
    John J. Mannix and Others, Respondents, v. Ellen Riordan, Appellant.
    
      Adverse possession — under what circumstances a title may be acquired thereby, by a grantor against her grantee—presumption as to the delivery of a deed, when overcome.
    
    In an action of ejectment, brought by the heirs at law of Michael Mannix against the widow of James Riordan, it appeared that the house and lot in question were conveyed to Riordan in 1860, and that he resided on the premises with his wife until his death in 1862 or 1863; that the defendant had ever since continued to occupy the premises, had uniformly paid the taxes, paid off a purchase-money mortgage thereon several years after her husband’s death, dug a cellar and built an addition to the house, and that she had always claimed to own the premises to the exclusion of all other persons.
    The plaintiffs, in support of their title, proved that there was upon record in the county clerk’s office, which was located twelve miles distant from the premises in question, a deed of the premises purporting to have been executed by James Riordan and the defendant to Michael Mannix, June 13, 1861, and to have been recorded the same day. The original deed was not produced, and the plaintiffs declared on the trial that it was not in their possession. The defendant testified that she never executed the deed, and never heard of it until after Marinix’s death, which occurred in 1898.
    It further appeared that Mannix had never had possession of the premises in his lifetime and had never asserted any title through the deed nor taken any steps to obtain possession, although the premises had a rental value; that he never paid any taxes or exercised any acts of ownership and, so far as appeared, never claimed to own the premises or had any possession or knowledge of the deed.
    
      Held, that the evidence was sufficient to destroy the presumption that the deed to Mannix had been delivered;
    That the evidence also established that the defendant’s possession of the property after her husband’s death was adverse to Mannix, and that she had acquired a title thereby.
    Appeal by the defendant, Ellen Riordan, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Warren on the 18th day of December, 1901, upon the decision of the court rendered after a trial at the Warren Trial Term, a jury having been waived.
    
      11. A. Howard and O. H. Sturges, for the appellant.
    
      T. W. McArthur, for the respondents.
   Kellogg, J.

The evidence in this case is very brief and very unsatisfactory. Any judgment based upon it necessarily rests upon a choice of doubts. Counsel on both sides appear to have preferred • to rely. upon presumptions rather than upon--direct proof of facts which might have resolved doubts as to the actual ownership of the premises, the subject-matter of the suit.

The action is brought to eject the defendant from a house and lot in Glens Falls. She has occupied the house as a dwelling for over forty years. The .complaint -alleges that defendant “ is and was at the commencement of this action and for some time prior thereto, in possession of said premises claiming title thereto and unlawfully withholding the same from these plaintiffs.” , The plaintiffs are the heirs at law of one Michael Mannix who died in 1898. The-. defendant is the widow of one James Riordan who died in 1862 or 1863. James Riordan bought the premises and took a deed to himself in August, 1860, and was living in the house with the defendant, his wife, when he died one or two years after he purchased, and the defendant has ever since continued to live there, has uniformly paid the taxes, and paid off a purchase-money mortgage thereon several years after her husband’s death, dug a cellar and built an addition to the house and has been always the apparent owner, and the proofs warrant the conclusion that she lias always claimed to own the premises to the exclusion of all other claimants. The plaintiffs, to support théir title to the house and lot, produced the record of a deed purporting to have been executed by James Riordan and defendant to Michael Mannix June 13, 1861, and duly recorded the same day. The expressed consideration is $150, and both grantor and grantee are declared to reside at the village of Glens Falls where the premises are situated. The original deed is not prod need and plaintiffs declared on the trial that it is not in their possession. Who had the deed recorded is not shown. The deed purports to have been executed by this defendant by making her mark. She testifies that she never executed the deed and never heard of it, until the heirs of Mannix after his death “ explained it ” to her. From the proofs it is apparent that the grantee Mannix never had possession of the premises in his lifetime, and never asserted any title through this deed, never took any steps to obtain possession, never paid any taxes or exercised any acts of ownership, and, so far as appears, never claimed to own the premises or to have had any possession or knowledge of the deed except so far as the presumption goes arising from the deed being on record in the county clerk’s office, which is located some twelve miles from Glens Falls.

From this evidence the learned trial court interpreted the legal presumption to be that there was a delivery of the deed to Mannix and the title vested in him at its date in 1861.

And that there was no adverse possession which would support the presumption of a grant to the defendant.

The presumption of a delivery of a deed which arises from the proof of a record, standing alone, is far from conclusive. The presumption of non-delivery must prevail where the facts appear as in the case before us.

The great length of time which has elapsed since the deed was recorded, with no reason whatever given for the grantee’s silence; the fact that the grantor himself died some thirty-six years before the grantee died, and the possession of defendant was never disturbed, and that she was during all this time permitted to treat the property as though this deed was never delivered, is sufficient in itself to destroy the presumption of delivery. This property, as the proof shows, had during all this time a rental value, and the presumption is that had the grantee had any knowledge of this deed he would have taken possession or have exacted rental for the use of the premises. (Knolls v. Barnhart, 71 N. Y. 474.)

In Sherman v. Kane (86 N. Y. 57) and in the numerous cases cited in the opinion of the court, it was held that title by adverse possession by a grantor in a warranty deed might be created against the grantee as well as against a stranger, only the proof must be stronger. I see no reason why the defendant may not claim title here by ad verse possession. Her acts of ownership were so open and pronounced, so exclusive of ownership in any one else, so patent to the grantee for this long period, that the presumption that she held possession in subordination to any title in Mannix is destroyed.

The question of delivery of the deed is a question of fact; so is the question as to ownership by adverse possession ; but in this case there is no conflict in the testimony, and we think that the learned trial court was in error in resolving the presumption of delivery of the deed in favor of the plaintiffs,, and also in error in determining on the undisputed facts that defendant’s posséssion was not adverse to all claim of title in Mannix. The proof rather raises the presumption of a deed from Mannix to defendant at the time the deed was executed by Riordan to Mannix, and the transaction was only a mode adopted by Riordan to vest title in his wife. In forty years the defendant, at the age of seyenty-five, may-well have forgotten details which in no way disturbed her mode of living.

The judgment should be reversed and a new trial granted, with costs to appellant to abide the event.

All concurred; Smith, J., on first ground stated in opinion.

Judgment reversed on law and facts and new trial granted, with costs to appellant to abide event.  