
    MARY N. TOWNSHEND, Appellant v. ELLEN L. THOMSON, et al., Respondents.
    
      Ejectment—Adverse possession—Foreclosure of mortgage and the estate and interests of parties not made parties in the action of foreclosure.
    
    This action was brought to recover the possession of real estate from which, as alleged, the plaintiff had been unlawfully ejected by the defendants. The facts appearing on the trial and the points claimed by the respective parties are fully set forth in the opinion of the court.
    Held, that, upon the whole case, the plaintiff failed to establish title in herself, by adverse possession, or any right to possession superior to that of the defendants.
    Another view of the case also favors the defendants, namely: The defendants are in possession and have at least the rights of mortgagees in possession. Upon the sale under the first foreclosure of Price v. Scudder, the premises were bought by Edward Price, who immediately entered into possession. Although the foreclosure was defective the mortgage was good, and Price became at least a mortgagee in possession. He was expressly authorized by the terms of the mortgage to take possession on default, and the presumption is warranted that he went into possession with the consent of the mortgagor. That he continued in possession until June 26, 1855, the date of his death, is admitted in the brief of the attorney for appellant. The defendants claiming under Edward Price by mesne conveyances, became subrogated to the rights of Price as mortgagee in possession. The master’s deed on foreclosure passed to the purchaser the mortgagee’s right to the debt, and the defendants are entitled to all the rights of Edward Price by virtue of his possession as mortgagee, as well as those derived by virtue of the conveyance from the master. For these reasons ejectment will not lie against defendants. The remedy of the plaintiff was in equity. In every aspect of the case, as made by the plaintiff, the complaint was properly dismissed.
    Before Sedgwick, Ch. J., Freedman and McAdam, JJ.
    
      Decided May 2, 1892.
    Appeal from judgment entered in favor of defendants upon a dismissal of the complaint at the trial.
    
