
    (85 Hun, 564.)
    BISSING v. SMITH et al.
    (Supreme Court, General Term, Fifth Department.
    April 12, 1895.)
    1. Adverse Possession—Evidence.
    One who claims title by adverse possession has the burden of proving that he entered into and was in the actual possession of the premises under his claim of title.
    2. Same—Color of Title.
    Where an entry is made under color of title, the possession will be deemed adverse, though the supposed title is groundless, and a grantee so entering is not required to inquire into the nature of his grantor’s title.
    Action by Frank J. Bissing against Lewis L. Smith and Louis John Smith to recover possession of land. A verdict was rendered in favor of plaintiff, and defendants moved for a new trial, on exceptions ordered to be heard at general term in the first instance.
    Denied.
    Argued before DWIGHT, P. J., and LEWIS and BRADLEY, J J.
    Edward D. Strebel, Edwin C. Robbins, and Geo. Clinton, for plaintiff.
    John A. Ronayne and Stephen Lockwood, for defendants.
   BRADLEY, J.

The action is ejectment to recover the possession of a parcel of land within what is known as the “Buffalo Creek Reservation,” in the' county of Erie. The main question is whether the evidence was sufficient to establish title in the plaintiff to the premises. It appears that on the 12th day of September, 1810, Wilhem Willink and others, constituting the Holland Land Company, by their attorney, Paul Busti, conveyed to David A. Ogden about 200,000 acres of land lying west of the Genesee river, and within what was known as the “Cattaraugus Reservation,” “Tuscarora or Seneca Reservation,” “Buffalo Creek Reservation,” “Allegheny Reservation,” “Oaneadea Reservation,” and the “Tonawanda Reservation.” The beneficiaries of that purchase and conveyance were Ogden and his associates, and the trusts upon which the title was taken and held were declared in the subsequent deed, of date February 8,1821, covering the same property, made between David A. Ogden and wife, of the first part, Paul Busti, of the second part, Joshua Waddington anti others, of the third part, and Robert Troup, Thomas Ludlow Ogden, and Benjamin Woolsey Rogers, of the fourth part, by which conveyance was made to the parties of the fourth part upon the trusts that they and the survivors or survivor of them should have the premises surveyed into lots, for the purpose ■of division into 20 shares, and make partition between the associates in the manner mentioned, so far as, in their judgment, the lands are susceptible of such division, and that they sell at public •auction and convey such of the lands as they might deem not susceptible of such division; and they were given full power and direction to treat with the Seneca Ration of Indians for the purchase or extinguishment of the native claim to all or any part of the lands. The parties of third part were the beneficiaries and associates, and constituted what was known as the “Ogden Land Oompany.” The next deed was that of date December 19, 1829, made between Robert Troup, Thomas Ludlow Ogden, and Benjamin W. Rogers of the first part, Joseph Fellows and Charles G. Troup, of the second part, and Thomas Ludlow Ogden, Joseph Fellows, and Charles G. Troup, of the third part. In it is recited the prior deed of February 8, 1821, and its purpose; the progress made in treating with the Indians; and that certain portions of the premises have been partitioned and allotted to the associates, etc. Then it proceeds to describe the lands still held by the parties of the fourth part in the deed of February 8, 1821, and adds that, Robert Troup and Benjamin Woolsey Rogers having at a meeting of the associates signified their desire to be released from the further execution of the trusts, “it was resolved by the associates so convened that all the residue and remainder of the said trust estates should be vested for the like purpose and upon the like trusts in the said” parties of the third part, in pursuance of such resolution. And conveyance was accordingly made to Joseph Fellows and Charles G-. Troup upon such trusts, to be held by them and the survivors or survivor of them. In a deed made July 16, 1840, between Benjamin W. Rogers and others, of the first part, and Thomas Ludlow Ogden and Joseph Fellows of the second part, is recited the deed of December 19, 1829, the death of Charles G-. Troup, the progress which had been made in the execution of the .trusts, and the shares of the parties of the first part (which constituted 12/2o of the entire interests). The deed then proceeds to grant the estate to the parties of the second part, repeats the trusts, and grants to them power, in the events and for the purposes mentioned, to sell lands by public auction or private contracts. And in the deed of date September 21, 1871, made between Joseph Fellows, of the first part, and George R. Babcock and Charles Edgar Appleby, of the second part, after reciting the deed of December 19, 1829, and the death since then of Thomas Ludlow Ogden and Charles Troup, it was further recited that, Joseph Fellows having signified his desire to be relieved from the further execution of the trust, at a meeting of the associates or proprietors of the trust property convened in the city of New York, it was resolved by them that the residue and remainder of the trust estate be vested in George R. Babcock and Charles E. Appleby, as trustees, to hold for the like purposes and upon the like trusts as the same had hitherto been held by Fellows, and grant was made to them accordingly. Babcock died in September, 1876; and after-wards, November 1, 1892, Charles E. Appleby, describing himself therein as the sole surviving trustee of the estate and interests commonly called the “Ogden Land Company,” executed and delivered to the plaintiff a deed purporting to convey the land in question to him. The compact entered into between the states of New York and Massachusetts in 1786 whereby the sovereignty and jurisdiction over the disputed territory in the western part of this state were ceded and surrendered to the state of New York, and the right of pre-emption in the land to the state of Massachusetts, the conveyance by the state of Massachusetts of the western part of that territory, subject to the native right of the Indians, to Robert Morris, and his conveyance of a considerable portion of it to the Holland Land Company, are matters of public history in this state.

