
    John F. Zahm, Resp’t, v. Emilie F. Dopp, App’lt.
    
      (Superior Court of Buffalo, General Term,
    
    
      Filed July 8, 1892.)
    
    1. Ejectment—Title— Common qbantob.
    One B., in 1863, conveyed certain premises to defendant. In 1869 title to adjoining property became vested in B., and lias, by mesne conveyances, vested in plaintiff. The two deeds embrace all the land claimed to be owned by both parties, including the strip in dispute. Held, that as to these parties B. was a common grantor, and that plaintiff was not required to trace his title back of him.
    3. Deed—Champebty.
    Where the grant conveys the whole estate owned by the grantor, and possession is taken thereunder, the fact that a boundary line is in dispute does not constitute an adverse holding within the statute of champerty. To make the statute available, there must not only be an adverse possesiion, but it must be under claim of specific title.
    Action of ejectment.
    Plaintiff obtained a verdict of the jury, upon which judgment was entered, from which defendant appeals.
    
      Frank F. Williams (George Clinton, of counsel), for app’lt; John G. Cloak, for resp’t.
   Hatch, J.

The undisputed facts in this case are these. By warranty deed, bearing date May 18th, 1863, and recorded May 20th, same year, Henry Baethig and Adelaide, his wife, conveyed to defendant ninety-seven feet front on the southeast side of Thirteenth street commencing 200 feet north of York street as a six rod street. By mesne conveyances thereafter made, H. William Dopp, husband of the defendant, became the owner, and upon his-death he devised to defendant a life interest in the property, with remainder to his children. By warranty deed bearing date July 8th, 1853, recorded September 11th, same year, James Smith and wife conveyed to William A. Chard forty-two feet of land, commencing 297 feet northwest from York street as a six rod street By mesne conveyances, and in June, 1869, title to this property became vested in Henry Baethig, who entered into possession and occupied the same. And the same was thereafter, by mesne conveyances, vested in the plaintiff, before the commencement of this action. Upon these facts, defendant insists that plaintiff proved no title to the land, the point being that if he relied upon record title, it became essential for him to show title in the State, and connect it with plaintiff, or failing in this, prove possession in his grantor, and that as the evidence established neither, the motion for nonsuit should have been granted. The contention between the parties has become narrowed fcpthis, the defendant’s position as stated, and plaintiff’s claim that as both parties derive title from a common grantor (Baethig) he was not required to go back of such title. That the latter claim is the rule is not seriously controverted, and would be ineffectual if it were, but it is insisted that the facts do not establish such condition. An examination shows that the land conveyed by the two deeds embraces all the land now claimed to be owned by both parties, including the strip in dispute, and title to such land, so far as the present parties are concerned, is derived from the common grantor, Henry Baetliig. I am therefore unable to see why the plaintiff has not traced the source of title to a grantor common to both, and thus brought himself within the rule.

It is quite true that defendant is not estopped from showing that she obtained title to the land, and that as against Baetliig or any other person claiming under him, and that she has obtained such title either by her deed, by adverse possession or by a practical location of the line. So plaintiff is not estopped from showing that she has not obtained title from any of these sources, but that he has. This is what the parties did in this case ; they litigated which had the better title to the strip; as to that the jury found for the plaintiff, and such finding is conclusive.

Tracing title to the common grantor becomes sufficient to sustain this verdict, for the reason that it exhibits a better title in plaintiff, to the disputed portion, than the defendant had. I am also of opinion that plaintiff’s evidence authorized the jury to find that his grantor Baetliig had actual possession of the premises, as the location of the fence was one of the questions litigated, and plaintiff’s proof tended to show that it had been moved further onto his land that when first erected. There is nothing in this grant repugnant to the provisions of the Revised Statutes, 4 R. S., 2453, § 147, 8th ed., providing that, “ Every grant of lands shall be absolutely void if at the time of the delivery thereof such lands shall be in the actual possession of any person claiming under title adverse to that of the grantors.” Where the grant conveys the whole estate owned by the grantor, and possession is taken thereunder, the fact that a boundary line is in dispute does not constitute an adverse holding within the statute. Danziger v. Boyd, 120 N. Y., 628; 30 St. Rep., 889.

To make the statute available there must not only be an adverse possession, but it must be under claim of specific title. Crary v. Goodman, 22 N. Y., 170; Allen v. Welch, 18 Hun, 226.

The objections raised to the deeds admitted in evidence, if valid, do not affect the disposition of the case; they relate to deeds between parties prior to those vesting title in Baethig, and, as we have seen, showing title in him as the common grantor is sufficient to support the judgment. If error was committed it becomes immaterial. The judgment is affirmed, with costs.

White, J., concurs; Titus, Ch. J., not sitting.  