
    Mary E. Wilson, Respondent, v. Llewellyn W. Boyce, Appellant, Impleaded with Harriet Ross and Others, Defendants.
    Third Department,
    March 8, 1911.
    Ejectment — deed — description not including lands in controversy — champerty and maintenance.
    Action of ejectment. Conveyance under which the defendant claimed title examined, and held, not to include the lands which were the subject of the controversy.
    Where the deed of the defendant in an action of ejectment does not include the lands which are the subject-matter of the action, he may not, although in possession, assert that the deed to the plaintiff was void for champerty by reason of such possession. This, because under the statute to make a deed void for champerty where the lands are in the actual possession of a person claiming under title adverse to that of the grantor, he must claim under some specific title in order that his possession may be adverse.
    Appeal by the defendant, Llewellyn W. Boyce, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Warren on the 3d day of June, 1910, upon the report of a referee awarding to the plaintiff possession of certain real estate and damages.
    
      Walter H. .Dodd, for the appellant.
    
      George S. Raley, for the respondent.
   Smith, P. J.:

This action is in ejectment to recover the possession of a piece of land containing about ten square rods in the southeast corner of what is called a two-acre tract formerly belonging to one John M. Stanton, in the town of Bolton, Warren county, ¡N. Y. In 1838 Samuel C. Stanton, the father of John M. Stanton, deeded to the trustees of the school district ¡No. 2, in the town of Bolton, the land in question, thus describing it: “ All that certain piece or parcel of laud whereon the new school house now stands near the highway leading from Allen Anderson’s Grist Mill to the Lake Boad; said school house site lies adjoining land belonging to William Stewart, and is the northeast corner of the lot of land containing five acres formerly owned by William Stewart lying on the southwest side of the aforesaid, containing the whole length, width and breadth of land which is now appropriated for the use and convenience of said district school house, and it is expressly understood and solemnly agreed by the parties of the second part the within described school house site shall never hereafter be appropriated to any other use than for a district school house and school, this being a reserve made by the party of the first part.” This property was devised by Samuel C. Stanton to John M. Stanton, and in 1873 John M. Stanton gave to Marianne A. Bevins a deed of a two-acre lot, which was a part of the lot from which this school house site had originally been taken. Thereafter, and in 1874, he gave to said Marianne A. Bevins a deed, the description of which reads as follows: “ All that tract or parcel of land situate in the town of Bolton, County of Warren, and State of Mew York, being all of the land lying between the land purchased by said party of the second part of the party of the first part by deed executed on the 1st day of October, 1873, and recorded in the clerk’s office of Warren County on the 14th day of October, 1873, and the lands occupied by the school district of said town of Bolton and known as school district Mo. 2 of said town, these same premises being the lands lying between the lands so purchased by this party of the second part and the lands owned by one Horace Stewart on the south and by the highway leading from the Baptist Church by the residence of Willard Brown on the north and east, supposed to contain four rods of land be the same more or less.” This is the deed upon the interpretation of which this controversy depends. It was held upon the former trial, in a judgment which was sustained in this court (126 App. Div. 938), that this deed referred only to a gore of land between the two acres formerly purchased by Mrs. Bevins and the school house lot itself. This school house lot contains about ten rods, of land. The defendant claims under Marianne A. Bevins, and upon re-examination we reaffirm our former decision that under the deed in question Marianne A. Bevins never acquired any title to the school house lot. Her deed to the.defendant described the land as it was described in the deed to her, and it follows as a matter of course that the defendant has no title to the school house lot, which is the subject of this action. Plaintiff claims under the foreclosure of a mortgage executed by John M. Stanton after the said two deeds to Marianne A. Bevins and which concededly conveys and gives the title to the plaintiff unless John M. Stanton had theretofore conveyed away the title to Marianne A. Bevins by the aforesaid deeds.

The defendant, however, seeks farther to defend this action upon the ground that at the date of the deed to the plaintiff he was occupying this land under a title adverse to that of the plaintiff’s grantor, and that the deed was void for champerty. The school house lot was abandoned for school purposes in 1898, and since that time, or at least at the time of the grant to the" plaintiff, the proof is clear that the defendant was in fact in possession of that lot, claiming title thereto. But section 225 of the Beal Property Law (Gen. Laws, chap. 46; Laws of 1896, chap. 547), which is now section 260 of the Beal Property Law (Consol. Laws, chap. 50 [Laws of 1909, chap. 52], as amd. by Laws of 1909, chap. 481, and Laws of 1910, chap. 628), makes such a grant champertous only where “such property is in the actual possession of a person claiming under a title adverse to that of the grantor.” In Dawley v. Brown (79 N. Y. 390), a case involving the construction of this provision of the former statute (1 B. S. 739, § 147), the head note in part reads: “ It must also appear that at the time of the delivery of the deed the lands were in the actual possession of a person claiming 6 under a title adverse to the grantor.’ It is not enough that he claims title; he must claim under some specific title, which must be disclosed, so that the court may see that it is adverse to that of the grantor in the deed assailed.” The title which the defendant has disclosed has been construed by us not to include the land in question, and, therefore, not to be adverse to the plaintiff’s grantor. So that the deed to the plaintiff was not champertous and the defense must fail. (See, also, Belcher v. Belcher, 134 App. Div. 726; Arents v. Long Island R. R. Co., 156 N. Y. 1, 7.) It follows that the judgment must be affirmed, with costs.

All concurred.

Judgment unanimously affirmed, with costs.  