
    Lucy A. Dunham, Resp’t, v. John Townshend et al., App’lts.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed January 14, 1890.)
    
    1. Title—Adverse possession.
    Where a mother has the title to a farm, which is cultivated and used by a son, she living at another place, but frequently visiting him, and there being constant communication between them, these facts are entirely inconsistent with a claim that the son’s possession was adverse to his mother’s.
    .2. Same—Evidence—Sheriff’s deed.
    On the trial plaintiff introduced in evidence a sheriff’s deed, but omitted to produce and read the judgment on which the sale was made on which it was executed. On the argument in this court he produced a certified copy of the judgment roll. Held, that this court may for the purpose of sustaining the judgment receive it, and as it is regular in all respects, its production removes the former objections to the sheriff’s deed.
    3. Same.
    Evidence that a city has levied assessments on the lots in question for expense of grading and has disclaimed ownership therein, and that they were above the ordinary daily tide, justifies the court in holding that the city had no title in them.
    4. Same.
    Where it was shown by uncontradicted evidence that ordinary high water mark at the time of plaintiff’s original grantor was below the level of the lots in controversy, title in the city cannot be predicated on the fact that the lots were originally within the lines of the ordinary flow of the tides.
    Appeal from a judgment of the general term of the first judicial department, affirming a judgment in favor of the plaintiff entered upon a verdict directed by the court.
    
      John Townshend, app’lt in person ; Abel Crook, for resp’t.
    
      
       Affirming 6 N. Y. State Rep., 671.
    
   Brown, J.

This action was brought to recover the possession of an undivided one-half of five lots of land, situated on the southerly side of Ninety-ninth street in the city of New York.

The action was defended by the defendant Townshend, the other defendants being in the occupancy and possession of the land under him. Possession was demanded from these defendants before the commencement of the action, and refused. 'Townshend did not in his answer allege any ownership in the property.

On the trial it appeared that he had taken a deed of an undivided one-sixth of the property, but it was not shown that either of his grantors had any title whatever in or to the property attempted to be conveyed.

The objections now made to the judgment consist wholly in defects alleged to exist in the plaintiff’s title. The earliest conveyance produced by the plaintiff was a deed from Margaret McGowan to Edward Sandford, dated January 30, 1835. In this deed the grantor was described as “ widow of Andrew McGowan, deceased, and the only child and heir at law of Samson Benson, deceased.”

The testimony showed that the original farm which included the five lots which are the subject of this suit was known as the “ Benson” farm, and was owned by Samson Benson in his lifetime. Margaret McGowan was Samson’s daughter and heir. She had a son Andrew, the father of Henry P. McGowan who was a witness on the trial.

As early as 1825, Andrew McGowan resided at One hundred and fifth street and Second avenue upon this farm. He cultivated the tillable land and used the marshes and salt meadows for pastures and to cut grass therefrom. His occupation continued until 1833, when the farm was rented out. It was sold by Margaret McGowan in 1835.

During her son’s occupation of this part of the farm Mrs. McGowan lived at her homestead at McGowan’s pass, now a part of Central Park. She visited her son frequently at the dwelling-house on the farm, and there was constant communication between them.

The objection is made that possession of the farm by Mrs. McGowan was not shown. We think this evidence sufficiently established possession of the land in Mrs. McGowan. The relations shown to exist between the mother and her son are entirely inconsistent with the claim that the son’s possesion was adverse to his mother’s title, and show that he held under her and subordinate to her rights. Edwin Sandford conveyed the property to Charles Henry Hall.

On the trial the plaintiff introduced in evidence a deed from Jacob Acker, late sheriff of the city and county of Hew York,” to Isaac Adriance. This deed recited the issuing to the sheriff of an execution out of the superior court of the city of Hew York, at the suit of the president, directors and company of the Mechanics’ Bank of the City of Hew York, plaintiff, against Charles Henry Hall, defendant, with the usual directions to seize and sell the premises thereby conveyed; the sale thereof to one George Haus, and the redemption of the land by Isaac Adriance, the holder of a subsequent judgment against said Hall. It described and purported to convey the land in such a manner as to include the lots in controversy.