      John Townshend, for appellant, argued:
    I. The motion to dismiss the complaint was in fact on the ground that plaintiff had failed to prove that defendants withheld possession of premises. The reply to which is that the ansiver admits defendants withheld possession from plaintiff. Defendants had driven off plaintiff’s tenant Wieck, by serving him with a squatter notice, and had given leases of the lot to Eiser, March 30, 1888, January 5,1889 ; they were, therefore, proper parties defendant. It was not necessary to give any proof of ouster nor of an actual entry. It sufficed for plaintiff to show a right to the possession. Siglar v. Van Riper, 10 Wend., 414.
    II. At the time of Price’s foreclosure, 1845, the title, subject to the mortgage, was in Waddell as assignee of Williams. Price conveyed to Scudder. Scudder conveyed to Williams. Williams was bankrupt and Waddell was his assignee. Upon one being declared a bankrupt all his property, thereupon, and by operation of law, vested in an assignee appointed by the court for the purpose, and such assignee was vested with all the rights, titles, powers and authority to sell, manage and dispose of the estate, and sue for and defend the same, subject to the orders of the court. No suit commenced by or against the assignee abated by his death or removal from office, but might be prosecuted or defended by ''bis successor. The Bankrupt Act was repealed March 3, 1843, but the repealing act provided “ This act shall not affect any proceeding in bankruptcy commenced before the passage of this act,” * * * “but every proceeding may be continued to its final consummation in like manner as if this act had not been passed.” “It is unquestionable that upon the bankruptcy of Williams his title passed to his assignee.” Landon v. Townshend, 112 N. Y., 98.
    III. The discharge of Williams as a bankrupt did not affect the assignee’s title. The Bankrupt Act provided that every bankrupt who should bona fide surrender his property and otherwise conform to the requisition of the act “ shall be entitled to a full discharge from all his debts, * * * and such bankrupt shall at all times be subject to examination * * * in all matters relating to such bankruptcy and his acts and doings and his property and rights of property, which in the judgment of such court are necessary and proper for the purposes of justice. Bankrupt Act, 1841, ch. 9, §4.
    IV. “ The position of an assignee in bankruptcy in respect to the estate of the bankrupt is in many respects analogous to that of an executor in respect to the estate of a decedent. He holds the assigned estate in trust for the bankrupt and his creditors.” Van Sachs v. Kretz, 72 N. Y., 555. The statute does not run as to creditors’ claims against the estate of the bankrupt not barred at the time of the adjudication. Ib., 556; Hill v. McDonald, 34 N. Y. St. Rep., 814. In this case the court, having jurisdiction of the estate, in effect, decided that the proceeding was pending by making an order on the assignee to sell, and further by advertising for claims and declaring and paying a dividend. The jurisdiction of a court is not exhausted by the rendition of its judgment, but continues until the judgment is satisfied. Wayman v. Southard, 10 Wheat., 32, repeated; Lemaster v. Keeler, 123 U. S., 389; Covill v. Heyman, XVII. The Reporter (Boston), 546, in U. S. Supreme Ct. Where property of a debtor is brought within the jurisdiction of a court, its jurisdiction and control of the property does not cease upon the death of the debtor. Rio Grande R. R. v. Gomila, 132 U. S., 478.
    V. The United States Court in bankruptcy had jurisdiction of the proceedings in bankruptcy and of the bankrupt’s estate, and it duly made an order for the sale in 1869. (1) The order of the court was a matter within its jurisdiction and cannot be attacked collaterally. (2) Law was a bona fide purchaser for value at the sale. No wrong-doing is •imputed to him, and he took the bankrupt’s title. (3) Law conveyed to plaintiff in 1873. Plaintiff took possession in 1875. (4) Plaintiff was in possession by her tenant Wieck, when he was driven off by defendants in August, 1886. This established plaintiff’s right to recover, and there was nothing shown to defeat that right.
    VI. The attempted foreclosure by Price in 1845 did not affect assignee’s title, nor give any title to Price. As neither Williams nor Waddell was a party to this foreclosure, neither was bound by it, and Price after the foreclosure as before was simply mortgagee. Winslow v. Clark, 47 N. Y., 261; Gage v. Brewster, 31 Ib., 218; Robinson v. Ryan, 25 Ib., 324. The owner of the equity of redemption in the mortgaged property is therefore a necessary party to a suit for a foreclosure of a mortgage, and if the suit proceeds without his being made a party, his title is not affected by the decree.” Landon v. Townsend, 112 N. Y., 93; Moore v. Appleby, 108 Ib., 241. Waddell not having been made a party to the action the foreclosure was a nullity as to him. Gage v. Brewster, 31 N. Y., 218; Miner v. Beekman, 50 Ib., 344. “ The purchaser at a mortgage sale ineffectual to pass the title acquires thereby title to the mortgage,” and such purchase is a mortgage in possession. Minor v. Beekman, 50 N. Y., 345; Winslow v. Clark, 47 Ib., 263.
    VII. The entry by Price was as mortgagee. He was mortgagee in possession and nothing more. Williams in 1842 confessedly had the “ legal tide ” to the premises and “was presumed to be in the possession thereof ” and “ the occupation by another person is deemed to have been under and in subordination to the legal title.” 2 R. S., 293, § 8; Code of Pro., § 81; Code of Civ Pro., § 368. “ In the absence of an adverse possession the possession follows the legal title.” Talcot, J., Wood v. Squires, 1 Hun, 483; revd. on another point, 60 N. Y., 191. Where a party has title his possession is presumed, and the occupation by any other person is presumed to be in subordination to the legal title. Woodruff, J., Stevens v. Hauser, 39 N. Y., 302.
    
