
    The People of the State of New York, Respondent, v. Harry La Prairie and Others, Appellants.
    Third Department,
    July 1, 1915.
    Real property — ejectment — action toy State to recover possession of “Gospel and Schools” lot and “ Literature ” lot so designated under chapter 67 of the Laws of 1786—title of State.
    In an action of ejectment by the State to remove defendants from the possession of a “Gospel and Schools” lot and a lot “for promoting . literature,” which had been so designated upon maps for the sale to unappropriated State lands, under chapter 67 of the Laws of 1786, the defendants did not claim title in themselves, nor connect themselves with the title, but sought to defeat the plaintiff’s claim upon the ground that its title was defective. Evidence examined, and held, that a judgment in favor of the plaintiff should be affirmed.
    Appeal by the defendants, Harry La Prairie and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hamilton on the 12th day of September, 1912, upon the decision of the court after a trial at the Pulton Special Term.
    The judgment awarded possession of certain property to the plaintiff in an action of ejectment.
    
      George N. Ostrander, for the appellants.
    
      Egbert E. Woodbury, Attorney-General [A. Frank Jenks, Deputy Attorney-General, and John O. Bates of counsel], for the respondent.
   Kellogg, J.:

The property recovered is the gospel and school lot and the literature lot, containing about 1,280 acres, in township 19, Totten & Grossfield’s Purchase, in Hamilton county. The defendants relied upon adverse possession, but abandoned that claim upon the trial and defended the action upon the theory that they were squatters or mere possessors of the land. They did not claim title in themselves nor connect themselves with the title, but sought to defeat the plaintiff’s claim upon the ground that plaintiff’s title was defective.

Chapter " 67 of the Laws of 1786 provided. for the sale of unappropriated State lands, and directed that upon the maps for such sale theré should be laid out in each township a lot marked “Gospel and Schools” and another “for promoting literature,” and continued: “Which lots shall be as nearly central in every township as may be, and the lots so marked shall not be sold, but the lot marked ‘ Gospel and Schools ’ shall be reserved for, and applied to, promoting the Gospel and a public school or schools in such township, and the lot marked ‘ for profnoting literature ’ shall be reserved to the People of this State, to be hereafter applied by the Legislature for promoting literature in this State.” These lots were accordingly designated on said maps. This act in no manner affected the' title of the State to the lots marked for promoting literature, nor of the other lot until the town leased or conveyed them in the manner provided for by law.

July 15, 1856, the People patented'these lands, with a large acreage of other lands in the vicinity, to the Sackett’s Harbor and Saratoga Railwa y Company, the title to which, however came back to the People December 19, 1891. The railroad title having returned to the People, they occupy the same position with reference to the land as though the patent had never been made. There is no record in the Secretary of State’s office of any other grant of these lands.

Section 13 of chapter 711 of the Laws of 1893 authorized the Comptroller to advertise a list of wild, vacant and forest lands to which the State holds title from tax sales or otherwise, and declared that after such advertisement was completed such lands “shall be deemed to be in the actual possession of the Comptroller, and such possession shall be deemed to continue until he has been dispossessed by the judgment of a court of competent jurisdiction.” The defendant Addie La Prairie having acquired, August 6, 1897, an assignment of the interest of one Wilbur, who was formerly in possession of these lands as a squatter, succeeds to no greater rights than he had. The conveyance was a quitclaim of “ all his right, title and interest in and to the cottage and all buildings and improvements and rights of possession of the property at what is known as Tyrell Pond, in the town of Indian Lake, Hamilton county, Hew York, being the same premises occupied by B. W. Wilbur at such pond for about 8 years prior to his death in 1896.” The consideration was $150. The conveyance undoubtedly was intended to cover the cottages and improvements and not the land itself. The People having held the title to the literature lot are deemed to have been in possession of it pursuant to the notice, and the defendant has established no claim to it as against the People. The title to the gospel and school lot is substantially the same. It appears that both lots, or some parts of them under various descriptions, were conveyed by the State Comptroller by tax deed in May, 1828, to Peter Smith; August 20, 1840, to Cornelia S. Cochrane; March 30,1842, to G-errit Smith, and August 1,1845, to Gerrit Smith. The appellants urge that the designation of a lot for gospel and school purposes divested the State of its title thereto, and the town became the owner, and also that by reason of the several tax sales the plaintiff’s title to both lots fails.

Designating these lots upon the map as a gospel and school lot, and a literature lot, did not divest the State of title nor give the town any title to the land. (Raquette Falls Land Company v. Buyce, 108 App. Div. 67.) The designated town authorities had the right to lease the gospel and school lot, or upon a vote of the inhabitants of the town at town meeting could sell and convey it, the proceeds therefrom creating a fund to take its place, the fund to be invested and reinvested in loans, secured by bond and mortgage upon unincumbered real property worth double the amount loaned. (R. S. pt. 1, chap. 15, tit. 4; 1 R. S. 497-499, §§ 1-7.) We need not refer to the later statutes relating to gospel and school land. The title of the State could not be divested by the local authorities except by vote of a town meeting, and the proceeds of the sale would be a permanent fund invested for school purposes in the manner indicated. There is no record of the town showing that any such sale was ever made or that any proceeds from such sale were ever invested. Clearly there was no authority for selling these lands for the payment of taxes, or of taxing them, while they remained the property of the State, or remained gospel and school or literature lots for the use of the town or State for such purposes. (Wells v. Johnston, 171 N. Y. 324; Raquette Falls Land Co. v. International Paper Co., 41 Misc. Rep. 357; 94 App. Div. 609; affd., 181 N. Y. 540.)

It is suggested that the lots having been taxed is some evidence that they were sold by the town, but the fact that the records of the town show no sale or investment of proceeds is evidence to the contrary. We carniot, for the purpose of defeating the plaintiff, assume, in the absence of all proof, that the gospel and school lot was sold in the manner permitted by law.

The State having a clear record title of the property and the defendants having the mere naked possession of it, under section 13 of chapter 711 of the Laws of 1893, the State must be considered as having been in the legal possession of the lots since the publication of the notice and the defendant by virtue of her naked possession is seeking to defeat the legal title of the party legally in possession by urging that there is a' defect in the title without connecting herself with that or any other title. The court properly ruled that upon the facts shown the defendant could not rely upon her alleged defense and that the plaintiff was entitled to possession.

The judgment is, therefore, affirmed, with costs.

Judgment unanimously affirmed, with costs.  