
    Harvey A. Sweetland, Resp’t, v. Franklin S. Buell et al., Individually and as Executors, etc., App’lts.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed October 16, 1895.)
    
    Adverse possession—Tenants in possession.
    Where one tenant in common assumes to sell and convey the entire estate in the premises and apparently does so by warranty deed, and his grantee takes it as such and goes into possession, claiming title to the whole, the possession, thus taken by the grantee and held by him, may be treated as an ouster of the cotenants and constitute adverse possession, and, by its continuance for the requisite time, will ripen into a title as against them.
    Motion for a new trial on exceptions, ordered to be heard at general term in the first instance.
    
      Olarh H. Timerman, for pl’fi • George Wadsworth, for def’ts.
   Bradley, J.

The plaintiff seeks to compel the determination of a claim made by Jonathan S. Buell, the original defendant, to certain real property in the city of Buffalo, to which the plaintiff alleges title in himself. The lot in question is part of a tract of land of which Elijah Holt became the owner prior to 1819. On the 5th day of February of that year one Hancock recovered in the ¡Niagara court of common pleas a judgment against Holt for $310, upon which judgment was issued to the sheriff a fieri facias, tested J une 5, 1819. In the sheriff’s deed, of date April 12, 1820, it is recited that by virtue of that execution and another issued on a judgment against Holt and one Cotton, and tested February 12, 1820, he seized the land, and sold it to Asa Rice and Joseph Clary, “ said Asa and Joseph being executors of John Dill,” deceased, for the sum of $320, followed by grant to Rice and Clary of all the estate, title, and interest which Elijah Holt had in the premises on the 5th day of February, 1819. At the time of the sheriff’s sale, Rice and Clary were partners in business in the village of Buffalo, and, although they were executors of the will of Dill, it may be assumed that they by the purchase became tenants in common of whatever estate in the premises was conveyed by the sheriff’s deed. Asa Rice died in 1823, leaving three children, —John D., aged eleven years; ¡Norman Clary, aged five years; and Henry, aged three years. A warranty deed of date February o, 1819, expressing a consideration of $1,887.58, and recorded February 6, 1819, was made of the premises by Elijah Holt to Williams Holt, who, by warranty deed of date October 17, 1829, expressing consideration of $200, and recorded the same day, conveyed the premises, including those in question, to Joseph Clary. By the statute as it then was, the docketing of a judgment was not essential to a sale of land by virtue of an execution issued upon it, but it was provided that no judgment not docketed should affect any lands or tenements as to purchasers or mortgagees.” 1 Rev. Laws, chap. 50, §§ 1, 3. The undocketed judgment, however, was then a lien, and in equity had priority as against a purchaser or mortgagee having notice of it when he made the purchase or took his mortgage. Buchan v. Sumner, 2 Barb. Ch. 165. The Heacock judgment against Elijah Holt was not docketed, and, assuming that the judgment was entered prior to the delivery of the deed by the latter to William Holt, it did not affect the latter if he was a purchaser without notice of the judgment. The expression of consideration in the deed within the recording act is prima facie evidence that the purchase was for a valuable consideration. Hendy v. Smith, 49 Hun, 510; 18 St. Rep. 836; Wood v. Chapin, 13 N. Y. 509. And as there is no evidence that Williams Holt had any notice of the judgment when he took the conveyance, it cannot be assumed that he then had notice of it. Jackson v. Elsten, 12 Johns. 452; Dey v. Dunham, 2 Johns. Ch. 182; Brown v. Volkening, 64 N. Y. 76. The apparent situation as represented by the record of the deed of Elijah Holt to Williams Holt was such as to give apprehension that the title may have been conveyed by it to the latter. Such was the effect if it was made and taken in good faith for a valuable consideration; and therefore it was desirable to obtain conveyance from the grantee in support of the title derived from the sheriff’s deed. In view of his relation as tenant in common with the heirs of Asa Rice, Clary was not permitted to purchase the outstanding title exclusively for himself, but, as between him and them, such purchase inured to their benefit also, and they were chargeable with their proportionate share of the expense of it. Van Horne v. Fonda, 5 Johns. Ch. 388; Burhans v. Van Zandt, 7 N. Y. 523; Carpenter v. Carpenter, 131 id. 101; 42 St. Rep. 718. But Clary evidently did not contemplate any benefit to the heirs of Asa Rice by his purchase from Holt, as he had before then, by warranty deed of date September 13, 1828, recorded November 5, 1828, and expressing a consideration of $1,340, conveyed the premises covered by the sheriff’s deed to Martin Koebel and Adam Pforter ; and Pfortpr conveyed to Martin Koebel an undivided half of the premises by warranty deed of date December 31,1828, recorded March 14, 1868, expressing a consideration of $1,600; and Martin Koebel conveyed the premises to Philip Koebel by warranty deed of date August 1, 1864, recorded February 27, 1868, expressing a consideration of $2,500. The land conveyed by all those deeds was a tract of many acres, and in it was included the premises in question. As early as 1829 the grantees in the deeds had actual possession of the land, occupied and worked it for farming purposes, raising crops upon it annually until it was conveyed by Philip Koebel to Elam R. Jewett by warranty deed of date September 7, 1868, and recorded September 10, 1868, expressing a consideration of $6,000; and after such conveyance the land was occupied and worked for agricultural purposes under and by Jewett until after his conveyance of it to the Park Side Land Improvement Company, which was made by deed of date November 1, 1885, recorded March 16, 1886, expressing a consideration of $44,148. This company having possession of the land, afterwards, in 1888, divided it up into lots, laid out streets, graded it, and put the lots into the market; and in May, 1892, the company conveyed to the plaintiff one of the lots, which is the land in questian, by deed recorded May 24, 1892. He thereupon went into possession of the lot.

