
    Albert L. Willey, Appellant, v. Hannah Greenfield and Luther Greenfield, Respondents.
    
      Possession without claim of title— a conveyance by the recoi'd owner is not chamfertous—false representations by the latter’s grantee — who may set them up — redemption from a tax sale — a promise by the owner that the party redeeming may have possession must be pleaded.
    
    The possession of land by a person not claiming title thereto will not render champertous a deed of the land executed by the holder of the record title.
    False representations, made by a grantee to his grantor, in order to obtain the-conveyance, are only available to the party defrauded or to some one in legal, privity with him, and afford no defense to a third person, having no equitable-rights in the land, in an action of ejectment brought against him by the grantee..
    The redemption of land from a sale for unpaid taxes by a person who occupies, the land without legal right, does not give to such occupant any interest in-the land or right of occupancy as against a grantee of the owner.
    The fact that the occupant redeemed the land under a promise made by the owner that, if he redeemed, he might have the right to possession, is not available Unless pleaded.
    
      Appeal by the plaintiff, Albert L. Willey, from a judgment of the Supreme Court in favor of the defendants, entered in the office •of the clerk of the county of Tompkins on the 22d day of January, 1901, upon the decision of the court rendered after a trial at the Tompkins Special Term.
    The action is in ejectment. The defendants are in possession of •certain land formerly the property of the New York and Oswego Midland Railroad Company, which land adjoins upon the south the premises of the defendants. In 1889 the New York and Oswego Midland Railroad Company abandoned its road. Its property was sold upon foreclosure of a mortgage, at which sale the property, including the land in question, was purchased by George M. Diven. 'The plaintiff claims under a deed from George M. Diven, dated March 25, 1897. The defenses are, first, that the deed from Diven was champertous, as given while the defendants were in possession •of the property claiming title; second, that the deed was obtained from Diven by false representations of the plaintiff to the effect that he owned property adjoining the premises in question ; third, that the defendants have held adversely for more than twenty years; and, fourth, that upon a sale of unpaid taxes in Í895 of a part of this property the same was purchased by the plaintiff, and from this sale the defendants redeemed and paid the taxes due thereupon, and that the sum so paid has not been tendered back to the •defendants.
    
      William Hazlitt Smith, for the appellant.
    
      F. E. Tibbetts, for the respondents.
   Smith, J.:

With legal title in the plaintiff the right to possession follows unless the defendants have established a legal or equitable claim superior to the plaintiff’s title. The possession of the defendants was not even that of a licensee. There is no claim of permission to occupy any portion of the land except a small strip off from the north end and as to that the claimed permission is not shown to have been given by any one connected with the railroad who had any authority to give the same. There is, therefore, no such possession under any claim of title as can make the deed to the plaintiff champertous. (Arents v. L. I. R. R. Co., 156 N. Y. 1; Crary v. Goodman, 22 id. 170; Higinbotham v. Stoddard,. 72 id. 94.)

■ No title can be claimed by adverse possession because the land .was occupied by the railroad company until the foreclosure of the mortgage in 1889, except the small strip, and as to that there was no occupation by defendants before that time under any claim of title.

That the deed from Diven was obtained by false representations is immaterial. If the defendants have any equitable rights to such land, the possession of the defendants at the time of the giving of the deed was constructive notice of such rights and those equitable rights were superior to plaintiff’s, whether the .purchase was made in good faith or bad. . If the defendants had no equitable rights at the time, the fraud of the plaintiff in the procurement of the deed is of no concern to them, as a fraudulent deed can only be avoided by the party defrauded or some one in legal privity to him.

The last defense urged by the defendants is that they had some rights growing out of their redemption of the land from the sale for unpaid taxes. Whatever right an occupant may have to redeem from a sale for unpaid taxes, we áre referred. to no statute and im authority which gives to such occupant upon such redemption any title or interest in the land. He is given no lien upon the land for the moneys paid. His redemption, therefore, is simply for the protection of such right of occupancy as he may have independently of such redemption. The mere fact, therefore, of the redemption from this sale for unpaid taxes gives to the defendants no interest in the land or no right ito occupancy as against the deed given by the owner of the land to the plaintiff.

But to give force to such redemption defendants further claim that their redemption of this land was under a promise made by Diven, the owner of the- land, that adjoining owners who redeemed from such sale for taxes might have the right to possession of the lands sold. There is no finding by the court that such a promise was made to defendants or made generally by Diven nor that the redemption by defendants was made upon the faith thereof. Upon a careful review of the evidence, however, I think that such findings would be justified. But the defendants are here met with the objection that no such defense is pleaded. Defendants have pleaded that while in possession of the land they redeemed, but there is no allegation that such redemption was upon the faith of any promise made to the effect that a redemption by them should give to them an interest in the land. Upon the offer to prove that defendants relied upon such a promise in redeeming the land, the objection was duly made that such fact was not pleaded. This objection was improperly overruled and the fact was sworn to that the defendants redeemed in reliance upon such an assurance. But a recovery must be seowndwn allegata et probata. This judgment cannot be sustained upon proof of any matters not alleged, to which proof objection was duly and properly made. Whatever support, therefore, the defendants might claim from these facts, if properly pleaded, such support must be denied to them by reason of their failure to allege such defense.

We conclude, therefore, that the judgment must be reversed and a new trial granted, with costs to the appellant to abide the event.

All concurred.

Judgnient reversed on the. law and facts and new trial granted* costs co appellant to abide event.  