      Foster & Thompson, for respondents, argued :
    I. Plaintiff has totally failed to prove a title to the premises in question, either of record or by adverse possession, (a.) The burden was on the plaintiff to prove the allegations of the complaint. The plaintiff had the affirmative on the trial, the defence being practically a general denial. It was incumbent upon her to establish the truth of the allegations of the complaint by competent evidence sufficient for that purpose. In other words it was necessary for her to make a prima facie case. Stearns v. Field, 90 N. Y., 640. “ The plaintiff must at the beginning by evidence competent and sufficient if uncontradicted, establish the truth of his averment.” Southwick v. First Natl. Bk. Memphis, 84 N. Y., 420; Neudecker v. Kohlberg, 81 Ib., 286. “ It is necessary for the plaintiff to deduce title from some source before he can recover, and until he shows a permanent title the defendant is entitled to a verdict, and this without producing the evidence on which his title is based. Possession is always regarded either as prima facie evidence of title, or as a species to title itself and a party cannot be deprived of possession by any one hut the lawful owner. This is but another way of stating that the plaintiff must recover on the strength of his own title and not upon the weakness of that of his adversary.” Sedgwick & Wait on Ejectment, § 800, citing Henry v. Rechert, 22 Hun, 294; Cobb v. Lavalle, 89 Ill., 331; Holbrook, v. Nichol, 36 Ib., 168; Boylan, ads. Meeker, 28 N. J. L. R., 297; Love v. Sims, 9 Wheat., 515; Jackson v. Harrington, 9 Con., 85; 2 Greenleaf on Evidence, §331. “Plaintiff can only recover on the strength of his own title. Proof of a cloud on title is not enough. The failure of defendant to show title cannot avail.” Abbott Trial Evidence, p. 690., citing Brady v. Hennrion, 8 Bosw., 528; Tyler on Ejectment, 72; Watts v. Lindsay, 7 Wheat., 158. (b.) The plaintiff has failed to show a record title. The alleged deed from William C. H. Waddell to George Law conveyed no interest in the premises. (1) The assignee had divested himself of any title 23 years before the attempted conveyance to Law. The assignee filed a report February 8, 1845, in which he reported that certain assets of Williams, among which the premises in question and the Landon property next door are enumerated, were, “ in his opinion, of uncertain value, and ought to be disposed of at once without incurring further expense or delay respecting them.” The premises in question, including- the Landon property, were thereafter sold by the assignee Waddell, at auction, March 23, 1846, for the sum (probably) of $13, and the assignee, in his account of the assets and sales of Williams, which is in the custody of the plaintiff’s attorney, charges himself with this amount, as received, on the sale of this property. There is a very great probability that the person who purchased at this sale subsequently conveyed his interest to Edward Price, who was then in possession of the premises under the sale on foreclosure of Price v. Scudder, and proof to this effect was introduced on the trial of Landon Townshend, although not available in this case. At all events Waddell was absolutely divested of all interest in or control of the property, and absolutely divested of any right to sell the same. His interest and powers were spent as far back as 1846. (2) At the time of the subsequent attempted sale and conveyance to Law, Waddell had no interest in the premises independently of the sale in 1846. The only interest Waddell ever had in the premises was as Williams’ assignee in bankruptcy, and at the time of the attempted sale in 1869, that interest had reverted to the bankrupt or his heirs, the purposes for which the trust was created having expired.
    II. The defendants were entitled to judgment in their favor, (a.) By reason of the failure of the plaintiff to prove title. The plaintiff having utterly failed to make out a title in herself, the defendants were entitled to a verdict, and it was unnecessary for them to produce the evidence on which their title was based. Sedgwick and Wait on Ejectment, supra. [b.) The defendants proved a perfect record title. The only alleged defect in the record of the defendants is in the foreclosure of the mortgage from Scudder to Price. But this defect, if it were a defect, does not enure to the benefit of the plaintiff. She must recover on the strength of her own title solely, and she can reap no advantage from any defect in the title of the defendants. Sedgwick & W. on Ejectment, (supra); Abbott’s Trial Evidence (supra). The defendants are also entitled to the benefit of the presumption that where a title has been accompanied by possession for a long term of years missing links in the title will be presumed in order to quiet the title. Wharton on Evidence, § 1153; Greenleaf on Evidence, (14th ed.), 46 note a; Doe v. Phelps, 9 Johns., 169; Clements v. Machebœuf, 92 U. S., 418; Oldham v. Wooley, 8 B. & C., 22; Roscommon’s Claim, 6 Cl. & F., 97.
   By the Court.—Freedman, J.

This is an appeal by the plaintiff from a judgment entered upon the dismissal of the complaint at the trial.

The action is brought by the plaintiff upon the claim that on June 1,1887, she was seized of an estate in fee and was lawfully in possession of the premises in suit consisting of a lot on the southwest corner of 117th street and 8th avenue in the city of New York, and that while plaintiff was in such lawful possession on that day the defendants unlawfully entered upon the premises and ejected the plaintiff therefrom, and have ever since withheld possession from the plaintiff, wherefore plaintiff demands judgment that she recover possession, etc.

The answer admits that the defendants at the time alleged were and still are in possession, and that they withheld and do withhold possession from plaintiff, and alleges that the defendants have been and are lawfully in possession, and denies the other allegations of the complaint.

