
    Frances M. Tindle, Resp’t, v. Martha F. Powell, App’lt.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed July 5, 1895.)
    
    Evidence — Adveb.se possession.
    Where, upon an issue as to whether possession of certain land by a party was adverse, it appeared that during his occupation his brother built a. hopse on the premises and evidence was given on the trial tending to show that the house was erected by the brother because he owned the premises, it is competent, in order to meet this evidence, to show that the latter acquiesced in the fact, that the former owned the premises and was building a house there for him.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made on the minutes.
    The action was brought by George A. Tindale to recover the possession of the lands described in the complaint, which are situated at Olark’s Mills, on the easterly side of the highway leading from Kirkland to Westmoreland. After the trial of the action, George A Tindale died, and his wife and sole legatee, the present plaintiff, was substituted. Plaintiff claimed title to the lands in question from one Liberty Powell, and it was claimed that he derived his title from two sources, — one-half acre from one Stephen Chappel, under a deed of October 31, 1844; and the other acre- and a half, it is claimed, he obtained by deed from Charles W» Powell, dated January 10, 1876. Liberty Powell died March 26,. 1886. No evidence was given on the trial that Liberty Powell, or-either of his grantors, ever occupied the one-half acre, or the acre and a half. The premises were occupied from 1845 until September, 1875, by Philo Powell; and, after his. death, his widow, Harriet Powell, and the defendant occupied the. premises, until after the trial of this action. The widow died in December, 1892, and the defendant is a daughter of Philo. Powell, and one of the six children, who were the sole heirs and descendants of PhiloPowell. When Philo Powell moved onto the one-half- acre, in 1845, there was an unpainted house and a small barn ; and in 1851 a fence was built on the half acre upon the place occupied by the old fence, and this was built by Philo Powell. There was-a fence built in 1851 or 1852, which enclosed both pieces of land in question, by Philo Powell and his sons; and he lived on the place at the time, and continued to do so until the time of his death, in 1875. He cultivated the place, and raised crops on it, every year; and afterwards, the widow and the defendant, his daughter, occupied it, the evidence showing that he held himself out as-owner of the premises. He planted trees on the place, both on the half acre and the apre and a half, and caused the trees to be grafted. The trees grew large. He moved the old barn ' back from the half-acre piece by the piece added on by the building of the new fence. He kepf the fence in repair around the place-while he lived, and the premises were cultivated as farms usually are from 1845 until 1875 by Philo, and subsequently by his widow and this defendant. It appears in the evidence that Philo- and his widow paid taxes on the place during the time they occupied it, and there is other evidence tending to show actsof adverse-possession on the part of Philo Powell and by his wife and this defendant; and. there is evidence to show that the acts were public and notorious in which they asserted ownership and possession thereof, and there is some evidence from which a jnry might infer that Liberty knew of the claims made by Philo and his widow and the defendant, and from it might be inferred he never, asserted the contrary.
    
      Josiah Perry, for app’lt; S. J. Barrows, for resp’t.
   Hardin, P. J.

— Upon all the evidence found in the appeal book, we are inclined to the opinion that the case should have been submitted to the jury. We think the evidence warranted a finding upon the important questions relating to adverse possession. It is-provided in the Code that, for the purpose of constituting adverse possession, land is deemed to have been possessed and occupied where it has been protected by a substantial inclosure, or where it has been actually cultivated and improved. The evidence discloses an actual occupation for over twenty years. Barnes v. Light, 116 N. Y. 34; 26 St. Rep. 654; Woodruff v. Paddock, 130 N. Y. 618 ; 42 St. Rep. 650.

It was claimed during the trial by the plaintiff that circumstances were such, as to rebut the presumption of adverse possession arising irom the occupation by Philo Powell. With a view of establishing an explanation of the possession or claim of ownership of Philo, it' was shown that, in 1875, Liberty Powell built a house upon the ■premises. At that time he was a man of wealth, and his brother seems to have been in moderate circumstances; and it is a question, upon the whole evidence, whether it was a brotherly act without pay, or whether it was an advancement upon the property by Liberty, with the knowledge on the part- of Philo that ultimately the expenses for building the barn were to be accounted for. There was some considerable evidence as to why the building was erected; ánd somé evidence was given tending to show it was -erected by Liberty Powell because he was the owner of the premises, and that Philo assented to the idea that he was the owner of it. To meet that evidence, the defendant offered to show that, at the time, Liberty Powell acquiesced in the - fact that Philo Powell owned the premises, and was building the house there for Philo. The evidence was excluded, and an exception was taken. At a later stage of the case, the defendant, in effect, offered to show by a witness “that he was riding with Liberty Powell, and the latter told him that he was building the house for his brother Philo. The evidence was excluded, and an exception taken. "We are inclined to think that, as the issue then stood, the offer ought to have been received to explain the relations of the parties to it. We think there should be a new trial.

Judgment and orde» reversed, and a new trial ordered, with costs to abide the event.

All concur.  