
    CLARA J. BROWN, Respondent, v. SALLY ALLEN, as Administratrix, and RICHARD M. ALLEN and JAMES E. ALLEN, as Administrators of the Goods, Chattels and Credits of EMORY ALLEN, Deceased, Appellants.
    
      Eviction — dispossession, essential iherreto— application of the rule to wild lands — in the ease of the State.
    
    As a general rule the possession of the grantee, under a conveyance with warranty of title, must he disturbed before an eviction can be established, but in the case of unoccupied or abandoned property thi§ rule, in its full strictness at least, does not apply.
    Where a grantee of wild, uninclosed and unimproved land, abandons the property and the possession thereof, and the State becomes the owner of the title to the land by purchasing the same at a tax sale thereof, the State is, under the Forest. Preserve act (chap. 283 of 1885), and, by the exercise of the authority conferred upon the Forest Commissioners by the statute, constructively in possession thereof.
    Appeal by tbe defendants from a judgment, entered in the office-of the clerk of the county of Lewis on the 28th day of December, 1889, in favor of the plaintiff, for the sum of $4,330.16, after a trial before the court and a jury at the Lewis County Circuit, at which. a verdict in favor of the plaintiff was directed by the court.
    
      II. W. Bentley and E. Mg Garriy, for the appellants.
    
      G. D. Adams, for the respondent.
   Merwin, J.:

This action is brought to recover a balance due upon a bond dated May 24, 1870, executed by Emory Allen and Newton Northam fi> Marietta L. Brown and assigned by her to the plaintiff on the 2d of January, 1873. It is conditioned for the payment of $2,500 as follows : Eive hundred dollars and interest on the first day of January-then next; $1,000 on August 1, 1871, and $1,000 on August 1, 1872, with interest. The plaintiff admitted a credit of $1,051.99' as of July 18, 1874, and the judgment is for the balance. Emory Allen died February 26, 1886, and Northam died January 6, 1885.. This action was commenced June 19, 1889.

At the date of the bond Marietta L. Brown, the obligee therein,, .and Edward A. Brown, conveyed to' Allen and Northam, the obligors, ■certain lands in the town of G-reig in the county of Lewis, consisting of six parcels, containing in all acres, for the consideration ' as stated in the deed of $3,171.40. The bond in suit and a mortgage upon the premises conveyed were given back for a portion •of the purchase-money. The deed contains a covenant on the part •of the grantors “that the premises thus conveyed in the quiet and peaceable possession of the said parties of the second part, their heirs and assigns, they will forever warrant and defend against any jierson whomsoever lawfully claiming the same, or any part thereof.”

The defense in this action is based on this covenant. The claim of the defendants is that at the time of the sale the premises were •subject to the lien of taxes previously assessed, by virtue of which, through subsequent sales and conveyances, paramount title was .acquired by the purchasers, who took possession, and actually or ■constructively evicted the grantees, Alien and Northam.

The main questions on this appeal are, first, whether the evidence given by defendants showed paramount title; and, second, whether there was actual or constructive eviction. With a view •of showing paramount title the defendants offered in evidence .several deeds from the comptroller of the State to the people of the State, given upon tax sales made in pursuance of the provisions of •chapter 427 of the Laws of 1855. These deeds covered the premises in question, and had been duly recorded in Lewis county for more than two years. One of them, covering several parcels of the land .in question, purported, in substance, to be based on taxes assessed prior to the conveyance to Allen and Northam. It is not clear that the other parcels were sold for such taxes. This, however, is not here important, as the question here is whether the defendants have .any remedy as to any part of the premises. The claim of the plaintiff is that these deeds furnished no evidence of the power to ■.sell. The claim of the defendants is that the deeds, presumptively .at- least, show title in the. State. No evidence was given by the plaintiff to the contrary.

By section 65 of the act of 1855, as amended by chapter 209 of 1860, it was provided that such deeds “shall be presumptive •evidence that the sale and all proceedings prior thereto, from and including the assessment of the land, and all notices required by law to be given previous to'the expiration of fire two years allowed to-redeem, were regular according to the provisions of this act, and all laws directing or requiring the same, or in any manner relating' thereto.” By chapter 448 of the Laws of 1885, the section above-referred to was further amended, so far as the county of Lewis and. several other named counties were concerned, by providing that all. such conveyances, after having been recorded for 'two years in the-office of the clerk of the county in which the lands conveyed thereby are located, shall, six months after this act takes effect, be conclusive evidence that the sale, and all proceedings prior thereto, from and including the assessment of the land, and all notices required by law to be given previous to the expiration of the two years-allowed by law to redeem, were regular and were regularly given,, published and served according to the provisions of this act, and all laws directing or requiring the same, or in any manner relating-thereto.” In People v. Turner (117 N. Y., 227) it was held, with reference to a comptroller’s deed given in 1881, and similar to those’ given in this case, that the act of 1885 was constitutional, and that-the deed was conclusive, even as to an omission of the assessors amounting to a jurisdictional defect (p. 234). In Wood v. Knapp (100 N. Y., 109) it was held that the burden of proof was upon the-party questioning the title of a grantee in a comptroller’s deed given under the act of 1855, of showing by affirmative evidence that some material requirement of the statute had been omitted or defectively performed in the proceedings under which the sale was consummated.

