
    EMILY F. FORD, Plaintiff and Appellant, v. AUGUST BELMONT and JOHN HOME, as Surviving Trustees of Caroline Slidell Belmont, and others, Defendants; said August Belmont and John Home, as Trustees, and Caroline Slidell Belmont, being Respondents.
    I. Deed by A absolute on its pace, accompanied by an instrument executed BY the Grantee, declaring that the lands were held by him for certain purposes, the last of which was, that after the previous purposes had been accomplished, the money remaining from sales of any portions of the land, and the land remaining unsold, should be divided or sold, as the case might be, in the proportion of two-thirds to B, and one-third to the grantee and C, operation op the deed and
    INSTRUMENT.
    1. Held, that the grantee took a legal estate in one-third, onl/y, the legal estate in the other two-t7drds remaining in the grantor, subject to a power of trust in the grantee, to sell the lands and pay two-thirds of the proceeds to B, and liable to be defeated by the exercise of such power (see Ford v. Belmont, 7 JRobertson, 97-508).
    II. Bankruptcy Act op 1843, Assignee in.
    
      What estate he takes on bankruptcy proceedings instituted by such grantee in the land conveyed to him.'
    1. Not more than the one undivided third.
    
    III. Determination of Claims to Real Property, Proceeding for. 1. Action for, instead of notice, etc., under the statute.
    
    1. When an action is brought, it is governed by the same rules as other actions, and the same defences to defeat the right to relief may be relied on.
    
    3. Possession, Dependant’s Rights to Judgment por.
    1. If he shows a better title than plaintiff, he is entitled to judgment for the possession.
    3. What shows a better Title for this Purpose.—Evidence.
    1. A possession under claim of title in the defendant, and those through whom he derives title, continuing for fourteen years immediately preceding the time when the plaintiff took possession, the plaintiff showing no title except such as may spring out of a possession during three years immediately preceding the institution of the action, and which possession immediately succeeded that of defendant, shows a better title in the defendant.
    Before Freedman and Curtis, JJ.
    
      Decided November 30, 1872.
    The plaintiff desiring to compel the determination of certain claims to some real estate, under the provisions of title 2, chap. 5, part 3 of the R. S., instead of taking the steps prescribed by that title of notice, etc., commenced a civil action pursuant to the Code of Procedure, under the authority of § 471 of that Code.
    The complaint in the action was as follows:
    “ The plaintiff complains:
    “ That she resides in the city of Brooklyn, Kings County.
    “ That she is the owner of the premises hereinafter described, and has an estate in fee therein; that she holds said premises as purchaser, and the source or means by which her right immediately accrued to her is a deed indented, dated the 6th day of October, 1860, and made between William Coventry H. Waddell, assignee, of the first part, and the plaintiff, of the second part; by which said deed the said William Coventry H. Wardell conveyed to the plaintiff, her heirs and assigns, together with other premises, the premises hereinbefore referred to, and hereinafter described.”
    (Here the premises were described.)
    “ That said premises now are, and for three years preceding this present time have been, in the actual possession of the plaintiff; and the defendants unjustly claim title to the before-mentioned premises.
    “ Plaintiff prays that unless the defendants appear in this court, and assert their claim in the manner provided by law, that they and all persons claiming through or under them, may be forever barred from all claim to any estate of inheritance or freehold, or for a term of years, not less than ten, in possession, reversion, or remainder, to the before-described premises.”
    The defendants, August Belmont and John Home, as surviving trustees of Caroline Slidell Belmont, and Caroline Slidell Belmont answered as follows :
    
      “First. The said defendants, upon information and belief, deny each and every allegation in the said complaint contained.
    
