
    Charles G. Landon et al., Ex’rs, Resp’ts, v. Mary N. Townshend et al., App’lts.
    
      (Court of Appeals,
    
    
      Filed December 1, 1891.)
    
    1. Adverse possession—Evidence of—Possession by tenant at will.
    One holding property by adverse possession may if he chooses recognize the occupation of his property by another, who claims to come in under an assignment by one who was nothing himself but a tenant at will, and such recognition would constitute such person a tenant at will the same as his predecessor.
    2. Same.
    The continuance of the same kind of tenancy by the widow of the tenant at will might be inferred by her continuing to occupy the land in the same way for market gardening as her husband had done.
    3. Same—Building of fence around premises.
    While building a fence around a lot may under some circumstances constitute a taking of possession, yet where the occupation of the other party continued through the building of the fence and in spite of it the same as it was before, and such occupation was by the same parties in the same way and for the same purpose during the whole time and for years after the destruction of the fence itself, the mere building of the fence under these circumstances is not necessarily a legal, valid termination of the adverse possession of the other party.
    Appeal from judgment of the supreme court, general term, first department, affirming judgment for plaintiffs entered upon report of referee.
    This is an action of ejectment brought to recover the possession of certain premises in the city of ¡New York and described in the-complaint.
    
      The plaintiffs are the surviving executors of one Benjamin H. Hutton, who died in the city of Hew York on the 17th day of February, 1884. John H. "Whiting, who is named in the will as one of the executors thereof, died 'on or about the 19th of April, 1885, leaving the plaintiffs sole surviving executors. On the 5th day of September, 1885, Edward Price and his wife conveyed to one John Scudder, in fee, the premises involved in this action. Scudder at the time gave back to Price a purchase money mortgage to secure the payment of $1,000. On the 23d of March, 1836, Scudder conveyed these premises to one Ebenezer L. Williams in fee, subject to the mortgage. On the 4th of February,' 1843, Williams, still being the owner of the premises subject to the mortgage, was duly declared a bankrupt by a judgment of the district court of the United States in the southern district of Hew York. William 0. H. Waddell was at this time the official assignee in bankruptcy in that district, and he became the assignee of Williams. On the 21st day of November, 1845, Price commenced a suit in the court of chancery to foreclose the mortgage made by Scudder to him. Heither Williams nor Waddell was made a party to this suit. On the 27th of April, 1846, a decree was therein made for the sale of the premises, and providing that the master should execute to the purchaser a deed thereof, and dispose of the proceeds of the sale as directed. The premises were, on the 8th day of June, 1846, sold under the decree, by Philo T. Euggles, the master in said court, and Edward Price, the mortgagee, became the purchaser at the master’s sale.
    On September 8, 1846, the master executed pursuant to the decree a deed, and delivered the same to Price, purporting to convey the fee in the above mentioned premises. Price entered into possession of the premises, and as is found by the referee continued in possession until his death, which occurred the 26th of June, 1855. He died intestate and left six- children as his sole heirs-at-law. On the 23d of February, 1858, one of the sons commenced an action in the supreme court in the county of Hew York, against the other children and heirs-at-law of Price, for, among other things, the partition of the premises in question among them as such heirs. Such proceedings were had in the action that a judgment of partition and sale of the premises was entered on the 17th of June, 1858, and on the 10th of August, 1858, a part of the premises described in the complaint was struck off to Benjamin H Hutton, and the remainder was sold to one Cushman, who afterwards assigned to Hutton. On the 22d of March, 1859, the referee appointed in said judgment conveyed all the premises in question to Hutton. On the 22d of March, 1859, all of the heirs-at-law of Edward Price, with their respective wives and husbands united in the execution and delivery to Hutton of a deed in fee simple of the same premises.
    On the 1st day of December, 1858, one William Coulter, as administrator of the estate of Edward Price, deceased, commenced an action in the supreme court against Ehoda Williams, the widow of Ebenezer L. Williams, and William C. H. Waddell, who were the only defendants therein, for the purpose of foreclosing the mortgage already spoken of, made by Scudder to Price. At this time Bhoda Williams was dead. The complaint in this action, among other things, set forth the fact that a suit had theretofore been commenced to foreclose the same mortgage, but that neither Williams nor Waddell had been made a party to it, and that a decree had been therein made and the premises sold to Price, who received the deed from the master and entered into possession of the premises under the deed, and had remained in possession up to the time of his death, and that the plaintiff, the administrator, had remained in possession since his death.' Judgment of foreclosure and sale in that action was obtained on the 31st of December, 1858, and on the 28th of January, 1859, the premises were sold to one Gordon, who, on the same day, assigned his bid to Hutton, to whom the referee executed a deed dated January 28, 1859.
    At the time of the execution of these three deeds just above referred to, the premises mentioned in them were in the actual occupation of Frank Surgent as tenant, and he had been in occupation of the premises, either as sole tenant or jointly with others, of Edward Price during his life, and after his death as tenant of his heirs until the conveyance of the premises to Hutton, as above described. The finding of the referee as to the character of the tenancy and occupation of the premises by Surgent after the death of Price was excepted to by the defendants’ counsel as wholly without evidence to support it.
    The referee also found that “under the three deeds to him, Benjamin H. Hutton entered into the possession of the said premises and continued in possession thereof until his death, and that during all said period from the delivery of said deeds to him in 1859 until his death said Benjamin H. Hutton claimed to be the owner of said premises, and held the same adversely to all other interests.” To this finding defendants’ counsel also duly excepted as founded upon no evidence. The referee also found that Edward Price entered into the possession of the premises undpr the master’s deed in chancery on December 8, 1846, and continued in possession until his death' on the 26th of June, 1855, and during all said period Edward Price claimed to be the owner of said premises, and held the same adversely to all other interests. The referee further found that upon Edward Price’s death his heirs-at-law came into possession of these premises and continued in possession until the same were conveyed to Benjamin H. Hutton by the three deeds to him from the referee in partition, from the heirs of Edward Price and from the referee in the foreclosure proceedings of Coulter, adm’r, v. Waddell, and that during all that period the heirs of Edward Price claimed to be the owners of the premises, and held the same adversely to all other interests. Counsel for defendants also excepted to these findings of fact as without evidence to support them. The referee found that the plaintiffs had established title to the premises in question, and gave judgment accordingly. This judgment was affirmed at general term, and from the judgment of affirmance the defendants have appealed here.
    
