law therefore presumes it was the dwelling of the husband and in his possession as head of the family (Snyder v. The People, 26 Mich. 106 ; Same case, 12 Am. 
      
      R. 302). Such legal title as passed from Mr. Townshend may have vested in Mrs. McGrrath, and yet the actual possession of the property be held by defendant (Churchill v. Onderdonk, 59 N. Y. 134 ; Fiske v. Bailey, 51 Id. 150).
    VI. The possession was unlawful. Assuming that the lease from John Townshend to Mrs. McGrrath was the authority under which defendant held, it was executed by a party making no claim of title whatever. The court disregarded the lease from John Townshend to Mrs. McGrrath, the defendant having expressly disclaimed any right of possession save under the mortgage, and has also disregarded the evidence of Townshend that in making the lease he acted as agent for his wife ; and that his wife claimed an interest in the property anterior to her rights under the mortgage. The only competent evidence of either authority to lease for more than one year, or a conveyance to Mrs. Townshend, being written instruments (Squier v. Norris, 1 Lans. 282; Babbitt v. Young, 51 Barb. 466 ; 3 R. S. 5th ed. 220, § 6).
    VII. There was no right to hold under the mortgage shown. Defendant went into possession about October, 1865; whereas, Mrs. Townshend had no interest in the mortgage under which the defendant claimed his sole right of possession until December, 1872. There was no evidence of attornment on the part of either defendant or his wife to Mrs. Townshend after she acquired the mortgage, or in fact of attornment to her at any time, or recognition of her in any way, and no evidence that Mrs. Townshend, or her assignor, ever had possession of the property in question, or put any one in possession, or that there was any privity of contract between her and defendant, or that defendant .or his wife knew that such a person existed ; the only evidence in the case being that Chandler, who had possession, turned the same over to defendant, showing that defendant acquired possession under neither the lease nor the mortgage. To allow Townshend’s statement as to the position he occupied in making the lease to have any weight, would be leaving the matter a shuttlecock between himself and wife, to be used either way a.s interest demanded.
    "VIII. The court committed no error in allowing plaintiff to testify as to the conversation with Mrs. McGrath had in defendant’s absence. It wen t to show that she had made statements as to who occupied the property inconsistent with her testimony ; and in contradiction of her, after her attention had been called to the interview, and she had denied saying anything about the place.
   By the Court.— Monell, Ch. J.

The only fact found by the court to support the plaintiff’s title, is the trust deed executed in August, 1840. No finding was made in respect to the will of the grantor, executed in the same year devising the premises to the plaintiff.

It may be doubtful whether the plaintiff’s title can be sustained under the deed alone. A presumption of the execution and satisfaction of the trust, arising from lapse of time (Doe v. Staple, 2 T. R. 684 ; Laws 1875, chap. 545) would under the statute (1 R. S. 730, § 67) terminate the estate of the trustee, and reinvest it in the grantor, his heirs, and assigns. It does not appear that the plaintiff ever took or was in possession of the premises, either under the trust deed or otherwise ; and more than thirty years have elapsed since the deed was delivered. This would be sufficient to raise the presumption that the purposes of the trust have been executed ; and by operation of law the estate would revert to the grantor.

It is not, however, necessary, I think, to determine that question, as the plaintiff’s title can be upheld in another way.

The will of Samuel A. Porter, which took effect in 1841, devising his estate to the plaintiff, was received in evidence without objection ; and if we are permitted to look beyond the findings for evidence to sustain the judgment, the will is sufficient for the purpose.

In Chubbuck v. Vernam (42 N. Y. 432) the court says, “ A party seeking to uphold the report of a referee is entitled to the benefit, not only of the facts actually found by the referee ; but also, if necessary to sustain the conclusions of law found by the referee, to all such facts as the evidence tended to prove, and as the referee might have found in his favor.” In that case the court was not furnished with the evidence, and so far as it holds that' in such a case it was proper •to assume that there was evidence sufficient to sustain the finding of fact, it has been overruled by Stoddard v. Whiting (46 N. Y. 627).

But the last case does not interfere with the main proposition, that where the evidence is before the court it maybe looked at and used to support the conclusions of law.