We must, therefore, assume, I think, that the defendants made, at-least, a prima facie showing that the title of Allen and Northam to the premises, or some part of them, was lost by reason .of liens, prior to the deed to them.

The court below, in ordering a verdict for the plaintiff, held that-no sufficient eviction was shown. Was this correct? The deed to Allen and Northam seems not to have been recorded. There is-evidence in the case tending to show that after 1871 they never had anything to do with the premises; that in 1874 their agent-, upon being applied to by the agent of the plaintiff to have their deed recorded, replied that there was no object in getting the deed recorded, that the title wasn’t good as the lands had been sold for taxes. The tax sale was in 1871, and the deed from the comptroller--to the people of the State of 183 acres of the premises is dated February 1, 1875, and recorded May 30, 1877. The other deeds ■were later. In 1885, by chapter 283 of the Laws of that year, the Forest Commission was created. By section 7 of that act all the lands then owned by the State, or which might thereafter be ..acquired by it within certain counties, one of which was the county of Lewis, were constituted the “ Forest Preserve.” The lands so ■designated were to be kept forever as wild forest lands, and not to be sold or leased except in certain special cases. The care, custody, ■control and superintendence was given to the Forest Commission, .aad prosecution for all trespasses or injuries was provided for. The defendant offered to show that the lands in question were included within the Forest Preserve, but this being objected to by the plaintiff was excluded. The report of the Forest Commission, made for the year 1885 to the legislature in pursuance of the act, and which showed that the specific lots in controversy here were included in the Forest Preserve, was also excluded.

As a general rule, the possession of the grantee must be ■disturbed before there can be an eviction. But in case of unoccupied or abandoned property the rule in its full sense at least does not apply. In regard to such a case it is said, in St. John v. Palmer (5 Hill, 599), that it is not necessary that the covenantee should be evicted by legal process, it is enough that he has yielded the possession to the rightful owner, or that such owner has entered, the premises being vacant, and taken possession. In ■that case the premises had been sold upon a decree of foreclosure ■of a prior mortgage. No actual possession had been taken by the purchaser, but he had, after his title became perfect, offered to sell the premises and had paid taxes. It was said that, as there was no -actual possession in any one, no formal act was necessary for the purpose of giving the purchaser the complete enjoyment of his legal rights; the constructive possession was transferred to the purchaser and he afterwards exercised acts of ownership. It was held that there was such an eviction as amounted to a breach of the covenant. In the same case Judge Cowen was of the opinion that the •covenant was broken the moment the title passed to the purchaser ■on the foreclosure sale, and that an action by the covenantee would lie, although the purchaser had done nothing by way of asserting his title. In a similar case ( Wood v. Forncrook, 3 Thomp. & Cook, 303), it is said by Mullin, P. J.: Tbe owner of tbe legal title to uninclosed and uncultivated land is presumed to ,be in possession, as possession in law follows tbe title. To entitle a plaintiff to recover damages for tbe breach of tbe covenant for quiet enjoyment an eviction must be proved, or be may, in tbe event of bis title being divested by a superior title, surrender possession to tbe owner of tbe superior title or notify bis grantor that be relinquishes all claim to said premises, or be may show that tbe owner of tbe superior title has offered them for sale.”

In tbe present case tbe evidence would justify tbe finding that at or before tbe acquiring of tbe title by tbe State, tbe grantees, Allen and Nortbam, abandoned tbe property and were not from that time in possession. Tbe lands were apparently wild lands, uninclosed and unimproved. The State having become tbe owner of tbe title, was constructively in possession, and its ownership was publicly asserted by its Forest Preserve act of 1885, and by tbe acts of its Forest Commission under tbe authority given by the statute. Tbe acts of this commission were competent evidence on tbe subject. Tbe State, in order to perfect and complete its possessory right, was not bound to seek out and personally notify tbe prior owners who were not in possession. Nor were Allen and Nortbam, or those representing them, in order to perfect their remedy on tbe covenant, bound to enter into possession and subject themselves to the pains and penalties of trespassers under tbe Forest Preserve act. There was, in substance, a surrender to paramount title effectively asserted.

In Schulenherg v. Harriman (21 Wall., 44) it was held that an act of the legislature directing tbe possession and appropriation of property, or offering it for sale or settlement, was equivalent to an entry for tbe purpose of taking advantage of tbe breach of a condition in a previous grant.

In McGary v. Hastings (39 Cal., 368) it is, in substance, said that tbe mere passage of a law making public land liable to entry was such an assertion of the title of tbe government as authorized an abandonment by a vendee under an invalid title.

In Green v. Irving (54 Miss., 450; S. C., 28 Am. Rep., 360) it was held that a grant of land by tbe State, while holding tbe paramount title, is such hostile assertion of such title as justifies persons in possession under defective titles in treating it as an eviction, abandoning possession and suing their covenantors. These cases are quite pertinent to the question here. The Forest Preserve act, supplemented by the evidence above referred to as offered and rejected, was sufficient to show a hostile assertion by the State of its title and a constructive eviction under the circumstances of this case.

We are, therefore, of the opinion that the court below erred in holding that there was no eviction sufficient to give the defendants a remedy on the covenant.

The judgment must, therefore, be reversed.

Martin, J., concurred; Hardin, P. J., concurred in the result.

Judgment reversed upon the exceptions and a new trial ordered, with costs to abide the event.  