      John Townshend, for app’lts; Joseph H. Choate, for resp’ts.
   Peckham, J.

This case has already been before this court and is reported in the 112 N. Y., 93 ; 20 St. Rep., 223. The defendants’ counsel claims that the case is now res adjudicate as there is no fact existing in the case now before us which did' not exist at that time, and that this court then decided upon those facts the plaintiffs were not entitled to judgment. The counsel is mistaken in his claim. The only point decided by this court on the former appeal was as to the effect of the attempted foreclosure by the administrator of Price against Waddell, the assignee in bankruptcy, wherein Waddell was made a party, but not in his official capacity. We held that in order to cut off his interest as assignee it was indispensable that the suit should have been brought against him in his representative or official character, or that it should in some way appear on the face of the proceedings that they related to, or affected the bankrupt’s estate. We held that the complaint and proceedings in that foreclosure suit did not comply with this rule, and as the plaintiffs claimed to have made title under that foreclosure suit, the judgment founded upon it could not be sustained. The counsel for the plaintiffs asks us upon this hearing substantially to review and reverse our former determination upon this point, and he insists that the case, as now presented, differs in material respects from that which was presented before, and that upon those differences it should be held that the interest of Wad-dell, the assignee in bankruptcy, was cut off by the foreclosure suit in question. We fail to see that any material change has been made in the facts relative to this question from what they appeared upon the former appeal. It was assumed then, as it appears now, that upon the bankruptcy of Williams his title-passed to Waddell, and that Waddell took and held it in his-official and representative capacity, having no private, individual or beneficial interest of any kind. Whether Waddell knew that-the foreclosure in question related to land owned by his assignor, Williams, did not appear upon the former appeal, but that fact we-held to be immaterial. We so regard it now. It does not now, any more than on the former appeal, appear on the face of the-proceedings that they related to or affected the bankrupt’s estate.

Our attention, however, is now called to the case of Wagner v. Hodge, reported in 34 Hun, 524, and affirmed in this court without an opinion in 98 N. Y., 654. It is claimed by the counsel for the respondents that the principle decided in that case is applicable here, and that inasmuch as the assignee in bankruptcy had no other interest than as such assignee, the judgment in the foreclosure suit effectually cut that off. What was really decided in the case in Hun regards the rights of a bona jide purchaser of real estate. The learned judge in the course of his remarks said that probably the rights of the assignee were cut off by the judgment in foreclosure in that case; but the effect of such judgment' was not directly decided. The affirmance of the case in this court-without an opinion, of course, did not affirm more than was actually decided below. We see no reason to reverse our former" ruling and, therefore, we are brought to a consideration of the-other facts in the case.