However the rule may possibly be in respect to the powers of the court of appeals where the decisions cited were made, it is clear that this court at general term is not restricted to the facts as found below, but may look at all the evidence furnished in the case. This was in effect, I think, so held in Valentine v. Conner (40 N. Y. 248) where the court say (p. 252) “ that court—i. e., the general term—were not restricted to the facts found, but were authorized to examine the testimony, and reverse on the ground that it did not sustain those facts.” If the evidence can be resorted to to reverse, a fortiori, it should be resorted to to sustain a judgment.

Judge Grover, in a concurring opinion, in the case last cited, says, “It has been repeatedly held by that court that it will be presumed in support of the judgment of the referee, that he found such facts, in addition to those specified in his report, as essential to sustain the judgment, provided there was evidence given to warrant the finding of such additional facts.”

Looking, therefore, into the evidence, as I think we have a right to, we find that by the will of Samuel A. Porter, which took effect some five years after the date and delivery of the trust deed, he devised to the plaintiff all the interest in the premises that remained in the testator. The deed had conveyed the premises upon certain trusts, with a reversion to the grantor upon the execution of the trusts. Such reversionary interest passed to the plaintiff under the will, and merged the whole estate in him. The statute provides (1 R. S. 729, § 61) that a conveyance in trust shall not prevent the granting or devising the same lands, subject to the execution of the trust. And the grantee or devisee shall have a legal estate in the lands as against all persons, except the trustee and those lawfully claiming under him. Here, the trustee and devisee being the same person, the devise was of the whole legal estate to the plaintiff, subject only to the execution of the trust, if it remained unexecuted.

If, therefore, as has been suggested, the purposes of the trust are to be presumed to have been executed, then the devise took effect, and the legal estate was vested in the plaintiff under the will, discharged of the trust estate.

In the event, therefore, of the failure of the plaintiff’s title under the trust deed, he is amply fortified under the devise ; and the undisputed fact of the will, as proved, will sustain the conclusion of law, that at the time of the commencement of the action the plaintiff was the owner in fee of the premises.

It is objected by the defendant that the action is not properly brought against him, he not being the actual occupant; that it should have been brought against Ann McGrath, his wife.

The statute provides that if the premises are “ actually occupied,” such “actual occupant” shall be named as defendant.

The fact, as found by the court, is, that in “October, 1865, the defendant entered into the occupation of the premises, and ever since ^occupied the same.” And as a conclusion of law, “ that the premises were ‘ actually occupied ’ by the defendant, and he was the ‘actual occupant’ thereof.”

The evidence establishes these facts :

That prior to the delivery of the trust deed, Porter mortgaged the premises to Potter and McGown. In 1842 they assigned the mortgage to one Yoorhies, who in 1872 assigned it to Mary bT. Townshend. In 1865 one Chandler took possession of the premises, they being then vacant and unoccupied, and erected a dwelling-house ; and in the same year conveyed to Ann McGrath, the defendant’s wife, in fee, who paid the consideration out of her own money. At about the same time, John Townshend, the husband of Mary bT. Townshend, leased in his own name, but as he testified, as the agent of his wife, the premises to Ann McGrath, for a term of years. Ann McGrath and her husband, the defendant, lived together in the house on the premises.

The conveyance and lease to Ann McGrath, if they established any title, established it in her, and not in her husband. Under the laws of this State she could take and hold real or personal property as her separate estate, and is entitled to its rents, issues, and profits (Laws 1849, chap. 375).

Ann McGrath, therefore, was at the commencement of the action in possession under color of title, claiming to be the owner, and was the proper party to be made defendant, unless the joint occupancy with her husband, or the marital relation, made him the “ actual occupant” within the meaning and intent of the statute ; and that would be a good defense, unless the defendant by his acts and declarations is estopped from claiming that he was not in actual possession. Upou no other principle can the finding of the learned judge be sustained.

The action is to recover possession, and hence the necessity of proceeding against the person in the actual possession, against whom alone the writ of possession would be effectual. And as the occupant is liable for the rents and profits, the defendant had a right to defend, on the ground that he was not the actual occupant, and not liable for the rents and profits.