The objection to the introduction in evidence of the first deed above mentioned, on the sole ground that no title was shown in the Holland Land Company, is deemed not well taken. As the defendants did not on the trial raise the question of power of Paul Busti, as attorney for that company, to execute the deed, it is not available on this review. The fact, it may be, would have been supplied if the objection had been taken.

The power of Appleby, as trustee for the Ogden Land Company, to make the conveyance to the plaintiff, is questioned, and exception was taken to the introduction of the deed in evidence. The purpose of the deed of February 8, 1821, was to declare the trusts upon which title had been taken by Ogden from the Holland Land Company, and to convey the land to the persons named as trustees for the execution of the trusts. The purpose of the deed of December 19, 1829, was to substitute Fellows and Charles G. Troup in place of those who then retired, and, by grant, place them in such relation to the lands remaining subject to it as to enable them to execute the trust. This, as appears by recitals in the deed, was pursuant to the consent and resolution to that effect of the beneficiaries of the trust; and the retirement of Fellows as the sole surviving trustee, and the substitution of Babcock and Appleby as» trustees, were accomplished by the deed of September 21, 1871, pursuant to the like consent and resolution of the beneficial proprietors, as is also recited in the deed. Those recitals are evidence only against the parties to the deeds and their privies in estate .and blood. Hardenburgh v. Lakin, 47 N. Y. 109. When those deeds were put in evidence, it did not appear on what the defendants’ alleged claim of title was founded, and it could not then be assumed that their claim of title was paramount to that conveyed by the Holland Land Company to Ogden. It afterwards appeared that the defendant Lewis L. Smith was in possession of the land for some time prior to March 24; 1875; that an action had been commenced against him by Babcock and Appleby to recover the possession of it, and on that day the action was, pursuant to arrangement between the parties to it, discontinued; that Smith, upon a consideration expressed of $250, executed and delivered to George B. Babcock, as trustee, a deed of conveyance of the said premises to him, which deed was recorded the same day, and they joined in the execution of a lease made by Babcock, as such trustee, to Lewis L. .Smith, for the term of one year. Holding over after the expiration >of the year, Smith, by summary proceedings under the statute, instituted by Babcock in April, 1876, was removed from the possession of the premises. The surrender and conveyance of them to Babcock as trustee, and taking from him, as such trustee, the lease, placed Smith in such relation to the title conveyed to Ogden, and to the trusts in behalf of the proprietors as to render the, recitals in the deeds evidence against him. Babcock and Appleby were apparently clothed with power to execute the trusts, and assumed to do so. The land in question was part of that conveyed to Ogden. The conveyance by Smith to Babcock, as trustee, inured to the trust. On the death of Babcock, the powers of the trust or powers in trust devolved upon Appleby, as the survivor. And, as among the powers of the trustees was that of sale, it will be presumed that the sale and conveyance were effectually made to the plaintiff, ^notwithstanding the conditions in that respect in the grant of the power. Minuse v. Cox, 5 Johns. Ch. 441; Marshall v. Stephens, 8 Humph. 159; Schenck v. Ellingwood, 3 Edw. Ch. 175.