      “Second. And the said defendants, for a second and separate defence to this action, say that neither the plaintiff, nor any person under or through whom the plaintiff claims title, or under whose title the said action is prosecuted, or any of them, have or has been seized or possessed of the premises described in the said complaint, or any part thereof, within twenty years before the commission of any act or acts complained of in and by the said complaint.
    “ Third. The said defendants, for a third and separate defence to this action, say that they and the persons under whom they claim title to the premises aforesaid, have been and now are in the uninterrupted use and occupation of the premises aforesaid, and every part thereof, for the period of twenty years and more, and claim, an exclusive title in fee simple thereto.”
    The issues thus formed came on for a trial before one of the justices of this court at a Special Term, without a jury ; who found as matters of fact:
    
      First. In the year 1833 Alexander M. Bruen was seized in fee simple and possession of the premises in question, and other adjoining land.
    
      Second. In May, 1835, the said A. M. Bruen, while so seized and possessed of said premises, and one Matthias Bruen, executed a certain instrument under their seals, whereby they empowered one Matthew Saint Clair Clarke within one month to compromise certain claims of the United States Government, against certain other persons (George and Herman Bruen and John Ludgon), and to sell certain lands, including the premises in question, to enable him to carry out such compromise, and whereby they also agreed that he should have the residue of any money, bonds, notes, or obligations received on such sale beyond the sum necessary to carry out such compromise.
    
      Third. A compromise of the claims mentioned in such agreement jvas within the month therein specified effected by the said Clarke with the United States Government, whereby the latter agreed to accept $200,000 in full satisfaction of such claim.
    
      Fourth. In the year 1835, before the month of July, the said Clarke, and one Robert Dyson and one Dunbar S. Dyson, agreed that the two latter should raise the sum so to be paid to the United States Government as such compromise, and that the said Clarke, in consideration thereof, would allow them one-third interest in such agreement with the said Alexander M. Bruen, and said Dysons raised said sum.
    
      Fifth. In pursuance of such agreement between said Bruens and Clarke, and between the latter and said Dysons, on the 7th of July, 1835, by the assent of said Clarke, the said Alexander M. Bruen, by his attorney, S. W. Bruen, duly constituted for the purpose, conveyed said premises mentioned in said agreement, including the premises in question, in fee simple to said Dunbar S. Dyson.
    
      Sixth. In July, 1835, about the time of the execution of the last-mentioned deed, said Dysons and Clarke executed a certain instrument under seal, whereby they declared the terms upon which said D. S. Dyson held the said premises, which were:
    1. To secure the payment to the United' States Government of such sum of $200,000.
    2. A certain sum ($25,000), paid as a premium for raising such sum, to be charged on the general fund to be raised out of said lots.
    3. Such sum of $200,000 was to be repaid with proper interest.
    
      4. The remainder of the money or lots unsold were to be divided or sold, as the case might be, in the proportion of two-thirds to said Clarke, and one-third to said Dysons, and said Dysons and Clarke also agreed in said instrument that such lots were to be sold or disposed of as might thereafter be agreed on.
    
      Seventh. In July, 1842, said D. S. Dyson presented a petition to the District Court of the United States for the Southern District of New York, duly verified by his oath, in order to obtain his discharge as a bankrupt, wherein he alleged that a certain schedule thereto annexed contained an accurate inventory of his property, rights, and credits of every name and description, and the location and situation of each, and every parcel and portion thereof. In such schedule is set down only one-third residuary interest in the premises conveyed by said Alexander M. Bruen to said Dyson, and reference is made to a note at the end of the schedule. Such note stated that Matthew St. Clair Clarke, of Washington City, was entitled to remaining two-thirds interest arising from any excess after satisfying the amount of mortgage on such property which had been allowed said Clarke in accounting.
    
      Eighth. In August, 1846, the official assignee in bankruptcy for the southern district of New York, conveyed one-third of the premises conveyed to the said D. S. Dyson, including those in question, to one Gordon L. Ford, in fee simple.
    
      Ninth. On the 25th October, 1847, the said Gordon L. Ford made a deed to John L. Stephens, purporting to convey all the right, title, and interest of him, the said Ford, to and in the property conveyed to him by said last-mentioned deed, including the premises in question. 
      Tenth. On the 21st January, 1848, the said John L. Stephens conveyed to Francis Griffin, all his right, title and interest to and in the said premises.
    