It is claimed by the learned counsel for the defendants that the -circumstances under which Edward Price entered into possession of the premises in question, under the master's deed in the first foreclosure proceedings of Price v. Scudder, rendered his possession that of a mortgagee in possession, and hence he did not inaugurate a possession adverse in its nature to the mortgagor or those claiming through him. He urges that the possession of Price being that of a mortgagee in possession, the mortgagor or his assignee had the right at any time within ten years of the -entry of the mortgagee to bring an action to redeem the property by paying the amount due on the mortgage, and that before the ten years elapsed, Price, the mortgagee in possession, died. It is then urged that there is no evidence that the heirs at law ■of Price took possession, but that the evidence is uncontradicted that his administrator, Coulter, did take such possession, and that while in possession he commenced an action to foreclose this very mortgage, and the complaint in that action was an admission that the mortgage existed and was a lien upon the premises covered by it; and hence the period of possession by the administrator cannot be added to that of the mortgagee in possession, Price, in order to make out the necessary ten years for the limitation of an action on the part of the mortgagor or his assignee to redeem the premises from the lien of the mortgage by paying the amount due thereon.

In this way the defendants claim to have shown that up to the time of the giving of the deed to Hutton in 1859, upon the sale under the second foreclosure, no adverse possession had in fact been maintained and that it is only from the time when that deed was delivered, in January, 1859, or when the other deeds from the heirs of Price to Hutton and from the' referee in the partition proceedings to Hutton were delivered, which delivery was in April, 1859, can it be said that the adverse possession on the part of Hutton really commenced. And it is claimed that the finding of the referee that Hutton from 1859, down to the period of his death in 1884, remained in possession of the premises, claiming .adversely to all interests, is without evidence and the exception on that ground is well taken.

If it can be shown that there is any evidence to support the finding of the referee as to the adverse character of the possession of Hutton from 1859 to 1884, continuously under a claim of title, the judgment must be affirmed without considering the various ■questions which the counsel for the defendants has so ingeniously presented, arising out of the facts already detailed, and occurring between 1835 and 1859. The evidence upon the question of adverse possession since 1859 shows that Louis and Frank Surgent ■entered into possession and occupation of the premises in question in 1853, as tenants of Price, the then mortgagee in possession, and that they remained there until the death of Price in 1855, and subsequently to that time and until the spring of 1858, when ■Louis Surgent sold and transferred to Frank whatever interest he had in the premises. Whether between 1855 and 1858 the Surgents were tenants of the heirs of Price, or took under the administrator of Price, it is unnecessary on this branch of the case to say; but at any rate Frank Surgent was in the occupancy of these premises at the time when Hutton took his deed in 1859, and from 1859 until 1865 Hutton was in possession of the premises (by this same Frank Surgent as tenant), and claiming to own the same in fee under the deeds above mentioned. Frank Surgent testified distinctly that he did not pay any rent after his brother left, which was in 1858, and that Mr. Hutton said it would not be necessary to pay any more rent; he was satisfied with the witness’ occupation of the land. Upon the evidence in the case it cannot be disputed that Surgent, up to the time that he left in 1865, recognized Hutton as his landlord and his occupation of the premises was under Hutton. Thus from 1859 up to 1865 there is beyond any question an adverse possession on the part of Hutton proved in this case and counsel for defendants concedes such to be the fact.

In 1865, while he was such tenant of Hutton, Surgent transferred his occupancy of the premises and all the rights that he had to one Bischoff, who paid him and who thereupon went into the occupancy of the land in the same way that Surgent had occupied it, which was as a vegetable garden. It may be assumed that Surgent was only a tenant at will, and it is at this point that the learned counsel for the defendants claims the adverse character of the holding of Hutton was determined, and he founds it upon the principle that a tenant at will cannot transfer any of his rights to an assignee or a transferee; that his tenancy is of such a nature that it necessarily ends the moment he makes a transfer and surrenders the occupancy and the person who comes in is a trespasser and does not hold under the former landlord. This is-beyond question true provided the landlord choose to so regard it; but here is the fact that Surgent assumed to transfer all the rights, which he had, including the right of occupation, to Bischoff, who assumed to come in and occupy under the same title, and none other, that Surgent had. In other words, he assumed to come in as a tenant at will in place of Surgent, and his tenancy was recognized and acquiesced in by Hutton from the time he took such 'occupation of the premises.