It appears that the next year after he was removed from the premises, and in 1877, Lewis L. Smith again went into possession ■of them. So far as appears, he did so without any right or permission. In 1891 he executed and delivered to his son, the defendant Louis John Smith, a quitclaim deed of the premises. This grantee alleges that he then entered under a claim of title, founded upon such conveyance, and exclusive of any other right; and it is urged in his behalf that the deed of conveyance made by Appleby, as trustee, to the plaintiff, in 1892, was champertous and void, by force of the statute which provides 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 a person claiming under a title adverse to that of the grantor.” 1 Rev. St. p. 739, § 147. This question could not arise if the defendant Lewis L. Smith had continued in possession from the end of the term of the demise to him, as then no grant could within 20 years of such continued possession have been made by or taken from him other than in subordination tó the title of his landlord. Whiting v. Edmunds, 94 N. Y. 309; Bedlow v. Dry-Dock Co., 112 N. Y. 265, 19 N. E. 800; Church v. Schoonmaker, 115 N. Y. 570, 22 N. E. 575. But on his eviction from the possession, and surrender of it to his landlord, his relation of tenant was terminated, and he was enabled, on returning to the possession, to assume to occupy in hostility to the owner. His possession, however, will be deemed to have been in subordination to the legal title, unless held adversely to it for 20 years. Code Civ. Proc. § 368. Yet a person taking a deed of conveyance from him, and entering under it, might be deemed in possession, claiming under a specific title, adverse to that of the grantor of any conveyance made to another while such actual possession continued. Crary v. Goodman, 22 N. Y. 170; Sands v. Hughes, 53 N. Y. 287; American Bank-Note Co. v. New York El. R. Co., 129 N. Y. 252, 29 N. E. 302.

The burden was with the defendant Louis J. Smith to prove that he entered into and was in the actual possession of the premises under such deed to him, and holding adversely to the title of the plaintiff’s grantor, at the time the deed was made to the plaintiff. He has the benefit of no inference in support of such facts. Howard v. Howard, 17 Barb. 663. As a general rule, when entry is made under color of title, the possession will be deemed adverse, although the supposed title is groundless. La Frombois v. Jackson, 8 Cow. 589. And the grantee, so entering under color of title, is not required to inquire into the nature of the title of his grantor, nor is he chargeable with constructive notice” of its defects. Sands v. Hughes, 53 N. Y. 287. It is not the policy of the law in this country to give this rule of the common law, embraced in the champerty statute, a construction and effect more liberal than its terms necessarily require. It has been held that to constitute possession adverse, so as to render a deed subsequently made void, the party asserting it must rely upon his title, and believe it to be good, although it may be otherwise. Livingston v. Iron Co., 9 Wend. 511. This doctrine, however, has been questioned in later cases, and it may be that the question of good faith in that respect on his part is not one for consideration. Sands v. Hughes, 53 N. Y. 296, 297; Munro v. Merchant, 26 Barb. 402. But whether or not he is in the actual possession,, holding adversely, under a claim of a specific title, at the time the subsequent deed is made, is usually a question of fact for the jury. In La Frombois v. Jackson, 8 Cow. 597, Chancellor Jones said: “The fact of possession and its character, or the quo animo of the possessor, are the test;” and added that in that case the continued possession was conclusively shown, and the. quo animo was apparent from the uniform claim of title and continued acts of ownership. See, also, Livingston v. Iron Co., 9 Wend. 518; Pownal v. Taylor, 10 Leigh, 172; Macklot v. Dubreuil, 9 Mo. 477; Beverly v. Burke, 9 Ga. 440.

In the present case the defendant Louis J. Smith testified that he took possession of the premises about the time the deed was made to him; that he "has ever since held possession of them under the quitclaim deed from his father, and has used the premises for farming and gardening purposes; that he built a barn and house there; and that he has never recognized any outstanding title in any one to the premises. He also testified that his place of residence was in the city of Buffalo, and he cultivated part of the land himself, and a portion of it was worked by his tenant; and it appears that during that time his father continued to reside on the premises. The difficulty in treating the facts testified to by the defendant as established as matter of law is in his relation of party to the action, and his interest as such in the controversy. The credibility of his testimony was a question for the jury. Honegger v. Wettstein, 94 N. Y. 252; Miller v. Boyer, 79 Hun, 131, 29 N. Y. Supp. 479. And since the defendants did not request the submission of any question to the jury, but, by their motion for nonsuit, treated the case as presenting questions of law only, and as the court directed a verdict for the plaintiff at his request, the questions of fact must be deemed to have been disposed of by the court adversely to the defendants. Winchell v. Hicks, 18 N. Y. 558; Ormes v. Dauchy, 82 N. Y. 443; Dillon v. Cockcroft, 90 N. Y. 649.

So far as related to the defendant Lewis L. Smith, it may be-added that he had no defense under the statute. He had, 16 years before the execution of the deed to the other defendant, conveyed, to Babcock, as trustee, whatever claim of title he may then have had; and his possession, taken in 1877, continued for a period less than 20 years, could give him no defense against the rightful owner,, nor could he, by his deed to the defendant Louis J. Smith, create,, through the adverse possession of the latter, a claim of a specific-title, under which to shield his own possession against a conveyance-thereafter made by the owner to another.

The motion for a new trial should be denied. All concur.  