
    Michael P. Holland, Ex’r, Resp’t, v. Arthur Brown, App’lt.
    
    
      (Court of Appeals,
    
    
      Filed December 12, 1893.)
    
    1. Deed—Reformation—Fraud.
    An action to reform a deed on the ground that through fraud practiced on the grantor it was made to convey more land than was intended, can only be maintained as against a subsequent purchaser of the premises for a valuable consideration upon proof of actual notice to defendant of the facts, or such facts and circumstances as would put a prudent man on his guard, and from which actual notiee may he inferred and found.
    3. Same—Notice—Possession.
    The possession which will he equivalent to actual notice to a subsequent purchaser must be an actual, open and visible occupation, inconsistent with the title of the apparent owner by the record; not equivocal, occasional or for a special or temporary purpose, nor inconsistent with the title of the apparent owner by the record.
    Appeal from judgment of the supreme court, general term, second department, affirming judgment in favor of the plaintiff.
    
      John A. Deady, for app’lt; Henry A. Montfort, for resp’t.
    
      
      Reversing 44 St. Rep., 936.
    
   O’Brien, J.

This action was brought by the testatrix of the present plaintiff in her lifetime for the purpose of reforming a deed executed by her on the 9th day of June, 1869, of certain lands under water on the shores of Jamaica bay, at Rockaway Beach, to one Henry Eckert, which the defendant afterwards purchased at a sale upon judgment and execution against the Oceanus club. The following facts were found or proved upon the trial: About the time when the deed was made, Eckert, in behalf of o the club which was about to become incorporated, applied to the decedent to purchase a small piece of her water front off the northerly corner of her'property, adjoining lands which the club had purchased in order to build a dock for use in connection with the club house, and to furnish access to the channel of the waters of the bay. The parcel which the grantee desired to purchase was pointed -out and designated by stakes or marks upon the shore, and the owner agreed to sell it for fifty dollars. The grantee subsequently prepared a deed running to himself and presented it to the owner, representing that it conveyed the parcel designated and which she intended to sell, and she executed it without reading it or requiring it to be read, supposing that it embraced only the lands designated and intended by her to be conveyed. The deed in fact embraced a much larger tract of land, and included practically all of her water front, and the trial court found, upon sufficient evidence, that the conveyance was procured by fraud. She was ignorant of the fraud thus practised upon her until about two years before the commencement of the action, which was May 4, 1889. Eckert conveyed all the lands embraced in this deed to the club of which he was a member, or rather to another member, but for the use of the club, January 21," 1871, and on the 19th of May following this member conveyed to the club, and the latter entered into possession of the parcel designated and intended to be conveyed and built the dock thereon, and continued to enjoy it for the uses and purposes originally intended.

On the 4th of April, 1878, all the lands described in the deed were sold upon a judgment and execution against the club, and the defendant became the purchaser for $1,850, and on the 29th of November, 1879, he received the sheriff’s deed of the same. During the pendency of this action the owner and original plaintiff died, and the plaintiff, as executor, was substituted in her place as plaintiff. As already observed, there was proof given at the trial sufficient to warrant the finding that the deed was procured from the decedent by fraud, but in order to maintain the action it was necessary to go farther and show that the defendant when he purchased had either actual or constructive notice of the claim. It is not pretended that any proof was given which would warrant a finding that the defendant had actual knowledge, though it has been found that he acquired his interest in the premises with notice of the plaintiff’s rights. The only way that the learned counsel for the plaintiff attempted to sustain this finding on the argument in this court was upon the theory that when the defendant purchased the plaintiff’s testatrix was in possession of the lands improperly embraced in the deed, and her possession was notice to the defendant of her rights. It is quite true that actual possession of land is sufficient notice to all the world of the existence of any right which the person so in possession is or may be able to establish. Phelan v. Brady, 119 N. Y., 587 ; 30 St. Rep., 256.

The plaintiff, however, sought to establish a right to the lands in question in hostility to a recorded title, and, therefore, she was bound to show actual notice to the defendant of the facts upon which her claim was founded, or such facts and circumstances as ■would put a prudent man upon his guard, and from which actual notice may be inferred and found. The possession which will be equivalent to actual notice to a subsequent purchaser, must be an actual, open and visible occupation, inconsistent with the title of the apparent owner by the record; not equivocal, occasional or for a special or temporary purpose; neither can it be consistent with the title of the apparent owner by the record. Cook v. Travis, 20 N. Y., 400; Brown v. Volkening, 64 id., 76; Pope v. Allen, 90 id., 298.

The contention of the plaintiff is that, notwithstanding the deed to Eckert, and from him to the club, which were duly recorded, and embraced all the land claimed by the defendant under his purchase upon the sheriff’s sale, yet she remained in possession of all except the small parcel which she agreed and intended to convey, and was so in possession at the time of the sheriff’s sale, and, therefore, the defendant is chargeable with notice of all her rights. Seymour v McKinstry, 106 N. Y., 230; 8 St. Rep.. 580; 11 id., 760.

The difficulty is that there is no proof in the record to show that she was then in possession. It is claimed that she owned the uplands and was in possession of them by actual occupation, residing thereon. The map does not show where her house or uplands are, or what relation they bear to the lands in question, and there is no other proof in the record to show any actual possession by Mrs. Holland at the time of the sale on the execution of the lands in question. It may be that a person in possession of lands on the shores of navigable waters, which are fixed and designated by visible monuments, fences or other boundaries, is • also in possession of the shore and such portion of the land under water as is appurtenant to Ms uplands and the subject of private ownership, but there is no proof in the record that would permit the application of such a principle in this case, as it does-not appear how the uplands are related by their situation or boundaries to the lands in question. When a party proposes to purchase the water front of a farm on the shores of navigable waters, which farm is in the actual possession -of a third person, and is designated by visible boundaries or monuments at or near the shore, such possession is notice of his rights with respect to the whole farm including the water front appurtenant thereto and held by him as private property. He who is in the actual possession of a part of his farm and uses the rest, whether forest or waste land, or land under water, which is the other part, and connected therewith, as other men use such lands, is adjudged by the law to be in possession of the whole. Altemus v. Long, 4 Penn. St., 254.

Where a known farm or a single lot has been partly improved, the portion of the farm or lot that has been left not cleared or inclosed, according to the usual course and custom of the adjoining country, is deemed to have been occupied for the same length of time as the part improved and cultivated. Code, § 870. In the case of lands upon the banks of navigable waters, we know that portions of the farm or lot are not actually inclosed or cultivated, but. are so connected with the uplands that are, as to bring the whole under the possession of the person who actually occupies the inclosed and cultivated parts. The manner in which lands on the sea shore are inclosed or occupied may be of such a character as to render the question of possession one of fact. Trustees, etc., Town of East Hampton v. Kirk, 84 N. Y., 220 ; Jackson v. Halstead, 5 Cowen, 216; Becker v. Van Valkenburgh, 29 Barb., 319. It is possible that upon another trial the plaint-i£f may be able to give proof, either of actual notice to the defendant of her rights in the land, or actual possession by her of such a character as to charge the defendant with notice of her rights.

The judgment should be reversed and a new trial granted, costs to abide the event.

All concur.  