It has never been held that the owner of property could not if he chose recognize the occupation of his property by another who claimed to come in under an assignment by one who was nothing himself but a tenant at will. By the claim on the part of the assignee of the right of occupancy, simply by virtue of his assignment and in no other way and by no other means, the recognition of such claim and its allowance by the owner would constitute such person a tenant at will the same as his predecessor. We think the evidence, therefore, is sufficient to show that the assignment by Surgent to Bischoff of his rights in the premises and the entry of Bischoff thereunder and the acquiescence in such entry by Hutton, constituted Bischoff the tenant of Hutton, and his occupation continued the possession of Hutton until such occupation ceased.

The evidence shows that Bischoff died about the year 1872 or 1873. Here is what the defendants claim is another break in the possession by Hutton and it is claimed that there is no proof of any further possession on the part of Hutton from that time on. The referee finds that after Bischoff’s death his widow continued in possession of and cultivated the premises, holding them under Hutton, until the defendant Mary R Townshend took possession of the premises, the said widow Bischoff having meanwhile mar-' ried one Grreb. The referee found that the defendant Mary R. Townshend took possession of the premises on or about the 1st day of May, 1884, when the defendant Francis G. Wieck entered thereon as her tenant. This finding as to the tenancy by Mrs. Bischoff is also excepted to by the counsel for the defendants as wholly without evidence. The evidence is that Bischoff remained in occupation of the premises until he died, using the premises for the cultivation of vegetables and nothing else, and after he died, his wife continued in occupation of the premises, and in the language of the witness, “ ran it the same as her husband had done.” She continued this for about a year and then married one Grreb, and they continued to cultivate the land in the same way that Bischoff had done, down to 1883 or 1884, when they left, and Wieck, the florist, came on. Under these circumstances we do not think that it can be said as matter of law that neither Mrs. Bischoff nor her husband Grreb occupied the premises as tenants of Hutton. The land at that time was comparatively remote from the settled portion of the city. It was not built upon, and during the time of the tenancy of Surgent and up to the time of the death of Bischoff, it had been used as a market garden for the cultivation of vegetables and in recognition of the paramount rights of Hutton. The continuance of the same kind of a tenancy by the widow of Bischoff might well be inferred from her continuing to occupy the land in the same way that her husband had done, and such an occupation under the circumstances would not necessarily be of such a character as the law denominates trespass. From all the facts the referee or jury might find Mrs. Bischoff to have been a tenant and her rights subordinate to the paramount rights of Hutton. And we think the same may be said in regard to the continuation of the tenancy after her re-marriage. The evidence is that the occupation continued of the same nature as during Bischoff’s life time, and that the land was cultivated in the same manner and for the same purpose up to the time when Greb and his wife left the premises.

Considering the fact that Edward Price had been in possession of the premises from 1846 until his death, and that his heirs claimed to be in possession from the time of his death until the sale by the referee in the partition suit between such heirs, and that upon that sale Hutton became the purchaser and went into possession, claiming title in fee and continued so confessedly until 1865, when these various tenants succeeded each other, as already stated, we cannot say as matter of law that there was no evidence to sustain the finding of the referee that Mrs. Bischoff, after her husband’s death, continued as tenant of Hutton in occupation of the premises until she left in 1883 or 1884.

There is another fact which the defendant confidently relies upon as breaking the continuous character of the adverse possession on the part of Hutton. The referee finds that on the 10 th of January, 1873, Mary M. Townshend, the defendant, received, a deed from George Law and his wife, purporting to convey the premises in question, and she claims that Law had become the owner of the equity of redemption in the premises owned by Waddell as assignee in bankruptcy of Williams. The referee also finds that in 1875 defendant, Mary M. Townshend, built a fence around the premises in question,'and that her entry thereon for the purpose of building it was peaceable, but there was no proof that Hutton had any knowledge of it. This entry by the building of the fence is claimed by Mrs. Townshend to constitute a termination of the possession of Hutton, and the commencement, of her own. Building a fence around a lot may, under some circumstances, constitute a taking of possession of such lot, but we cannot say that in all conceivable circumstances such act does necessarily constitute as matter of law such taking possession.

