
    William Moores v. John Townshend and Charles Lehman.
    
      (New York Superior Court, General Term,
    
    
      Filed February 15, 1887.)
    
    1, Taxes and assessments—Tax sales—Possession under—Ejectment.
    On the trial of an action of ejectment the plaintiff showed an apparently good record title, but no possession in himself, or in anyone of his predecessors in title, W'hile the defendant showed actual possession, founded upon a sale by the corporation of the city of New York for an unpaid assessment, and that this possession, under some authority derived from said corporation, commenced before the plaintiff acquired title. There being no proof showing the invalidity of the proceedings under which defendant claimed the right of possession, or otherwise showing that he took possession unlawfully, and no proof that the plaintiff or one of his predecessors in title ever was in possession. Held, that the plaintiff had not established arighttoimmediatepossessionsuperior to defendant’s claim. Ingraham, J., dissenting,
    8. Same—Presumption op lease.
    The case showed that defendant had been in possession of the land in question for about five years and built a house thereon; that possession being founded on a sale of said premises for unpaid assessments to him, hut the conveyance was not given in proof. Held, that under the circumstances of the case it would he inferred that the defendant did take possession under a lease from the corporation. Ingraham, J., dissenting.
    
      Application for judgment on a verdict for the defendants directed by the court below, subject to the opinion of the court at general term.
    
      L. A. Gould, attorney, and Robert L. Wensley, of counsel for plaintiff; John Townshend, for defendants.
   Freedman, J.

The plaintiff, in order to maintain ejectment, relies upon a record title resting upon a judgment in partition. Such a judgment is conclusive upon alT persons specified in sections 1577 and 1557 of the Code of Civil Procedure; but defendants in this action, who were not made parties to that suit, are not among the persons so specified. Before the partition suit was commenced, Townshend had given a lease to Breen, and Breen had gone into possession. Breen also built a house on the lot in question. He and his successors in interest have been in possession of said lot ever since, as tenants of Townshend. Whether that was rightful or wrongful as against the plaintiff, it was a claim by the defendants, of which they could not be deprived without a hearing. The present action furnished to them' the first oportunity of being heard.

The case shows that Townshend is, and since April 22, 1879, has been, in possession of the lot by his tenants, and that his possession is founded upon a sale of the premises for an unpaid assessment, which sale was made to him in September, 1871, for the period of ninety years.

From another litigation between the same plaintiff and Townshend, reported in 102 N. Y., 387; 2 N. Y. State Rep., 440, it appears that the sale for the assessment was actually followed up by a conveyance by the comptroller to Townshend, dated September 19, 1873. This conveyance, if it had been given in proof here, would estabhsh, prima facie, the regularity of the proceedings which led up to it, and the rightfulness of Townshend’s possession. But this was not done. The case is, therefore, to be treated as without direct proof of the existence of a conveyance. Nevertheless, as the law never presumes a wrong, it may, under the exceptional circumstances of this case, be inferred that Townshend did take possession under a lease from the corporation. '

The case, then, comes down to this. The plaintiff, at the trial, showed an apparently good record title, but no possession in himself, or in some one of his predecessors in title, while the defendant Townshend showed actual possession, founded upon a sale by the corporation of the city of New York for an unpaid assessment, and that this possession, under some authority derived from said corporation, commenced before the plaintiff acquired title.

Now, it was held by the court of appeals, m Bedell v. Shaw (59 N. Y., 46), that possession and claim for over twenty years, made a lease for a term of years executed by a municipal corporation upon a sale for unpaid assessments, not adverse to, but consistent with, the title of the owner in fee, and that they are not in hostility to such title, but in accord with it.

Under this doctrine, reaffirmed by the court of appeals in 62 N. Y., 632, Townshend, even if he had made full proof of a lease to himself, could not insist that his possession was adverse to plaintiff’s title.

But, on the other hand, the application of said doctrine does not, upon the meagre state of facts disclosed by the record, entitle the plaintiff to a judgment in ejectment.

To recover, in this action, the plaintiff, although this record title is good, must establish immediate right of possession, and, as the defendant is in actual possession, under at least a claim of right for a term of years, and under circumstances which do not of themselves show that his claim is unfounded, the plaintiff must show a right to immediate possession superior to Townshend’s claim.

There being no proof showing invalidity of the proceedings under which Townshend claims the right of possession, or otherwise showing that Townshend took possession unlawfully, and no proof that the plaintiff, or one of his predecessors in title, ever was in possession, the plaintiff has not established a right to immediate possession superior to Townshend’s claim.

The defendants are entitled to final judgment upon the verdict ordered, with costs.

Sedgwick, Oh. J., concurs.

Ingraham, J.

(dissenting). I am unable to agree that defendant is entitled to judgment on the verdict. The record shows that plaintiff proved a deed from one Stansbury to William H. De Groot, dated May, 1885, conveying the premises described in the complaint; a deed from William H. De Groot to Theodore R. B. De Groot, purporting to convey certain premises; the judgment roll in an action to partition the property to which all the heirs at law of William H. De Groot and Theodore R. B. De Groot were parties; a judgment in which action adjudging that these parties to that action were the owners seized of the property in question, and directing that the said premises be sold by the referee therein appointed; a sale by said referee, the referee’s deed conveying the property described in the complaint to Dayton, and a deed from Dayton to the plaintiff conveying the said property.

It was proved on the trial that the property was conveyed to William De Groot, and the record in a partition suit to partition De Groot’s property, the finding of the court in that suit that the property in question belonged to the parties thereto, and that it should be sold by the referee, was sufficient prima facie evidence of title. Greenleaf v. Brooklyn, etc., R. R. Co., 37 Hun, 436.

And the deed of the referee under that judgment to Dayton, and the deed by Dayton to the plaintiff's conveyed the premises described in the complaint to the plaintiffs in this action.

It is entirely immaterial whether the conveyance from William H. De Groot to Theodore R. B. De Groot covered the premises in question. The action of partition in which the heirs-at-law of William H. De Groot and Theodore R. B. De Groot were parties, made the conveyance under the judgment in that action effectual to convey all the interest of either William H. De Groot or Theodore R. B. De Groot. The fact that the defendant Townshend was in possession of the premises at the time of the trial, or that he, on April 22, 1879, gave a lease of the premises to John Breen, who then went into possession, is not sufficient to overcome this presumption.

It is not stated that Townshend made that lease claiming title to the property. As possession is supposed to follow the legal title, unless the contrary is shown, Townshend’s possession would not be presumed to be adverse to the real owner.

The mere finding of the referee in the partition suit that the premises had been sold for taxes, does not imply that, a lease had been executed or that Townshend, at that time, had any right to the possession of the premises under that sale;-the tax lease was not proved on the trial. It was, however, held in Bedell v. Shaw (59 N. Y., 49, and in 62 id., 632) that possession and claim under a municipal lease is not adverse to, but consistent with the title of the owner in fee, and is not in hostility to the title, but in accordance with it, and in consequence of it, and that the law adjudges the possession of the lease to be no greater than that of tenants of a term of years.

The finding, therefore, in the partition case, if it amounts to anything, would show that Townshend, at that time, did not hold as the owner of the property, and is not, therefore, inconsistent with the finding that the parties in that, action were the owners in fee. .

I think, therefore, that plaintiff is entitled to judgment..  