
    Theodore Baker and Others, Appellants, v. Mary E. Duff and John S. Duff, Her Husband, Respondents.
    Second Department,
    December 30, 1909.
    Evidence — admissions in prior action —- ejectment — when proof of actual possession essential—adverse possession—limitation of action — burden of proof.
    Where in an action of ejectment the plaintiff offers in evidence the answer of the defendant’s grantor in a prior action, and it is received in evidence generally, it inures as well to the benefit of the defendant as to that of the.plaintiff.
    Where the parties to an action of ejectment do not derive their title from a common source, and the plaintiff’s title is not traced back to the sovereign, he cannot recover without proof of actual possession in himself or predecessors in title at some time prior to the possession of the defendant.
    The plaintiff in such action cannot recover where the evidence shows a continuous, actual possession in the defendant and his predecessors which has never been questioned or attacked for over thirty years.
    Where the plaintiff’s predecessor in title died more than forty-nine years after an alleged conveyance to him, an action of ejectment is barred by the Statute of Limitations. The death of the plaintiff’s predecessor created no new right of possession where the statute had fully run against him during his lifetime.
    Where the Statute of Limitations is asserted as a defense to an action of ejectment, the plaintiff must give some evidence showing that the cause is not barred.
    Appeal by the plaintiffs, Theodore Baker and others, from a judgment of the Supreme Court in favor of the defendants, entered in the office of -the clerk of the county of Bichmond on the 10th day of May, 1909, upon the dismissal of the complaint by direction of the court'at the close of the plaintiff’s ease on a trial at the' Bichmond Trial Term, and also from an order bearing date the 7th day of May, 1909, and entered in said clerk’s office denying the plaintiffs’ motion for a new trial made upon the minutes.
    
      Frank Hendrick \_Ernest M. Garhe with him on the brief], for the appellants.
    
      Charles E. Hill, for the respondents.
   Rich, J.:

The plaintiffs base their right to possession upon a title derived under the last will of their deceased father, John Baker (admitted to probate December 2, 1887), who, it is claimed, derived title thereto from Jeremiah Baker and wife on March 24,1838. It is not shown. that either of the plaintiffs, or any of their predecessors in title, ever had actual possession of the premises in dispute. The defendants claim title through a conveyance from Emma H, Griffith, Ella H. Post and Minnie Van Riper, oil July 18,1890, under which deed they entered into immediate possession, 'which : they have since retained. Adverse possession and the Statute of Limitations are both pleaded in defendants’ answer. The plaintiffs put in evidence a certified copy of a portion of the answer of the defendants’ grantors in an action brought against them in the Federal courts by James H. Hatfield and others, verified on' April 23, 1894. This evidence being offered and received generally, is in the case for all purposes, and being offered, as is contended, for the benefit of the admissions it contains favorable to the plaintiffs, it inures to the benefit of the defendants as well. (People ex rel. Perkins v. Moss, 187 N. Y. 410, 428.) It appears that one Jacob Hatfield, the grantor of defendants’ grantors, was in possession, of the premises in 1876 under a devise contained in the will of one Mary Wood, a tax deed and a deed from Samuel Sneden, the surviving husband of a daughter of the testatrix, and tenant by-curtesy of' the premises; that Hatfield on May 5, 1890, conveyed the premises to.the grantors of the defendants, and that under said deed the latter entered into the possession of the property. When the plaintiffs rested their case, the defendants moved to dismiss the complaint upon the grounds that they had failed to make a case and that their cause of. action was barred by the Statute of Limitations, which motion was granted.

I think the learned trial justice was clearly right in his disposition of the case, for three reasons: First, there was no proof in the case that the parties derived their rights through a common source of title, and title in the plaintiffs was not traced back to the sovereign. Under such conditions' I understand the rule to be that the plaintiff in an action of ejectment against defendant in possession cannot recover without proof of actual possession in himself or his predecessors in title at some time prior to the possession of the defendant. (Greenleaf v. B., F. & C. I. R. Co., 141 N. Y. 395.) Second, the plaintiffs had shown that the defendants and their predecessors in title had been in the actual possession for more than thirty years continuously, and, so far as the evidence shows, such possession had never been questioned or attacked. Third, the right to possession of the premises of plaintiffs’ testator, John Baker, if he had any, accrued when he took his conveyance on March 24, 1838. He died June 4, 1887. The Statute of Limitations had barred an action by him twenty-nine years before his death. His death created no new right of possession in the devisees, for the statute had fully run against him in his lifetime. (Messinger v. Foster, 115 App. Div. 689.) His will does not mention the property in dispute or assert any rights in it, but in general terms gives and devises his entire estate to his children. The Statute of Limitations being pleaded and forming one of the issues tendered, it was incumbent upon the plaintiffs to give some evidence showing that the cause of action was not barred. (Hulbert v. Nichol, 20 Hun, 454, 457; United States Trust Co. v. Stanton, 76 id. 32; Burdick v. Hicks, 29 App. Div. 205, 207; Mason v. Henry, 152 N. Y. 529, 539.)

The judgment must be affirmed, with costs.

Woodward, Jenks, Burr and Miller, JJ,, concurred.

Judgment and order affirmed, with costs.  