
    Clarence R. Conger, App’lt, v. John Treadway, Resp’t.
    
      (Court of Appeals, Second Division,
    
    
      Filed March 22, 1892.)
    
    Cemetebies—Advebse possession.
    A cemetery was owned by eleven tenants in common. In 1854 a power of attorney was given by eight of them to G-. to sell and convey the lots, which he acted under, and after his death B., his son-in-law, acted as attorney for, and with the knowledge of the owners for several years and until his death. He collected money and paid the liabilities of the owners, kept a book of sales, etc., on which appeared a memorandum of a sale to defendant of the lot, and a credit of part payment. Defendant had more than twenty years before buried bis daughter in the lot and afterwards his wife and .five of his grandchildren, and he cared for it every year. Held, that defendant had title by adverse possession sufficient to defeat an action, of ejectment.
    
      Appeal from a judgment of the general term, second depart; inent, affirming a judgment entered on a verdict directed by the court.
    
      Irving Brown, for app’lt; .George W. Weiant, for resp’t.
   Haight, J.

This action is in ejectment to recover a plot of ground known as Lot No. 192 of Mount Eepose Cemetery in Haverstraw, N. Y.

The cemetery was formerly owned by eleven persons as tenants in common. In the month of April, 1854, a power of attorney was executed by eight of the tenants in common to John S. Gurnee and Isaiah Milburn, to grant, bargain and sell the premises in question for such sums or prices as to them shall seem meet, and. to execute, acknowledge and deliver good and sufficient deeds and conveyances for the same. Daniel E. Weed, one of the owners, did not join in this power of attorney, and it appears that Isaiah Milburn, one of the attorneys so appointed, took no active part therein. Gurnee undertook the execution of the power and continued to sell lots as long as he was physically able to attend to .the matter, and thereafter and after his death E. T. Blanche, his son-in-law, acted as the attorney and controller of the owners for the space of about eight years and until his death.

The plaintiff claims to be the owner by reason of a purchase under a sale made in an action to partition among the original owners or- their heirs or devisees."

Upon the trial the defendant was permitted to testify that he purchased the lot in question of Gurnee, agreeing to pay therefor the sum of $72.50; that he entered into possession and buried his daughter therein more than twenty years before this action was brought, and has since, buried his wife and five grandchildren therein. ’

Inasmuch as" Gurnee was one of the tenants in common and at the time this action was tried was deceased," there may be some question as to the right of the defendant to testify to the personal transaction he claims to have had with him. We shall, therefore, for the purposes of this action disregard that evidence and from that which remains determine whether the trial court properly directed a verdict.

It is contended that Blanche had no authority to act for the . owners in selling burial lots, but it appears that he did so act for a number of years with their knowledge; that he collected money , and paid the liabilities of the owners; kept a book in which the sales of lots were entered, with the amount paid, etc. These facts fully appear from the testimony of McKenzie, the secretary of the association, and from the widow of Blanche. On the book kept by Blanche of the sale of the burial lots there appears the following entry:

“April 22, 67, John Treadway, 192... 21 x 23... 483... $72.50.”

From which we understand that on April 22, 1867, he sold, the defendant Lot No. 192, being twenty-one feet by twenty-three feet, amounting tp four hundred and eighty-three square feet, for $72.50. On-November 1, 1869, the defendant paid Blanche $30.47 as part payment for Lot No. 192 and took his receipt therefor, and-at the same time agreed to pay the balance of the purchase money upon the production ana delivery of a deed thereof. No deed has ever been tendered him or demand made for the balance of the purchase money.

■ Under these facts the trial court directed a verdict for the defendant, and we think properly.

It is evident from the facts that Blanche acted as the attorney of the owners with their knowledge and consent. The land, as we have seen, was devoted by its owners to burial purposes. It was not convenient or practicable for them all to act in the sale of lots, and so it was thought advisable to appoint some one to act for them. And whilst-there is a failure to show express authority for Blanche to sell, still-we think under the evidence the inference of necessity exists that they had given him such authority. It follows that the defendant is rightfully in possession. If, as is. claimed, his contract of purchase is still executory, then under the agreement he was entitled to the possession until the production and delivery to him of a deed of the premises. The failure of the owners to tender a deed has not put the defendant in default. As we have seen, the lot was more than twenty years ago occupied by the defendant for the burial of his dead. On it rest his daughter, his'wife and five of his grandchildren. The lot was improved, graded, sodded, and every year he has caused flowers to be planted ther.eon. His possession has been as exclusive as the nature of the circumstances would permit for upwards of twenty years. He entered under a claim of title through purchase, and if his contract were not executory his title by adverse possession would be complete.

The judgment should consequently be affirmed.

Judgment "affirmed, with costs.

All concur, except Brown, J., not sitting. 
      
       Affirming 28 St. Rep., 745.
     