      Eleventh. On November 1st, 1848, the said Francis Griffi leased the premises in question to Isaac F. Snow and James S. Anderson for ten years, and thereafter made a deed which was recorded November 9, 1849, purporting to convey to August Belmont, defendant herein, five equal undivided 12th parts of the said premises.
    
      Twelfth. For the purpose of a marriage settlement the said August Belmont subsequently conveyed the said five-twelfths parts of the said premises to Jeremiah Larocque, and thereupon a deed was made between the said Jeremiah Larocque of the first part, August Belmont of the second part, Francis Griffin and John Home of the third part, and Caroline Slidell Perry (the intended wife of said August Belmont) of the fourth part, which deed purported to convey to the parties of the second and third parts, the said five-twelfths interests in said premises. This deed was recorded November 9, 1849.
    
      Thirteenth. By two several deeds made and executed in 1851, the said Francis Griffin reconveyed to John L. Stephens five-twelfths of the premises.
    
      Fourteenth. The said John L. Stephens died after having devised all his property to Benjamin Stephens. This Benjamin Stephens died intestate, May 19, 1856, leaving one son, Benjamin Stephens, and two daughters, Amelia Ann, wife of Edward M. Willett, and Elizabeth, wife of Joseph B. Smith.
    
      Fifteenth. Francis Griffin died in January, 1852, leaving a will, whereby he devised all his property to his wife Mary.
    
      Sixteenth. From 1852 down to November, 1858, Snow and Anderson, the lessees from Francis Griffin, were in the actual possession and occupation of the premises.
    
      
      Seventeenth. About February, 1859, a partition deed was executed between the heirs of Benjamin Stephens, as owners of five-twelfths, the trustees of Mrs. Belmont, as owners of five-twelfths, and the devisee of Francis Griffin, as owner of two-twelfths in said premises, in possession of which they had thus been through their said lessees ; and, by said partition, the particular lots in controversy in this action were - set apart to the trustees of Mrs. Belmont.
    
      Eighteenth. From 1861 to 1865, the said lots in question were in the actual occupation of one Carman McNulty, who had charge of the premises on behalf of the trustees of Mrs. Belmont.
    
      Nineteenth. Down to the time of the trial of this cause, the defendant August Belmont paid the taxes on the lots in question.
    
      Twentieth. In October, 1860, the same official assignee conveyed to the present plaintiff for a nominal sum all of said premises so conveyed to D. S. Dyson by said Bruen, pursuant to an order of the court.
    
      Twenty-first. At the time of the commencement of the action, plaintiff was in the actual possession of said premises, and had been in such actual possession during the whole of the three years immediately preceding.
    And as conclusions of law from the foregoing facts found and decided:
    1. That the plaintiff has failed to establish any title to the premises in question.
    2. That the defendants, August Belmont and John Home, as surviving trustees to Caroline S. Belmont, are entitled to recover the possession of the said premises.
    3. That the said defendants, as such trustees, are entitled,to judgment against the plaintiff for their costs in this action, and for the possession of the said premises.
    On these findings judgment was taken, adjudging that the defendants, Belmont and Home, as surviving trustees of Caroline Slidell Belmont, recover possession of the premises of and from the plaintiff, and also recover of the plaintiff their costs.
    The plaintiff excepted to the finding, and appealed from the judgment to the General Term upon the pleadings, findings, and exceptions only.
    