The right of a married woman to hold real property draws to it the right of possession, as in other cases, and she can hold both the title and the possession, and the rents and the profits, as her separate estate. She could have made her husband her tenant, or she could have put him in actual and exclusive possession, or she might have created a joint occupancy with herself. Bat either of these several relations would have to be established ; otherwise she, holding the legal title and being actually upon the premises, is to be presumed to be in the actual occupation.

The mere fact that McGrath resided in the dwelling-house with his wife, did not of itself, necessarily, make him, in contemplation of law, either the sole occupant, or a joint occupant with her. She might lawfully and properly permit him to reside there, without parting with her estate, or with her right to the rents and profits ; and without giving up her own occupancy. And if there was no conventional relation between the defendant and his wife which would give him the right to hold possession, then his mere marital relations would not be sufficient to make him the actual occupant within the meaning of the statute.

Shaver v. McGraw (12 Wend. 558) illustrates the meaning of the statute as to actual occupancy. The defendant was found working on a farm, there being no other occupant. But it appeared that he was hired by the person claiming ownership, and the court say, the possession by a servant claiming no beneficial interest, was not an actual occupancy by him.

The complete-disseverance of husband and wife, in respect to her separate estate, and his former common law right over if, is indicated in the following cases :

In Allen v. Cowan (23 N. Y. 502), it is held that the wife’s personal property in a house occupied by the husband and wife, is to be deemed in the possession of the wife.

In Rowe v. Smith (45 N. Y. 230), the husband and wife resided together upon the wife’s land, the horses, cattle, and other personal property, being used in connection with the real estate for the support of the family. The action was against the wife for a trespass by the cattle, and she claimed that her husband and not herself was liable. But the court held that the action would lie against her by force of the statute, separating her estate and all its incidents from her husband.

In Fiske v. Bailey (51 N. Y. 150), the action was against the husband, and the case was decided upon the admissions in the answer. But the court say that a husband and wife domiciled upon the separate property of the wife does not, of itself, give him any legal control over the premises, nor render him liable for injuries caused by negligently leaving a pit open.

A married woman may also maintain actions in • respect to her separate estate, and may even bring one against her husband to recover possession of her real property (Minier v. Minier, 4 Lans. 421).

A case in Michigan (Snyder v. The People, 26 Mich. 106 ; S. C., 12 Am. R. 302) is claimed to establish the unity of possession by husband and wife. The husband and wife resided together in the wife’s dwelling-house. Upon an indictment of the husband for arson in burning his wife’s house, it was held that although the property was hers alone, the residence was equally his—the estate was in her, but the dwelling-house, the domus, was in both. The crime of arson by the statute of Michigan is the burning the dwelling of another. So that no conviction under that statute can be had, if the person charged was dwelling in the building, even though the dwelling therein was wrongful. It was enough, therefore, for that case, that the defendant was, when he committed the act, dwelling in the house. But the court says he was rightfully there. How, it does not appear, as the statute in respect to the rights of married women is not stated in the report of the case.

I have examined this question with some care, not that it was necessary to the decision of the case, which, as will be seen, turns upon another and different point, but because of its important bearing upon the construction of the married woman’s act; and for the purpose of illustrating its effect upon the respective rights of husband and wife in respect to the separate estate of the latter, and my conclusion is, that the evidence in this case establishes such an actual occupancy of the premises by Ann McGrath, as would defeat a recovery, if the defendant had not estopped himself by his own acts and declarations.

The complaint alleges that the defendant is in possession, and unlawfully withholds the same from the plaintiff. The defendant, after a general denial and setting upon several defenses, claims to hold under the mortgage to Potter and McGown, which he claims is unpaid, and then avers that “the said supposed possession of the premises by the defendant in the complaint alleged, is a possession by virtue of and under color and authority of “that mortgage,” and not otherwise.

This admission by the defendant of a possession under an adverse title, is enough, it seems to me, to close the door against him, and, taken by itself, is enough to answer the statute. But when taken in connection with his declarations proved on the trial, and the admissions of Ann McGrath, the finding of the court that John McGrath was the actual occupant is fully sustained.