In this case we have the fact testified to that from the time Hutton took his deeds of these premises, up to the time when Greb and his wife left them in 1883 or 1884, they were in the actual occupation of some one other than the defendant Townshend. In other words, it appears that Surgent occupied and cultivated the premises as Hutton’s tenant until 1865; that Bischoff then went in and cultivated the premises in the same way and in the same character as Hutton’s tenant until his death in 1872 or 1873; that Mrs. Bischofí continued the occupation and cultivated the premises in the same way until she married Greb, and that she and Greb continued the occupation and cultivation of the premises until they left, as stated. The building of the fence does not appear to have interfered in any degree with the occupation of the premises as they had been theretofore occupied, and there is no proof that by the building of the fence the slightest change in the actual possession of the premises was accomplished; and it does not appear that Hutton was even aware of the building of the fence. There is no proof that any of these tenants ever by the slightest act recognized defendant Townshend as the owner or in any way as an occupant of the premises. Mow, under these circumstances, it was a question whether this act of the defendant was a mere entry upon the land in opposition to the occupants and not recognized by them, or whether it amounted to a taking possession thereof. It may be conceded that anything which amounts to an actual taking possession of property, a substantial assertion of right accompanied by the actual possession and occupation of the property, exclusive in its nature, would amount to the breaking of the adverse possession then running, and would render it necessary to commence it anew. But here, where the evidence shows that the occupation of the other party continued through this building of the fence, and in spite of it, the same as it was before, and such occupation was by the same parties in the same way and for the same purpose during the whole time of the building and for years after the destruction of the fence itself, we think that the mere building of the fence under these circumstances was not necessarily a legal, valid termination of the adverse possession on the part of Hutton then in process of maturing.

The case of Worssam v. Vandenbrande, 17 Wk. Rep., 53, is not opposed to these views. In that ease the possession of the party claiming adversely was broken by the breaking down of a fence which had enclosed the premises and by remaining on the land for three-quarters of an hour, and by erecting a post on the land, with a notice affixed, that any one wanting a lease of the land should apply to the plaintiff. Three days afterwards the post and the notice disappeared, and some years after that the defendant (the adverse claimant) built on the land. It was held that a period had been put to the adverse possession. The decision was not placed on the mere fact of the breaking of the fence. The land had been and at the time the fence was broken down was unoccupied, and the further fact appeared that from the time of the destruction of the fence for five years no act on the land hostile to the title of the true owner occurred. The absence of any such hostile act was alluded to in the judgment as one of the grounds for showing interruption of the adverse possession. After the lapse of five years the defendant, the party who had erected the fence, built upon the land; and the question, as put by the court, was, whether upon these facts there was a taking of possession of the premises by the true owner, as opposed to a mere entry ? And it was held that under these circumstances it was a taking of possession.

In Bliss v. Johnson, 94 N. Y., 235, the break in the possession was of many years duration. It was there said that where the true owner has been dispossessed and the dispossession terminates within twenty years, the possession will be considered as having returned to the true owner, and that to defeat his title the adverse possession must be continuous for twenty years.

Assuming that the dispossession here commenced in 1859, the claim of the defendant is that it terminated in 1875 by the erection of this fence. On the contrary, we think that under the facts developed the referee had the right to find that the erection of the fence by the defendant was a mere entry, and not a termination of the possession by Hutton. The referee makes this distinction in his findings, for he finds that the widow of Bischoff continued in possession and cultivated the premises, holding under Hutton until the defendant Mary N. Townshend took possession, which was on or about the 1st day of May, 1884, and he finds that the defendant made an entry upon the land in 1875, and enclosed it with a fence. Upon all the facts it is clear that the referee drew an inference that the building of the fence constituted a mere entry, as distinguished from a taking of possession, and upon the facts we think he was justified in so doing, and we cannot disturb his finding as founded upon no evidence.

Our examination of the case brings us to the conclusion that the finding of the referee that Hutton was in possession of the premises for more than twenty years from 1859, claiming adversely, etc., was based on some evidence and we cannot in this court disturb it.

We have carefully considered the other questions argued in the brief of counsel for respondents, and we think they have been properly disposed of in the courts below.

The judgment should be affirmed, with costs.

All concur. 
      
       Affirming 38 St. Rep., 714.
     