
    Carl Timmermann, as Executor, Etc., Plaintiff, v. Isidor Cohn et al., Defendants.
    (Supreme Court, Kings Special Term,
    January, 1911.)
    Deeds — Reservations and exceptions — Repugnancy.
    Foreclosure of mortgages on lands — Foreclosure by action and sale — Parties — Proper defendants — Persons claiming under paramount title or lien.
    Judicial sales — Grounds for refusing to complete title or authorizing discharge from bid and proceedings — Title by adverse possession.
    Where a building covers the entire premises owned. by a man and also a small gore in the rear owned by his wife, the gore being part of the adjoining premises, also owned by the wife, and the building is sold upon a judgment in an action for the foreclosure of a mortgage thereon, the purchaser will not be released from his bid where it is shown that the building has been standing for more than twenty years and, during all that time, has covered the gore in question, access to which could only be obtained through the building.
    
      Where the wife, by a deed in which the husband joined, conveyed her adjoining property by a description including the gore, and the grantee executed a mortgage thereon to a third party, such third party is not a necessary party to an action to foreclose the mortgage on the husband’s building, since, when the mortgage on the wife’s property was executed, the building was held adversely to the mortgagor and his mortgage, so far as it purported to cover the gore, was void.
    And where the grantee of the husband’s building subsequently conveyed vit, expressly excepting the gore which was inseparable from the premises granted and inaccessible save through them, the exception was reppgnant to the grant and void."
    Action to foreclose a mortgage.
    Huberty & Greifenstein, for plaintiff.
    A. Stephen Aaronstamm, for purchaser.
    Leopold Levy, for defendant Cohn.
   Maddox, J.

Action for foreclosure of mortgage covering real property; sale had pursuant to a judgment therein, and the purchaser refusing to complete because of certain asserted objections to the title tendered, two motions are made, i. e., one by the purchaser to he relieved from her hid, to be repaid the ten per cent, of the sum hid, also her incidental expenses and for such further relief as she may be entitled to, and the other by the plaintiff for a resale, pursuant to said judgment, of said mortgaged premises.

The purchaser presents three grounds of objection, all of which relate to a gore-shaped piece of land forming a part of the rear of the premises described in said mortgage and judgment.

From the papers, including the survey, it appears that all of said mortgaged premises .are covered by a brick building, the wills of which are party walls and run along the exterior lines of said gore; in other words, all of said gore is embraced within the walls of and is in fact physically covered by a brick building three stories high, fronting upon and known as Nos. 6'6>5 and 667 Broadway, a leading business thoroughfare in that section of Brooklyn.

The mortgaged premises, excepting said gore, were conveyed to one John F. Battermann in February, 1873; the premises immediately -adjoining on the south and east thereof, and then including said gore, were conveyed in July, 186-5, to Sbphia Battermann, wife of said John F.

The brick building, as it now stands on said mortgaged premises, and said party walls embracing said gore, were erected or reconstructed about the year 1875, and at the time of the commencement of this action-—-notice of Us pendens was filed April 20, 1910 — had been standing about thirty-five years. The building was then in the possession of the owner, John F. Battermann, and that possession- and the use of the whole building, which, as said before, included said gore and all of it, was certainly visible and open. F'rom the physical conditions existing during all that period of time the fact that the gore was covered by a part of the building and that the possession of the building included possession of the gore was most notorious, since access to any part of the gore was necessarily through that building only, not from the outside.

The executor of John F. Battermann, deceased, in Hay, 190i6, conveyed the premises described in the mortgage foreclosed to one Isidor Oohn, who executed and delivered the mortgage in question to secure a part of the purchase money for such conveyance.

It appears that Sophia B-attermann continued the owner of the premises so conveyed to her in 1865 until December 28, 1889, when, her said husband joining with her therein, she conveyed the game by the same description -as in the deed to -her to William Battermann, their son, which deed was recorded December 3-0, 1889.