It is true, as asserted on the part of the defendant, that the possession of one tenant in common is, in the legal sense, that of all of them until he assumes a possession and control notoriously hostile to such relation of his coten'ants, and assumes to have the exclusive right to the premises; and that he cannot convey their interest in the property. But when one tenant in common assumes to sell and convey the entire estate in the premises, and apparently does so by warranty deed, and his grantee takes it as such, and goes into possession, claiming title to the whole, the possession thus taken by the grantee and held by him may be treated as an ouster of the cotenants, and constitute an adverse possession, and by its continuance for the requisite time will ripen into a title as against them. Clapp v. Bromagham, 9 Cow. 530; Bogardus v. Trinity Church, 4 Paige, 178; Town v. Needham, 3 id. 545; Florence v. Hopkins, 46 N. Y. 186; Baker v. Oakwood, 123 id. 16; 33 St. Rep. 223. The conclusion was warranted by the evidence that the premises including the lot in question were in the actual possession of the grantees under the deeds purporting to convey the entire estate, and that they took the conveyances, and, treating the grants as of that effect, held the possession, claiming title to the whole continuously for more than fifty years, and for more than forty years since the youngest heir of Asa Rice arrived at the age of twenty-one years. By this state of facts the survivors of those heirs are concluded from effectually asserting a claim to any estate in the premises, and their deed of conveyance, made in 1892, to Jonathan S. Buell, was ineffectual to support any claim thereto in behalf of him or of the defendants who succeeded him in title to his estate. And it is not necessary to inquire whether there was any question of 'fact arising upon the evidence as to the adverse possession, since the questions presented at the trial were there treated by counsel as those of law. Kirtz v. Peck, 113 N. Y. 222; 22 St Rep. 733; Winchell v. Hicks, 18 N. Y. 558. Although Franklin S. and Kate M. Buell, as executors, were not devisees in trust of any estate, they were, by the will of their testator, given power of sale. It seems that they by default, permitted the granting of the order bringing them in as defendants for the purpose of the continuance of the action after the death of the original defendant. They have not alleged any disclaimer by answer, and individually were necessary parties defendant There is no occasion furnished on this review to consider any question bearing upon their relation as such personal representatives to the action.

The motion for a new trial should be denied.

All concur.  