
    George MacCulloch Miller, as Executor of and Trustee under the Last Will and Testament of Susan O. Hoffman, Deceased, Respondent, v. Joseph H. Warren and Dorothea Warren, Appellants, Impleaded with Others.
    
      Occupation of land under a sale for a term ofyea/rsfor non-payment of a municipal assessment — the title in fee is not disturbed thereby — the possession of the purchaser during the term of the lease and its continuance thereafter is subordinate thereto.
    
    
      A lease of premises for a term of sixty years, executed as the result of a sale for the non-payment of an assessment imposed on the premises by a municipal corporation, does not disturb the owner’s title to the lee, and, upon the termination of the sixty years, the land is relieved from the burden of the lease. During the continuance of the lease the possession of the lessee is subordinate, and not adverse, to the title of the owner of the fee.
    .The possession of the premises by the lessee after the termination of the lease will also be regarded as subordinate to the title of the owner of the fee, unless there be a disclaimer of the title of the true owner or something that may be construed as tantamount to a surrender of the original possession and a retaking under an independently asserted claim of right and title.
    Appeal by the defendants, Joseph H. Warren and another, from " a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 10th day of July, 1903, upon the decision of the court rendered after a trial at the Hew York Trial Term, a jury having been waived.
    
      Da/oid Thornton, for the appellants.
    
      Eugene V. Daly, for the respondent.
   Patterson, J.:

This is an action in ejectment. The plaintiff had judgment awarding him the possession of one-eighty-eighth part of the real property No. 304 Mott street, in the city of Hew York, and a sum of money as damages and costs. It is sufficiently proven that the title to the share of the premises thus recovered is in the plaintiff as trustee under the will of Susan O. Hoffman. Without going into the details of the evidence, or making a full abstract of the title, there is enough, we think, to show that if no specific defense is established, the plaintiff’s right to judgment was made out and he may recover on the strength of his own title. The defendants in the action (who appeal) are Joseph H. Warren and Dorothea Warren, his wife. In 1793 the title to the locus in quo became vested in Vreelandt, the husband of Rebecca Dyckman. He conveyed to Wilkins, who conveyed to Martin Hoffman, the grandfather of the plaintiff’s testatrix, by. a deed made in the year 1795, and the plaintiff claims under the will of the testatrix. In 1821 the premises were sold for an unpaid assessment for the opening of Canal street, and a lease thereof for sixty years was made to James Boyle, and was assigned to Daniel Higgins. Higgins mortgaged the leasehold to Ridgeway, who assigned the mortgage to Whitlock, who, in turn, assigned it to Patrick Mulvahill. In 1843 Garret Byrne and others, heirs of Higgins, also mortgaged the leasehold to Mulvahill, who was a mortgagee in possession in 1854 and remained in possession until he died in November, 1866. He left a last will and testament which was duly proven and his real estate passed in trust to his executors during the lifetime of his wife, and upon her death to Marcella Walsli, his niece. The Mulvahill executors entered upon the premises and continued in possession until the expiration of the term of the lease. After such expiration they still remained in possession and received the rents until the death of Mrs. Mulvahill in 1891.' Since that time Joseph Warren, the defendant, heir at law of Marcella Walsh, has been in possession of the premises and has received the rents. He became twenty-one years of age in 1890, after which time he was continuously absent from the State of New York for three years.

The question in this case relates to the appellants’ defense of adverse possession. It is quite clear that that defense must fail. Warren’s predecessors in possession entered by virtue of a lease given upon a sale of the premises for the non-payment of an assessment. The legal effect of that lease was to carve out from the estate of the real owner a term of years, leaving the title in fee undisturbed and in those entitled to it, either by descent or as purchasers. When the term of sixty years, granted in that lease, expired, the land was relieved from the burden of the lease. The estate of the lessee and assigns ended. Nothing can be claimed to aid the defendant under the mortgages above referred to, for they were upon the leasehold and could have no duration beyond the term of the lease. Up to 1881 the possession of the defendants’ predecessors was under the tax or assessment lease and, therefore, it was not adverse to the plaintiff’s ancestor’s title, but was in subordination to the title of the real owners. Such a possession is not adverse. (Doherty v. Matsell, 119 N. Y. 646; Hilton v. Bender, 69 id. 79; Bedell v. Shaw, 59 id. 50; Bensel v. Gray, 62 id. 633.) There are no facts appearing in this record to indicate that the land is to be deemed held adversely to the plaintiff under the provision of section 369 of the Code of Civil Procedure.' The adverse possession defined there is under a written instrument and relates to a case where the occupant of land or those under whom he claims entered into possession óf the premises under a claim of title exclusive of any other right, founding the claim upon a written instrument, as being a conveyance of the premises in question or upon the decree or judgment of a competent court, and where there has been a continued occupation and possession of the premises, included in the instrument, decree or judgment, or of some part thereof, for twenty years under the same claim. Here there is neither instrument nor a claim of title exclusive of any other right, or a possession of Warren or his predecessors of the premises included in the instrument, for twenty years under the same claim. After 1881 the continued possession of the premises by Warren or his predecessors in no respect changed the situation on the subject of adverse possession. The mere fact of being in possession for twenty years of course is not conclusive and doés not constitute adverse possession such as would defeat the assertion of the plaintiff’s title for to be adverse the possession must be inconsistent with the right of possession of another. But it being established that the predecessors of Warren up to 1881 were in possession under the tax title, and that that possession was in subordination to the title of the true owner, then the continued possession after 1881 will be regarded as still in subordination, unless there be a disclaimer of. the title of the true owner or something that may be construed as tantamount to a surrender of the original possession and a retaking under an independently asserted claim of right and title. “If originally held and acquired in subordination to the title of the true owner (of the land) there must be, in order to constitute the possession adverse, a disclaimer of the- title of him from whom the possession was acquired," and actual hostile possession of which he has notice, or which is so open and notorious as to raise the presumption of notice.” (1 Am. & Eng. Ency. of Law [2d ed.], 798, and cases cited.)

It is insisted in argument that the Statute of Limitations applies . as a specific and independent defense to the action. "Without considering the snificiency of the answer as setting up such plea, we think the twenty-first finding of fact of the trial court is controlling, and it is that. Joseph H. Warren became twenty-one years of age, oh October 27, 1890, and that after he became of age he was continuously absent from the State of New York for three years. It may be said that this is not a direct finding that Warren was a non-resident, but it is of his absence and there was sufficient foundation for such finding. Warren testified to the essential facts, viz., that he lived at Paterson, N. J., and had lived there five or six years, and that he left Paterson in 1893 or 1894, and that he resided there six years or more prior to leaving. The running of the statute was suspended during the time of his continuous absence. (Code Civ. Proc. § 401.) It is unnecessary to consider other questions discussed.

The judgment appealed from should be affirmed, with costs.

Van Brunt, P. J., Ingraham, McLaughlin and Laughlin, JJ., concurred.

Judgment affirmed, with costs.  