
    SAYRES against RATHBONE.
    
      Supreme Court, Second District; Special Term,
    
    
      December, 186
    Parties.—Deed pending Adverse Possession.
    In order to void a deed on the ground of an adverse possession, the third person must be one claiming under a title adverse to that of the grantor. A mere adverse holding is not sufficient, where such person and the grantor each claim under the same title. The act against champerty differs from the statute of limitations in this respect, and does not avoid the true owner’s deed, unless the third person held under a specific title, adverse in its nature to the grantor’s claim.
    Where the devisees of land made a mortgage of it which was foreclosed, and the premises were sold under the decree,—Held, that the possession of the devisees was not under claim of title adverse to that of the purchaser at the mortgage sale; and that such purchaser’s conveyance of the premises, notwithstanding the possession of the devisees, was not avoided by the statute. Hence, after the conveyance, the purchaser could not maintain an action to recover the premises.
    Trial by the court.
    This action was brought by Anna L. Sayres against Maria Rathbone. The plaintiff sought to recover the possession of real property, the title to which she claimed under a purchase by virtue of a mortgage, and the foreclosure thereof.
    The complaint was in the usual form of a complaint for the recovery of the possession of lands. The answer denied all the allegations of the complaint, and for a •further defense, averred that in 1853, Rebecca Smith was seized in fee of the premises, and that she devised the same to Maria A. Brown, in trust, to receive the rents and profits thereof, and apply the same to the use of the defendant, Maria Rathbone, during her natural life, and that from and after the decease of the defendant, testator devised the premises to Maria A. Brown in fee. It was also alleged that Rebecca Smith died before September 15, 1865.
    For a further defense, the defendant averted that on July 15, 1869, plaintiff conveyed all her estate and interest to Carlyle Norwood, Jr., and that since then plaintiff had had no estate or interest in the premises.
    It appeared by the evidence upon the trial, and was accordingly found by the court, that the premises were devised as alleged in the answer; that subsequently, Maria A. Brown and Maria Rathbone, the defendant, united in mortgaging the premises, which' mortgage was foreclosed, Maria A. Brown and Maria- Rathbone being made parties to the action of foreclosure, but not defending it. That the plaintiff in this action purchased the premises at the sale in foreclosure, and that she afterward, and before the answer to this action was put in, conveyed the premises to Carlyle'Norwood, Jr.; and that the defendant was, at the time of the execution of the mortgage, and ever since had been, in the possession of the premises, claiming ownership under the will.
    
      George G. Reynolds, for the plaintiff.
    
      Crooke, Bergen & Clement, for the defendant.
    I. The action should be dismissed, for it is not prosecuted in the name of the real party in interest (Code of Pro., § 111). The intention of the amendment of 1862 is explained in Lowber v. Kelly (9 Bosw., 494). The test is, would the deed have been void as to the plaintiff, if the action had been brought in the name of Norwood, the real party in interest. To establish an adverse possession within the statute, the party must claim under a title, which is not the same as holding under a claim of title (Crary v. Goodman, 22 N. Y., 170, and see 39 Barb., 531).
    II. The mortgage could not defeat the trust (Cruger v. Jones, 18 Barb., 467; Clute v. Bool, 8 Paige; L’Amoreau v. Van Rensselaer, 1 Barb. Ch., 34; Noyes v. Blakeman, 6 N. Y. [2 Seld.], 567). And the plaintiff must recover .in this action, if at all, on the strength of her own title.
   Pratt, J.

The plaintiffin this action has fallen into the error that the possession of the premises by the defendant was such as to render the deed given by the plaintiff, prior to the commencement of this suit, void under section 147 of 1 Rev. Stat., 739.

Both parties claim under the will of Rebecca Smith; and, taking it for granted that the premises in dispute passed by said will in fee to Maria A. Brown, and subsequently became vested by said mortgage, decree and sale, in the plaintiff, the first question to be determined is, whether this suit is properly brought in the name of the plaintiff, she having conveyed the property to one Norwood, prior to the commencement of the suit.

At the time of the conveyance by plaintiff to Nor-wood, the defendant was in possession of the premises, claiming title thereto, but it was not such a holding and possession as rendered the said deed void under the statute quoted.

The defendant, it is true, held adversely to the claim of the plaintiff, and claimed title herself under said will; but she did not hold or “ claim under a title” adverse to that of plaintiff.

A party may hold adverse possession of premises, claiming title; but to bring a case within the champerty act, the party must hold, claiming under a title adverse. The distinction is clearly made by the words of the statute, between the act of holding adversely, and the nature of the title. Adverse possession for twenty years, bars an action under the statute of limitations, although no specified claim of title is made, but under the act against champerty, there must be a specific title, adverse, in its nature, to the grantor’s claim.

The will is the foundation and source of the plaintiff’s title ; it is through that instrument that plaintiff. claims to have received the premises. The plaintiff not only claims that the will passed a good title to Maria A. Brown and the defendant, but that such title subsequently passed by the mortgage and .sale to the plaintiff.

Assuming that this claim is established, then it follows that the defendant, at the time of the transfer by plaintiff to Norwood, did not hold the premises claiming under a title adverse to the title of plaintiff. It was the same title under which the plaintiff claimed the premises. In no sense was the defendant’s assertion of title opposed to the title claimed by the plaintiff.

It is now well settled that, in order to bring a deed givón by one out of possession within the meaning of 1 Rev. Stat., 739, § 147, the party in possession must hold under the claim of some specific title opposed to the title of the grantor iri the deed.

But, did the claim of defendant amount to more than a general assertion of ownership, irrespective of any particular titlé, she could not claim under the will, if the plaintiff’s theory is correct, for she had conveyed that title in the mortgage under which plaintiff claims title, and she makes no other claim; hence, it follows, that at the time Norwood received the deed of these premises, the defendant was not in possession of the same, claiming under a specific title adverse to the plaintiff.

. In no event can this suit be maintained in the name of the present plaintiff.

I do not deem it necessary to discuss the questions whether defendant would be estopped from disputing the validity of the mortgage in a suit brought by the real party in interest, or whether the defendant and Maria A. Brown had any power to make the mortgage, or whether any matters sought to be litigated in this action are “res adjudicada.”

If the plaintiff acquired any title under her purchase at the foreclosure sale, it passed by the deed she gave to Norwood, and she thereupon ceased to have any interest in the subject matter of the action.

Complaint dismissed with costs, upon the ground above -stated.  