In the deed to William Battermann it is expressly declared that the “ description is intended to include and this deed to convey in fee simple, and does hereby include and convey, all -the right, title -and interest of the said Sophia Battermann, of the first part, in and to any real estate which she may have owned in her own name and right and has not heretofore conveyed on the plot-of ground bounded by Ewen -street, Varet street and Broadway, -being the same premises conveyed” to her hy the deed of 1866 before referred to, and the covenants, including that of warranty, are by Sophia alone.

The purchaser’s counsel has not called attention to or asserted that there are any conveyances of record by Sophia of any part of the premises conveyed by the deed of 1865, recited in the deed to William. If there were no such conveyances by her, and in the absence of proof to the contrary we may, I think, assume there were none, then is not that declaration significant when we consider the fact, of the erection by her husband of his adjoining building upon and over the gore of land in question, .an encroachment of over seven feet on one line of that gore and about four feet along another ? But that can he no aid to us in solving the questions presented, since it is no evidence of any grant to him, or of any permission, assent or acquiescence by her in or to such encroachment by him upon her land. It furnishes no proof that he held adversely or in hostility to his wife’s title.

Indeed, so long as coverture continues neither the husband nor the wife can invoke as against the other the doctrine of adverse possession. 1 Am. & Eng. Ency. of Law, 820; 1 Cyc. 1005; Berkowitz v. Brown, 3 Misc. Rep. 1. And attention may here again be called- to the fact of John F. Battermann’s joining with his wife in the conveyance, to their son of the wife’s property hy a description which includes the gore in question, an act in itself, in my opinion, negativing any intention on his part of holding adversely to his wife.

But a different situation is presented as to the grantee, William Batterm-ann. As to Mm the holding was adverse and hostile from the time title to the adjoining property vested in him; the physical occupation of the gore was of itself notice to him of an adverse possession and he knew it, since he took title with full knowledge of the fact that the gore was included within the walls of his father’s building, and also the length of time the building and the walls thereof had stood.

It appears that William has hy affidavit, verified Septem- • her 14, 1910, and now in the possession of Mr. Thomas E. Pearsall, the referee herein, and a copy of which affidavit is appended to plaintiff’s papers, made oath that he recollects when the buildings Hos. 665 and 667 Broadway were erected by his father and “ that the same were so erected or built more than thirty years prior to the date of ‘ his ’ affidavit, and that to the best of ‘ his ’ recollection it was some time during the year 1875and, further, “that the walls at such time erected are the same as now upon said premises; that the original walls were never destroyed by fire or otherwise.”

Ho better evidence can be looked for or had than that furnished here by the person against whom the adverse possession is claimed, and when his declarations and statements ■are against his interest and in support of the assertion of an open, visible and notorious adverse possession.

And, again, there is the affidavit of Mr. Huberty, verified September 15, 1910, as to the erection of said building and the walls thereof in 1875 and the fact that the same are now as they were at that time.

At the time of conveyance -to William, his father1, John F. Battermann, was the owner and in actual possession of the building then and still standing upon the premises in question here; his claim of title was to the whole thereof, and that of necessity included the land on which it stood; he and his successors in title have .so continued in uninterrupted and, so far* as appears here, in undisputed possession of said building and premises until this time, a period of more than twenty-one years, and more than twenty years had elapsed before the commencement of this action.

Ho claim of title founded on a written instrument, judgment or decree is made here, and it may well be urged that there is no evidence of any oral claim of title by John F. Battermann or of his successors in the record title; but that is not essential, since ¡as held in Barnes v. Light, 116 N. Y. 34, 39: “A claim of title may be made by acts alone, quite as effectively as by the most emphatic assertions.” And again: “ Possession, accompanied by the usual acts of ownership, is presumed to be adverse imtil shown to be subservient to the title of another.” Id. 40.

This has heen the recognized rule since 1826, when LaFrombois v. Jackson, 8 Cow. 589, was decided. See also Hindley v. Manhattan R. Co., 185 N. Y. 353, 355, 356; Campbell v. Holt, 115 U. S. 620, 623; Baker v. Oakwood, 123 N. Y. 16, 27-30, and cases cited.