      John Townsend, attorney, and of counsel for appellant, urged:
    I. This judgment coming up for review upon the judgment roll and exceptions only, this court can take cognizance of the facts as found "by the court at Special Term, and nothing more.' As the deeds referred to are not before the court, their construction cannot be passed upon, and their effects must be taken to be those mentioned in the “ findings.”
    II. .The Revised Statutes provided that a proceeding to compel the determination of claims to real estate should be commenced by the party in possession serving a notice on the claimant to show his claim, and the person so served might plead, in bar of the proceedings, that the person serving the notice had not been three years in possession; this was the only plea allowed. Besides this, the person proceeded against might serve a declaration in ejectment, or he might do nothing, or he might disclaim. These were the only courses open to him.
    Afterwards, by the amendment to the Code of Procedure, 1849, the person in possession was allowed to proceed by action instead of notice, and the law of 1855, amending the Revised Statues, merely adapted the proceeding to a proceeding by action (2 R. S. 313; Laws of 1849, ch. 438 [am’d Code]; Laws of 1855, ch. 511).
    III. Under the provisions of the Revised Statutes, the person proceeded against, after pleading, in bar, that the person serving the notice had not had the requisite possession to maintain the proceeding, and that-issue being found against Mm, migM afterwards serve Ms declaration in ejectment (Tanner v. Tibbetts, 18 Wend. 544).
    IV. Since the Code amd the law of 1855, the defendant, besides pleading the non-possession of plaintiff, may-set up title in himself, in which event his answer of title is new matter, of which the burden of proof is upon him (the defendant), and he can recover only to the extent to which he can establish a title. In such a case, all the plaintiff has to do is to establish the three years’ prior possession ; that shows his right to sue, and then the defendant on his issue of title can recover only on such a title as he can make out. His position is that of a plaintiff in ejectment; he is to recover on the strength of his own title (Hagar v. Hagar, 38 Barb. 96).
    V. It was obviously the intention of the Code, that a party proceeding by action should have the same rights as a person proceeding-by notice. And it was obviously the intention of the Revised Statutes to enable persons in possession to force adverse claimants to show the nature and extent of their claims, and to enforce them by action of ejectment, in which, of course, the plaintiffs would recover only to the extent of title they could establish. The law of 1855 did not change this, but provided for a determination of the right by one proceeding instead of two.
    VI. In this proceeding it is not incumbent on the plaintiff to prove any title nor anything beyond three years’ possession under a claim,—that she did, and the defendants could recover only to the extent of title shown by them (Barnard v. Simms, 42 Barb. 304; Burnham v. Onderdonk, 41 N. Y. 435).
    VII. The plaintiff, by showing possession under a claim, did establish a title to the premises, except the part to which the defendants established an adverse title. Possession is evidence of title.
    VIII. The fact that the defendants showed a prior possession, if it had stood alone, would have entitled them to the judgment awarded. But the defendants went further and showed what was their title; they showed that their possession was under a deed which purported to convey only a third interest in the premises. They showed, therefore, that their prior possession was to the extent only of the interest conveyed. Defendants showed a title out of themselves for all the property, except the part conveyed to Gordon L. Ford, under whom they claimed. The case to which the opinion at Special Term refers is an authority for this (Smith n. Lorillard, 10 Johns. 356).
    IX. It is shown that D. S. Dyson was "bankrupt, and it is shown that the official assignee in bankruptcy conveyed to Gordon L. Ford “ one-third of the premises conveyed to the said D. S. Dyson.” It is not stated that the official assignee was the assignee of D. S. Dyson. The bankrupt law of 1841, § 3, provided that on a person being decreed a bankrupt, his property should, by force of the decree, vest in such assignee as the court should from time to time appoint, and a person was appointed, called a general assignee, in whom in all cases where no special assignee was appointed, the estates of all bankrupts became vested. Even if the court take judicial notice of this appointment of a general assignee, still it is not shown that no special assignee of D. S. Dyson was appointed. Nor can it be known what other estates became vested in that assignee. It is known that Robert Dyson was a bankrupt. Really, as appears by the findings, the common source of title was the official assignee, and for aught that appears to the contrary, he had the entire fee, and conveyed one-third to G. L. Ford, and two-thirds to plaintiff. The assignee did not convey merely one-third of the interest held by D. S. Dyson, but his deeds convey (fols. 29, 36) the one a one-third, and the other all of the premises conveyed to D. S. Dyson. It is a. description or identification of the premises, and not of the interest conveyed. Bnt if the court conclude otherwise, or if the assignee had only the estate of D. S. Dyson, then:
    X. When Dunbar S. Dyson became bankrupt, he had either the entire fee or a sixth of the fee,—a third was reserved to the two Dysons, not to D. S. Dyson alone. The assignee could convey only what D. S. Dyson possessed. The assignee undertook to convey to Gordon L. Ford only “ one-third of the premises conveyed to D. S. Dyson.” If D. S. Dyson had the entire fee, this passed one-third of it. If D. S. Dyson had only a sixth, only one-third of that sixth part (one-eighteenth part) passed by that deed.
    XI. If D. S. Dyson had the entire fee, then the assignee’s deed to plaintiff passed two-thirds of the fee. If D. S. Dyson had one-sixth only, then the deed to plaintiff passed one-ninth of the premises to her.
    XII. If the title was one-third in the two Dysons and two-thirds in Clarke, there was nothing to show that the plaintiff had not Clarke’s title. The Clarkes, defendants, made no defence, and the defendants Belmont and Home could not avail themselves of the defence as to a part of the property to which they showed no title. As was said by a judge of the Court of Appeals : “It seems to me no answer, to say that there are other parties who can successfully contest the plaintiff’s title. It may be that such parties will acquiesce as they have hitherto done. Whether they do or not is a matter of no interest to the defendants, and in neither case can they (the defendants) have any claim to the land” (Craft v. Merrill, 14 N. Y. 464).
    XIII. The statement in an insolvent’s or bankrupt’s schedule cannot contradict or limit his assignment (Elverd v. Foster, 6 Dowl. P. C. 922).
    
