
    Walter S. Church, Appl’t., v. De Witt C. Schoonmaker et al., Resp’ts.
    
    
      (Court of Appeals,
    
    
      Filed October 8, 1889.)
    
    Title — Adverse possession — Champerty.
    A lease of the land in question expired in 1811, and no further lease was made. In 1860 the tenant quit claimed to one B. subject to the rents reserved and B. subsequently conveyed to S. by warranty deed. No rent was paid after 1860. S. has since occupied in good faith under a claim of title under said deed. Held, that as the premises had been occupied from year to year since the expiration of the original lease, the twenty years prescribed by § 873 ofgthe Code began to run from the last payment of rent in 1860, and that a deed by the former landlord to 0. in 1883 was void for champerty.
    Appeal from judgment of the supreme court, general term, third department, affirming judgment entered in favor of defendants upon the report of a referee.
    
      Geo. L. Stedman, for appl’t; Wm. Youmans, for resp’ts.
    
      
       Affirming 3 N. Y. State Rep., 768.
    
   Gray, J.

This was an action of ejectment. The defendant, Schoonmaker, acquired his title to the premises by a warranty deed from one Becker in 1861, under which he entered into possession. Becker’s possession and title have been the subjects of some discussion in a prior decision by us in the case of Becker v. Church. The premises originally formed a part of lands leased by Stephen Van Rensselaer to Jacob Post for a term of sixteen years from the year 1795. From 1811, when the term expired, the occupation .was continued without any further lease in writing. Becker became possessed of the premises by a conveyance from one Edward Settle in 1860, subject to the rents, etc., reserved in the Post lease. The referee has found that Schoonmaker took possession of the land conveyed to him by Becker, and has occupied it ever since, under his deed, in good faith and claiming to be the owner m fee. No rent was ever paid on the land since the time of Becker’s acquisition of it, either by him or by Schoonmaker, and none was demanded until in 1883, when Church, this plaintiff, made a claim upon Becker for arrearages of rent, and succeeded in obtaining from him a sum of money on account. Of this settlement Schoonmaker knew nothing and he had no part in it. Church acquired the interest of the Van Bensselaers in the land through a conveyance by them to him in 1882. The referee concluded that this conveyance was void for champerty as to the defendants, and dismissed the complaint ; which decision the general term have sustained.

I think the judgment was right. By § 373 of the Code of Civil Procedure it is provided that “ where the relation of landlord and tenant has existed between any persons, the possession of the tenant is deemed the possession of the landlord, until the expiration of twenty years after the termination of the tenancy; or, where there has been no written lease, until the expiration of twenty years after the last payment of rent.” The effect of that section is to prevent the running of a claim to an adverse possession in favor of a tenant for the period prescribed, whether he has acquired another title or whether he has claimed to hold adversely. For the twenty years the landlord has the benefit and the protection of the statutory presumption against the consequences of his fault, or mistake or accident, and against the acts of his tenant. The twenty years, in this case, would commence running from the last payment of rent in 1860, because the premises had been occupied from year to year since the expiration of the term of the original lease.

Schoonmaker’s possession was under a specific source of title adverse to the legal title in the warranty deed of Becker, under which he went into possession and has occupied until now. He took his deed in good faith and paid a valuable consideration, and had the grantor not been under the infirmity of the statute, Code, § 373, his conveyance would have earned the fee. But, notwithstanding that it did not carry the fee, as to the grantee, he went into actual possession under a claim of a specific title.. It may be true that until twenty years had expired after the last payment of rent his possession was made by statute subordinate to the possession of the Van Rensselaers. That may follow, because Becker could not, notwithstanding his warranty deed, convey any greater right than he possessed in the subject of the grant; and, if his possession as a tenant was made by statute the possession of Yan Eensselaer till 1880, during that time the title of Schoonmaker was subject to the legal rights of Yan Eensselaer as his grantor’s landlord. But, after the period of twenty years had expired, in the year 1880, Schoonmaker was in the possession of the lands, claiming under a title adverse to the Yan Eensselaers. Nothing interposed then as a shield to ¡he landlord’s possession. He was distinctly out of possession of his lands and was in no position to exercise acts of ownership over them until he had regained their possession. It follows that the subsequent conveyance by the Yan Eensselaers to Church, in 1882, was contrary to the provisions of the statute and absolutely void. 1 R. S., 739, § 147.

It needs no argument to show that any settlement with, or even attornment of his grantor, Becker, in 1883, to the plaintiff could have no effect upon Schoonmaker’s title. He had no knowledge of it, and did nothing in the way of assent and, of course, Becker could do nothing then to prejudice the title he had warranted to his grantee.

The judgment should be affirmed, with costs.

All concur, except Peckham, J., not sitting.  