An objection strenuously urged on the trial, and at the general term, against this deed as a conveyance of the title, was based on the omission of the plaintiff to produce and read in evidence the judgment on which the execution under which the sale was made was stated to have been issued.

On the argument in this court the respondent produced a certified copy of the judgment roll. The appellant objects to its reception on the ground that it is improper for this court to act upon information thus obtained.

While the production of record evidence is never allowed in an appellate court for the purpose of reversing a judgment, it is sometimes permitted for the purpose of sustaining a judgment. Stilwell v. Carpenter, 62 N. Y., 639 ; Day v. Town of New Lots, 107 id., 157; 11 N. Y. State Rep., 361. This has frequently been decided in respect to records of judgments, exemplification of bankrupt discharges, certificates of naturalization, etc. Burt v. Place, 4 Wend., 591; Ritchie v. Putnam, 13 id., 524; Williams v. Wood, 14 id., 127; Jarvis v. Sewall, 40 Barb., 449; Dresser v. Brooks, 3 id., 429. Evidence of this character is received by the appellate court for the reason that¡ being in its nature incontrovertible, it would be idle to send the case back for a new trial for the sole purpose of admitting it. We think we may, therefore, receive and examine the judgment roll, and, as it is regular in all respects, its production removes the objection heretofore urged to the sheriff’s deed, and also the objection arising out of the general assignment of Hall for the benefit of creditors, as this assignment was of a date subsequent to the docketing of the judgment under which the sheriff’s sale was made.

The next objection taken to the plaintiff’s title was that the land in dispute was below original high-water mark, and the title, therefore, was in the city of New York. There was no substantial dispute as to the facts on this question. The only witness called by the defendant on this subject was James E. Sewell, a city surveyor. He testified that Second avenue was graded between 1850 and 1853, and that before that work was commenced he examined the locality, and that at the point where Ninety-ninth street intersected Second avenue high water line was a little over a foot above the level of the marsh, and that the lots in controversy were about thirteen inches below high-water mark. He knew nothing about the locality prior to the examination of the ground preparatory to grading Second avenue.

As tending to contradict the effect of this testimony, it appeared that the city had levied an assessment on the lots in controversy for the expense of grading Second avenue, and had disclaimed any ownership therein. It further appeared, without contradiction, that prior to 1835 high-water mark was east of Second avenue at Ninety-ninth street, and that the meadows, which included the lots in question, were above the ordinary daily tide, and were not covered by water except during occasional and severe easterly storms.

Upon this testimony we do not think it was error for the court to hold that no title to the land was shown in the city. The important question was not where high-water mark was in 1850, or what effect the filling in and grading of streets over the meadows may have had on the flow of the tide, but was, rather, where ordinary high-water mark was during the occupancy of the farm by McGowan. This was shown by uncontradicted evidence to have been below the level of the lots in controversy. Title in the city could not therefore be predicated on the fact that the lots were originally within the line of the ordinary flow of the tides. This view of the case renders unnecessary any reference to the deed from the city to Perry, any further than to say that it was competent to show that the city made no claim to the land in dispute, and had conveyed to Perry, as a trustee for the plaintiff, for the purpose of removing any possible objection to the plaintiff’s title. As the city had no title to the land, none passed to Perry by the deed, and it is "of no importance in this action whether the conveyance from Perry’s heirs to the plaintiff was sufficiently proven or not Title and possession were thus established in the plaintiff’s grantors, and that title, by proper and sufficient conveyance was shown to have become vested in the plaintiff.

This was all prior to defendant’s entry, and was sufficient to enable plaintiff to maintain ejectment against the defendant, who was a mere intruder, and whose entry on the lots was without a shadow of right, and threw upon him the burden of establishing a better title than that of the plaintiff. Carleton v. Darcy, 90 N. Y., 566-573; Stevens v. Hauser, 39 id., 302.

As already stated, he neither alleged or gave evidence of any title to the land. His entry was wrongful and his occupancy that of a trespasser.

There was ample evidence of actual ouster of the plaintiff and a denial of her rights by the defendant.

We find no error in the record of the trial and the judgment should be affirmed, with costs.

All concur.  