In Fiske v. Bailey (ubi sup.) the action was for injuries caused by falling into an open pit upon the land of the defendant’s wife, upon which they resided ; and to the allegation that he was the “keeper of a public house” thereon, he by his answer denied that he was the keeper of a public house, and the court held that the defendant was concluded by his admission upon the record, and that he could not avail himself of the fact that his wife was the owner of the land, and therefore she and not himself was liable for the injury complained of.

The objection to Ann McGrath’s declarations was, that it was proving a conversation in the absence of her husband. But the object was to contradict her evidence at the trial, after a sufficient foundation had been laid. For that purpose the evidence was proper.

The plaintiff, having shown a legal title in himself, is presumed to have been in possession within the time required by law, no adverse possession for twenty years having been shown (Code, § 81).

The actual possession which the defendant claims to have, commenced only as far back as the year 1865, or, as Chandler, who took possession of the vacant lots, testified,- in 1867, and does not therefore establish an adverse possession ; and the possession under color of title goes no farther back.

One of the other defenses is, that the defendant is in possession under Mary N. Townshend, who claims under the Potter' and McGown mortgage.

As that mortgage was older than the plaintiff’s title, and was proven to have been unpaid, a possession under it would be a defense to the plaintiff’s action. An action of ejectment can not be maintained against a mortgagee in possession (Van Duyne v. Thayre, 14 Wend. 233 ; Phyfe v. Riley, 15 Id. 248 ; Randall v. Raab, 2 Abb. 307 ; St. John v. Bumpstead, 17 Barb. 100).

By regular assignments the mortgage was transferred, and came into the possession and ownership of Mary E. Townshend, under whom it is now claimed the defendant holds.

In examining the question now under consideration, it may be assumed that the defendant holds in some way under Ann McGrath, his wife, who is alleged to be the tenant of Mary E. Townshend.

The proof shows that in October, 1865, a lease of the premises for ten years was executed between John Townshend of the first part, and Ann McGrath of the second part. The lease was not under seal. And the tenant has continued to pay rent during the intervening time.

To connect Ann McGrath with the Potter and McGown mortgage, and to make her possession a possession under it, John Townshend testified that the lease to Ann McGrath was made by him “as the attorney and agent of Mary E. Townshend,” who, he says, at that time claimed to own the lots.

But the McGrath lease was in 1865, and the assignment of the Potter and McGown mortgage to Mrs. ■ Townshend was not until December 17, 1872. And it does not appear that prior to the last date, Mrs. Townshend had any title to or interest in the premises. A mere verbal claim of title would not be sufficient, unless accompanied by some act of ownership. Ho adverse possession unless for twenty years could be founded upon it, and even a possession under such a claim would be that of a mere squatter.

The court did not find as a fact that John Townshend, in executing the lease, acted as the attorney and agent of Mrs. Townshend ; or thát she at the time claimed to own the lots. The finding is that he so testified.

It is, however, sufficient to give the defendant the benefit of the fact.

It was competent, I think, for the defendant to show by parol, that a lease, not under seal, executed in his own name as lessor, was in fact the lease of Mrs. Townshend, he acting as her attorney and agent. The following cases sustain such a proposition : Lynde v. Staats, 1 N. Y. Leg. Obs. 89 ; Union Rubber Co. v. Tomlinson, 1 E. D. Smith, 365; Ide v. Sadler, 18 Barb. 32 ; Briggs v. Partridge, 39 Sup. Ct. R. 339.

The difficulty in giving the defendant any benefit from the evidence, however, is, that even if it was the lease of Mrs. Townshend, the possession under it was not a possession under the Potter and McG-own mortgage. The assignment to her was long after-, wards, and does not relate back, so as to make the letting by her an act of possession under the mortgage.

Besides, the action is not against Mrs. Townshend’s tenant; and the defendant made no claim on the trial that he held under such tenant. He denied holding at all, and insisted he was not in the actual possession of the premises.

Upon the whole, the defendant failed to make out any defense, and the judgment for. the plaintiff was correct.

Judgment affirmed.

Sedgwick, J., concurred.  