Upon the trial before a judge of this court and a jury the substantial facts proved were as follows :

The premises in question with other property were owned in 1835 by one Edward Price. His title is admitted by both parties to have been good. He became seized of the premises in 1827.

In 1835 Edward Price conveyed the premises hy deed to John Scudder, taking from Scudder a purchase money mortgage thereon. In 1838 John Scudder conveyed to Ebenezer L. Williams. In 1843 Ebenezer L. Williams, while the owner of the premises, was adjudicated a bankrupt upon his own petition under the Act of 1841, and William 0. H. Waddell was duly appointed his assignee.

In 1845 a bill was filed by Edward Price to foreclose the purchase money mortgage made hy Scudder, and in 1846 a decree of foreclosure and sale was entered, the premises sold and conveyed by deed of the master in chancery to Edward Price. But neither Williams nor Waddell were made parties to the foreclosure.

In 1855 Edward • Price died intestate, leaving him surviving as his only children and heirs at law Artemas M. Price, Edward H. Price, James C. Price, Andrew J. Price, Julia Ann Coulter and Sarah M. Coddington. In February, 1858, Artemas M. Price and Caroline, his wife, filed a bill against the other children and héirs-at-law of Edward Price for a partition of the premises in question with others. Decree was entered and the premises sold, hut no conveyance was made.

In December, 1858, for the purpose, as may be assumed, of clearing the record title and foreclosing the rights of Williams’ assignee and the dower rights of Williams’ wife, a hill was filed by William Coulter, as administrator of Edward Price, against Rhoda Williams and William C. H. Waddell, alleging the execution of the mortgage, that Waddell had become seized of the interest of Seudder in the premises, the previous foreclosure suit of Price against Seudder, and asking for a decree of foreclosure and sale. Waddell appeared in the action and on the consent in writing of his attorney, a decree of foreclosure and sale was entered, and the premises were sold thereunder and bought by Julia Ann Coulter, and conveyed to her by the referee by deed dated January 28, 1859. But this foreclosure and sale were not effectual for the purpose of divesting the title of Waddell, as assignee of Williams, if any was left in him, because the suit had proceeded against him individually, and not in his representative character as assignee, and he had not appeared therein in his representative character. This has been decided in Landon v. Townshend, 112 N. Y., 93.

Julia Ann Coulter, by various conveyances, acquired all the interest of all the other heirs-at-law of Edward Price, and thereafter, viz., in April, 1863, she and her huband conveyed the premises in question to Timothy Donovan. In May, 1863, Donovan conveyed to Adams. In 1864 Adams conveyed to Wkitbeck. In 1867 Wkitbeck conveyed to Andrew. In 1868 Andrew and wife conveyed to William Thomson by deed dated March 9, 1868.

William Thomson died seized of the premises in question January 13,1872, leaving him surviving his widow Ellen L. Thomson, and John W. Thomson, William A. Thomson and Ernest A. Thomson, his only children, who are defendants in this action, and who, upon the death of William Thomson, became and still are seized of all the right, title and interest in the premises which the said William Thomson had in his life-time. William Thomson paid all the taxes and assessments imposed upon the premises from the time of his purchase until his death, and his executors and the defendants have paid all taxes since that time.

When the premises were sold and conveyed to Edward Price in 1846 under the decree of foreclosure and sale in Price v. Scudder, Price at once took possession under the master’s deed, and maintained his possession continuously down to his death in 1855, and his heirs and their grantees have continued in possession from that time down to the present, unless the proof offered by the plaintiff established the contrary.

The burden was upon the plaintiff to prove the allegations of her complaint, and she can recover only on the strength of her own title or of her own right to immediate possession.

The title claimed by the plaintiff rests (1.) upon an instrument in the form of a conveyance by William C. H. Waddell as assignee of Williams to George Law¿ executed March 1, 1869, and (2.) upon an instrument in the form of a quit claim deed executed by Law to the plaintiff in this action January 10, 1873. Of these two instruments, that executed by Law was, under the evidence in the case, absolutely void under the statute as against the defendants, because given while the property was in the possession of a person claiming under a title adverse to that of the grantor.