    XIV. Where, as in this case, the quantity and quality of the estate of D. S. Dyson rested upon the execution of deeds, the nature of the estate is a conclusion of law, and the declaration of D. S. Dyson cannot change that estate. Declarations as to title can be material only where the title rests in a matter in pais (Brewster v. Stryker, 2 N. Y. 19; Warren v. Leland, 2 Barb. 613 ; Chautauqua Co. B’k v. White, 6 N. Y. 253; Adams Ejectment, 249, note 3.)
    
      Bowdoin, Larocque & Barlow, attorneys, and W. W. Macfarland, of counsel for respondents, argued: First Point. When a bankrupt places his property in the hands of the law to be administered as a trust fund for the benefit of his creditors, he necessarily parts with and conveys that, and that only, in which he had a beneficial interest, and might himself have lawfully appropriated to the satisfaction of his debts, this alone being necessary to the due execution of his trust. A trust estate never passes (Webster v. Cooper, 14 How. U. S. 488; Hill on Trustees, mg. pg. 269, 530; Lounsbury v. Purdy, 18 N. Y. 520; Capeman v. Gallant, 1 P. W. 314; Finch v. Earl of Winchelsea, 1 Pere W. 278; Bennet v. Davis, 2 Pere W. 318 ; Scott v. Lurman, Welles, 402; Carpenter v. Marnell, 3 B. & P. 40; Winch v. Keely, 1 T. R. 619; Dangerfield v. Thomas, 9 Ad. & E. 292; Kip v. Bk. of New York, 10 John. 63 ; Blin v. Pierce, 20 Vt. 25; Ontario Bank v. Mumford, 2 Burt. Ch. 596 ; Hynsom n. Burton, 5 Pike, 496; Brice v. Pollard, 2 Dallas, 60; Kennedy v. Strong, 10 John. 289; Clark v. Minot, 4 Met. 356).
    
      Second Point. The bankrupt never intended to convey, nor did the assignee intend to take, nor did the law require him to take, title to any greater interest in the premises than that specified in the schedule, which was designed to define and describe the property of the bankrupt conveyed to the assignee. This, therefore, was all the assignee had to convey, and all he supposed he had to convey, and he did convey this by the deed to Stephens, leaving no residue of title whatever to pass by his subsequent deed to Ford.
    
