
    Henrietta A. Messinger, Plaintiff, v. Henry Foster, Defendant.
    Second Department,
    November 28, 1906.
    Statute of Limitations — adverse possession under sheriff’s deed on foreclosure — when title marketable.
    When an owner of lands and ,her predecessors in title have been in continuous adverse possession for forty-one years under a sheriff’s deed of foreclosure and warranty deeds subsequent thereto, the title is marketable although no record of the judgment in the foreclosure action can be found.
    This is so whether the mortgagor be living or whether he died after or before the commencement of the adverse possession, or whether he left infant heirs or not, or whether he were insane or imprisoned, for the period of the extension of the statute on an action to redeem the lands in any of these cases has expired.
    Submission of a controversy upon an agreed statement of facts, pursuant to section 1279 of the Code of Civil Procedure.
    The plaintiff asks for specific performance of a contract by the defendant with her to purchase a lot of land in the city of Mount Vernon, Westchester county, 2sT. Y. The defendant claims that the title is not marketable.
    John C. Ferguson being the owner of the land executed with his wife a mortgage thereon to John C. Remsen in 1852 for $1,200. The mortgagee began an action to foreclose the mortgage in the Westchester County Court in 1854, as appears by an entry .by the county clerk in the appropriate book in his office of the filing of .the summons, complaint and Us pendens on November 27, 1854. Nothing concerning the said action is extant in the said office excepting the said entry. There is no subsequent entry, and neither the said papers nor any other papers in the said action, are to be found in the said office. Nevertheless the sheriff of the said county conveyed the said land to the said mortgagee by a deed dated March 20, 1855, which recites the said action, judgment therein, due sale thereunder by the sheriff appointed by the judgment for that purpose, etc. The said sheriff’s grantee conveyed by warranty deed in 1865 to Margaret I. Smith, and she thereupon entered into the actual possession of the land, fenced it round about, cultivated it, lived in the dwelling thereon, and continued in such possession until February 8, 1889, when she conveyed it to Joseph A. Smith, who entered and continued in such possession until March 15,1902, when he conveyed it to Charles Messinger, who entered and continued fin possession until April 20, 1904, when lie conveyed it to his wife, the plaintiff, since which time she and he have continued such possession. A continuous adverse possession under the said conveyances -from April 29, 1865, to the present time is admitted. It is not known whether the said mortgagor be dead or alive, or, if dead, whether he died before or after such adverse possession began, or who his heirs are. _
    
      Elmer P. Smith, for the plaintiff.
    
      J. Mortimer Bell, for the defendant.
   Gaynor, J.:

1. The adverse possession from which the plaintiff claims title began April 29th, 1865, at the latest, which is over 41 years ago. The adverse title is therefore made out, whether the alleged fee owner against whom and his heirs such possession ran, died after or before that time. If he died after, then the cause of action had. accrued during his lifelife, and his heirs, whether infants or adults, were limited to the time limited to their ancestor to bring ejectment, viz., 20 years from the time the cause of action accrued to him. Where an adverse possession begins to run in the lifetime óf the ancestor and the land descends to an infant, the latter may bring ejectment only during the period limited to the ancestor. Such disability does not extend the time; and the same is true of all the • disabilities (Peck v. Randall, 1 Johns. 165; Jackson v. Moore, 13 id. 513; Demarest v. Wynkoop, 3 Johns. Ch. 129, 136, et seq.; Bradstreet v. Clarke, 12 Wend. 602, 636). And if the said fee owner died before the adverse possession began, leaving infant heirs, the case is not changed. If a right of action in ejectment accrue to an infant immediately after his birth (which is the extreme case), the time limited to begin the action is the 21 years of infancy plus 10 years (Code Civ. Proc. § 375); and the infant heirs of an infant are limited to the period limited to their infant ancestor, but not to be extended more than ten years after his death (Id. § 375). Disability cannot be added to disability. If that were permitted a right might travel through minorities for an indefinite time — for two centuries, Lord Eldon said (Demarest v. Wynkoop, supra, p. 139).

2. Aside from the question of adverse possession, the entry was at least that of a mortgagee made peaceably and lawfully, for the mortgagee’s warranty deed assigned the mortgage, at least; and therefore the possession was that of a mortgagee in possession, in which case the same limitation of a suit to redeem obtains as in the case of an action in ejectment, viz., 20 years (§ 379), with a possible addition of only one year in the case of infancy (§ 396) ; and after such suit is barred the title is in the mortgagee or his grantees or successors in possession.

3. There remain only the improbable disabilities of insanity and imprisonment. If either existed when the adverse entry was made it, or the 10 years additional given after it. ceased, might.exist yet in respect óf an action, of ejectment (§ 375), for manslaughter in the first degree was then punishable by imprisonment for any number of years not less than seven, in the- discretion of the court. But it could not still exist in respect of the action to redeem, for there the 20 years’ period of limitation cannot be extended for more than five years by insanity or imprisonment.

The plaintiff is entitled to judgment.

Hirschberg, P. J., Woodward, Rich and Miller, JJ., concurred.

Judgment for the plaintiff on submission of controversy.  