
    Walter S. Church, App’lt, v. De Witt C. Schoonmaker and John E. G-allup, Resp’ts.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed December, 1886.)
    
    Ejectment—Adverse Possession—Champerty—Code Civ. Pro., § 373.
    In 1795 V. R. leased to P. a lot of ground for the term of sixteen years at a yearly rent. P. took possession under the lease; afterwards S. came into possession, and, in 1851, conveyed to his son B. S., who paid the arrears of rent in full to 1860. In March of that year he conveyed the premises by quit claim deed to B.; the deed reciting "subjectto the rents and covenants and conditions reserved in the original lease to P.” In March, 1861, B. conveyed a parcel of said premises to defendant S. by warranty deed, making no reference to rent or to the lease to P„ and since then S. has been in possession; the defendant G-. occupying with him at the time of the commencement of this action. Up to that time, February, 1883, S. has paid no rent, and none has,until now, been‘demanded of him. B., without defendant’s knowledge or consent, paid all arrears in rent upon the whole of the premises to plaintiff, July, 1883. Plaintiff acquired the interest of the Y Rs. in the premises by deed February, 1882. Held, that B., at the time he gave the warranty deed to S., was the tenant of the Y Bs; that the lease to P. having expired, the tenancy was from year to year that B. could convey no greater estate than he had, and that, therefore, he conveyed to S. a tenancy from year to year. That the possession of S. was, therefore, by Code Civ. Pro., § 373, the possession of the landlord until twenty years after the last payment of rent when the possession became adverse. That the conveyance to plaintiff was void for champerty, the premises being held under a title adverse to that of the vendor’s at the time of the conveyance.
    Appeal from a judgment entered in favor of the defendants upon the report of a referee. This action was ejectment for non-payment of rent.
    
      Fosendale & Hessberg, for app’lt; W. & G. W. Yowmans, for res’pt.
   Landon, J.

In 1795, Stephen Van Rensselaer leased to Jacob Post a lot of four acres for the term of sixteen years at six pounds rent per annum. Post took possession under the lease. Paul Settle afterwards came into possession, and in 1851 conveyed the premises to his son Edward, who paid up the arrears of rent and in full to January, 1860. On the 26th of March, 1860, Edward Settle, by quit-claim deed conveyed the premises to John J. Becker, the deed reciting “subject to the rents and covenants and conditions reserved in the original lease to Jacob Post.” Becker conveyed, March 29, 1861, a parcel of said premises to the defendant Schoonmaker by warranty deed, without any mention of rent, or of the Post lease, and Schoonmaker has since been in possession; the defendant Gallup also occupying with him at the time this action was commenced. No rent has ever been paid by Schoonmaker, and none demanded of him before February 24, 1888, the date of the commencement of this action. On the 5tli of July, 1883, Becker, defendant’s grantor, paid to the plaintiff the rent in arrear upon the whole four .acres, but without the knowledge or consent of the defendant. The plaintiff, by deed, acquired the interest of the Van Rensselaers in the premises February 1, 1882.

When the plaintiff obtained the deed from the Van Rensselaers, Schoonmaker had held the premises upwards of twenty years under his warranty deed from Becker. Becker, at the time he gave the warranty deed to Schoonmaker, was the tenant of the Van Rensselaers. The term of sixteen years, expressed in the Post lease, had expired long before, and Becker’s tenancy was from year to year. Becker could convey no better title than he held; he therefore conveyed to Schoonmaker a tenancy from year to year. Whiting v. Edmunds, 94 N. Y., 309.

The possession of Schoonmaker was the possession of the Van Rensselaers until Schoonmaker’s tenancy expired. Code Civil Pro., § 373. The relation of landlord and tenant existed. But there had been no written lease between these parties or their grantors, since it could not be said that the Post lease, the term of which had long since expired, was the existing lease; the law made a lease after the expiration of the term of the Post lease and referred to that lease for the conditions and. yearly rent, if no other had been fixed; but other rate of rent had been fixed between Becker and the Van Rensselaers. By section 373, Code Civil Procedure, the tenancy between the Van Rensselaers and the occupant continued “until the expiration of twenty years after the last payment of rent notwithstanding that the tenant has acquired another title or claimed to hold adversely.”

The last rent was paid so far as Schoonmaker is affected, to January, 1860. The landlord therefore, was constructively in possession until January, 1880. At that date Schoonmaker’s holding commenced to be adverse. The adverse possession, therefore, had not continued long enough to bar this action (Code Civil Pro., § 368), if the Van Rensselaers had brought it.

But the reasons given make the deed to the plaintiff, February 1, 1882, void for champerty. The statute provides that a deed shah be void if, when delivered, the lands are in the actual possession of a person claiming “ under a title adverse to that of the grantor.” Schoonmaker had title to the land from Becker, but as we have seen that title up to January, 1880, was constructively the title of a tenant, and he could not start an adverse possession under it until January 1, 1880. He then had a title, not good against the Van Rensselaers’ action of ejectment, but adverse to the Van Rensselaers. Adverse, first, because it did not in fact recognize the Van Rensselaers’ title, but was of the entire fee and hence inconsistent with it (Sands v. Hughes, 53 N. Y., 293), and, second, because by twenty years non-payment of rent, the law did not longer attach any relation of landlord and tenant to it. It is true that Schoonmaker’s title was not superior to the Van Rensselaers’ title, but it had become hostile or adverse to it and was a title, not a mere claim of title. Dawley v. Brown, 79 N. Y., 390; Fish v. Fish, 39 Bar., 513.

The Van Rensselaers could only show paramount title by evidence extrinsic the two titles, and the policy of the champerty act is, as said in Sands v. Hughes, to prevent the party out of possession from transferring his right to litigate that question.

The defendant was not a party to the payment of rent by Becker in 1883, and had no knowledge of it. The appeEant insists that this finding is not supported by the evidence. But Schoonmaker had reason to suppose that there was no rent reserved and Becker had reason to pay without the knowledge of Schoonmaker. Becker certainly could not after he had assumed to convey fuE title, without the knowledge of his grantee, do any act to the prejudice of the title he had given.

Either the landlord or tenant must suffer from the act of Becker, and it would seem that the negligence of the landlord was greater than that of the tenant, since the landlord-knew and the defendant did not, that rent was due, and the landlord was put upon inquiry by the long occupation of Schoonmaker as to tais claim to occupy.

The plaintiff suggests that he should be permitted to amend by substituting his grantors as plaintiffs. Code Civil Pro., § 1501. If the statute of Emitations had barred his action in the name of his grantors this suggestion would have more force.

■ Judgment affirmed with costs.

Bocees, J., concurs.

Learned, P. J.—I concur in the result, but am not willing to say that an action could be successfully maintained against the defendants by the Van Eensselaers.  