      Third Point. It follows that the plaintiff never obtained any title from the assignee in bankruptcy ; that she wrongfully, and without color of title, invaded the lawful possession of the defendants, and that the defendants are entitled to recover possession (Smith v. Lorillard, 10 John. 338; Jackson v. Harder, 4 John. 202; Jackson v. Graham, 3 Cai. 188; Jackson v. Bush, 10 John. 223).
    . Fourth Point. The judgment of the Special Term should be affirmed, with costs.
   By the Court.—Curtis, J.

The learned judge be: fore whom the action was tried, has found that the plaintiff had been in the actual possession of the premises for three years immediately next preceding the commencement of this action, and that her possession was such as to entitle her to maintain this action. The suit is in the nature of a proceeding to compel the determination of claims to real property, pursuant to the provisions of the Revised Statutes, but prosecuted as an action, under the 449th section of the Code. It is consequently governed by the same rules as other actions, and the same defences to defeat the right to such relief may be set up (Peck v. Brown, 26 How. 360 ; Barnard v. Simms, 42 Barb. 304 ; Hammond v. Tillston, 18 Barb. 332).

The cause was tried at Special Term by both parties, on the assumption that the defendants had properly pleaded their title, and on that assumption was there disposed of. The case comes up for review on the judgment roll and exceptions only.

The first question that arises is, whether the plaintiff has established any title to the premises. She claims title by a deed from the official assignee in bankruptcy executed for a nominal consideration, in October, 1860, purporting to convey all the premises, including the ten lots in question, conveyed by Alexander M. Bruer to Duncan S. Dyson, July 7, 1835. Chief Justice Robertson held that the true construction to be given to the deeds under which D. S. Dyson had an interest which passed to the assignee in bankruptcy was, that thereunder the only estate he had, which was capable of passing to an assignee in bankruptcy, was an undivided one-third part (Ford v. Belmont, 7 Rob. 110); and I agree with the judge before whom this cause was tried at Special Term, that this view is substantially the ground taken in the General Term opinion (7 Robt. 522).

It seems to be determined in this court by the construction already given to the effect of these instruments, and of the assignment to the assignee in bankruptcy by D. S. Dyson, that only an undivided third part passed to the assignee, and there appears no reason for putting a different construction on the instruments and the effect of the proceedings in bankruptcy.

This individual one-third of the premises conveyed to D. S. Dyson, including the ten lots in question, having become vested in the assignee in bankruptcy, was by him conveyed, in August, 1846, to one Gordon L. Ford, in fee simple; consequently, all the estate of the assignee in bankruptcy passed to him, and there was nothing left for the assignee to convey to the plaintiff by his deed to her in 1860.

The next and remaining question is, whether the defendants, Belmont and Home, as surviving trustees of Caroline S. Belmont, are entitled to recover the possession of these ten lots.

The plaintiff shows a possession for three years immediately preceding the commencement of this suit.

From 1861 to 1865 the lots in question were in the actual occupation of one McNulty, who had charge of the premises on behalf of the trustees of Mrs. Belmont, and previous to that they were in the possession and occupation of lessees, whose possession and occupation was also through the trustees of Mrs. Belmont, and enured to their benefit. It had been conveyed to these trustees in November, 1847, for the purposes of a marriage settlement.

The plaintiff by her action seeks that the court shall upon the strength of her three-years’ possession, defeat the prior possessory title of the trustees.

Down to the trial of this cause, the defendant Belmont had paid the taxes on the lots.

The trustees had a long-continued possession under claim of title to the entire interests in the premises, and this possession was immediately-prior to the possession of the plaintiff. This prior possession of the trustees had never been abandoned, and whether it was short of twenty years or not, it was of such a character that it must prevail over the subsequent possession of less than twenty years (Smith v. Lorillard, 10 J. R. 356; Jackson v. Livingston, 7 Cow. 636).

The judgment appealed from should be affirmed, with costs.  