Adverse possession depends on the intention of the person, in possession to hold adversely to every other title, and that intention can at all times be best ascertained by the acts of the person in possession.

Here we have proof of the adverse and hostile occupation and possession of the piece of land included within the gore, accompanied with the usual acts of ownership of property in a large and populous city, continuously and without interruption for a period of more than twenty years, and any title and right of entry which William Battermann may-have had are lost.

The bar of the Statute of Limitations (Code Civ. Pro., §§ 365, 366, 371, 372) has run and the purchaser’s first ground of objection is without merit, since, as held in Baker v. Oakwood, supra, “ a clear adverse possession for twenty years constitutes a title which a purchaser at a judicial sale may not refuse.”

The claim that the Germania 'Savings Bank is a necessary party to this action and has a mortgage lien upon the gore piece of land ‘before referred to is not well founded. That mortgage was prior to the one here f oreclosed and was given ■by said William Battermann and his wife to the bank in 'September, 1898, at which time the land included in said gore was, and for more than eight years previously had been, held and actually occupied and possessed by said John F. Battermann adversely to the said mortgagor, William Battermann, as is evidenced by said William Battermann’s affidavit before referred to. The provisions of section 226 of the Beal Property Law (Laws of 1896, ohap. 547) were then controlling, and hence, as against the “person claiming under a title adverse to that of the ” mortgagor the mortgage was void. The mortgagor has not recovered possession,, and there has been and there is now no estate or lien in or against said premises in favor of the Germania Savings Bank. See De Garmo v. Phelps, 176 N. Y. 455; Real Prop. Law (Consol. Laws, chap. 52), § 260.

The purchaser also contends that if good title as against William Battermann by adverse possession has been acquired, there is still outstanding the title of 'one Charles Katz to the gore in question.

The premises described in the mortgage were conveyed to Katz in August, 190'6, subject to said mortgage. In March, 1907, he conveyed the same to Lesinsky, excepting therefrom so much, however, as was by metes and bounds included in said gore. In June, 190-8, Lesinslcy’s executors conveyed the same premises with the same exception to said Katz, who conveyed, by deed of the same date as the above, the same premises to the defendant Maurice Hosier, but again excepting therefrom said gore.

It is to be noticed that Katz expressly excepted the gore in question from the grant; that exception by him was not necessarily an assertion of title in himself, nor can it inure to the benefit or advantage of another person. That which was excepted was inseparable from the grant and inaccessible save through that which was granted and conveyed by him; it was inconsistent with the grant, which was covered in its entirety by the three-story brick building which, together with the land on which it stood, had been so conveyed by him. The substance of the grant was the realty and its appurtenances, and the exception being repugnant to the grant is, therefore, void.

The intention of the parties to the deed must be gathered from the language thereof, and an exception in favor or for the benefit of one not a party to the instrument is void. Blackman v. Striker, 142 N. Y. 555, 561.

That which was excepted cannot be physically enjoyed by the grantor or result in any honest benefit to him, if to be availed of it would be in derogation of his grant, which included the building, and hence the exception is in effect as large as the substance of the grant; the subsequent clause in the Katz deed of conveyance must, therefore, be held ineffectual to cut down or lessen the grant contained in the prior clause, or to lessen the effect of that grant.

It, therefore, follows that -this last objection must be resolved 'against the purchaser, and it is unnecessary .to give consideration to the other questions presented.

Motion by the purchaser to he relieved from her bid and repaid the moneys expended by her is denied, with ten dollars costs of motion.

Motion by the plaintiff for a resale is granted, but let the purchaser have twenty days wherein to complete her purchase, if she so desires, in which event the direction for a resale will be vacated .and set aside.

Let the original affidavits of Mr. Huberty, verified 'September 15, 1910, and William Battermann, verified September 14, 1910, and the original survey he filed as a part of the papers on the motion to he relieved from the hid.

Let an order covering both motions be settled on notice, the counsel for the respective parties to previously agree upon the recitals.

Ordered accordingly.  