Moreover, Waddell, as assignee, had no title or estate left in 1869 which he could convey, and no order of the court authorizing or directing him to convey could invest him, with a title or an estate if he had none. He had divested himself of all title and estate he ever had, twenty-three years before the attempted conveyance to Law. On February 8, 1845, he filed a report, as assignee, in which he reported that certain assets of Williams, among which the premises in question and some adjoining property, which may be styled the Landon property, were enumerated, were, “in his opinion, of uncertain value, and ought to be disposed of at once without incurring further expense or delay respecting them.” In due course of proceedings the premises in suit, including the Landon property, were thereafter sold by him, as assignee, at auction, March 23,1846, for a small sum, and in his account of the assets and sales of property of Williams, which is in the custody of plaintiff’s attorney, the assignee charges himself with the amount, as received, on the sale of this property. There is a very great probability that the person who purchased at this sale subsequently conveyed his interest to Edward Price, who was then in possession of the premises under the sale on foreclosure in Price v. Sc udder, but, at all events, Waddell, as assignee, was absolutely divested of all interest in or control of the property, and absolutely divested of the right to sell the same a second time. This being so it is not necessary to determine whether the second sale in 1869 was or was not procured by fraud practiced upon the court.

A further consideration is that the only interest Wad-dell ever had in the premises, was as the assignee of Williams in bankruptcy, and that, independently of the sale of 1846, that interest under the authorities cited by respondents’ counsel, before the time of the attempted sale in 1869, may be deemed to have reverted to the bankrupt or his heirs, the purposes for which the assignment had been created having expired, the bankrupt having been duly discharged in 1843, and no debts having been proved against his estate prior to 1869. The alleged debt advanced by Yard, the receiver, in 1869, was barred by the statute of limitations, and, being so barred, the assignee could not for his own purposes create a liability of the estate where none existed.

The proceedings in the Superior Court and in the TJ. S. District Court brought by plaintiff to bolster up the alleged title which came through Waddell as assignee, do not bind the defendants in this action, because they were not made parties to the proceedings.

■ It having been sufficiently shown that the plaintiff could not, at the trial, succeed upon the strength of her record title, it remains to be seen whether she established a right to possession superior to that of the defendants.

It was shown that in 1875 the plaintiff caused a board fence to be built around the premises. But it was also shown that the fence disappeared about one year thereafter. The effect of the building of this fence was fully considered by the Court of Appeals in Landon v. Townshend, 41 N. Y. State Rep., 419, and the decision was adverse to the plaintiff now here.

It was further shown that hi 1878, the plaintiff repaired the curb and gutter stones in front of the premises. As this involved not even an entry, it is not evidence of adverse possession.

And finally it is claimed that in 1883, the plaintiff leased the whole plot, consisting of the premises in suit and the Langdon property, to one Wieck, who occupied the lot in suit for about four years. The lease was never recorded and it was not shown that the defendants ever had any notice of it, but it was shown by one of plaintiff’s own witnesses that Wieck’s retirement from the possession of the premises was peaceable and that he disclaimed any right to occupy the premises as against the defendants.

Upon the whole case the plaintiff wholly failed to establish title in herself by adverse possession or any right to possession superior to that of the defendants.

There is still another aspect of the case. The defendants are in possession and have at least the rights of mortgagees in possession. Upon the sale under the first f oréelo jure of Price v. Scudder the premises were bought by Edward Price, who immediately entered into possession. Though the foreclosure was defective, the mortgage was good, and Price became at least a mortgagee in possession. He was expressly authorized by the terms of the mortgage to take possession on default, and the presumption is warranted that he went into possession with the consent of the mortgagor. That he continued in possession until June 26,1855, the date of his death, is admitted in the brief of the attorney for the appellant. The defendants, claiming under Edward Price by mesne conveyances, became subrogated to the rights of Price as mortgagee in possession. The master’s deed on foreclosure passed to the purchaser the mortgagee’s right to the debt and the mortgage security, and the defendants are entitled to all the rights of Edward Price in the premises as well by virtue of his possession as mortgagee as by virtue of the conveyance from the master. For these reasons ejectment will not lie against the defendants. The remedy of the plaintiff was in equity.

The exceptions taken by the plaintiff in the course of the trial require no specific discussion, because they do not affect the final result.

In every aspect, therefore, that can be taken of the case as made by the plaintiff, the complaint was properly dismissed.

The judgment appealed from should be affirmed, with costs.

Sedgwick, Ch. J., and McAdam, J., concurred.  