
    Henrietta Church, Respondent, v. Egbert S. Wright, Appellant.
    
      .Ejectment—Statute of Limitations—presumption that-a tenancy continues—proof required of adverse possession-—the recovery by the landlord of a judgment in ejeetorient for non-payment of rent does not terminate the lease ■—• denial of a -motion to issue an execution, immaterial.
    
    ■In. an action of ejectment begun in 1894 it appeared that in 1796'Stephen Van Rensselaer leased the property in fee to Thomas Hayes, reserving certain rents and a right to re-enter for their non-payment; Hayes went into possession and in 1858 One John Young conveyed the premises to the defendant, “ subject ■only to all demands that may be made a lien hereafter by Stephen "Van .Rensselaer; or his heirs, from this date.” In 1864 the successor in title of ■ ¡Stephen "Van Rensselaer brought ejectment against the defendant for nonpayment of rent, and on November-21, 1866, a judgment was entered therein in his favor, but in the meantime, on May 2, 1864, ."Van Rensselaer transferred All his interest in the property to James Kidd and Peter Cagger, who, on July 8, 1878, conveyed it to Walter S'. Church, under whom the plaintiff claimed title.
    ■On the trial before a referee he found that no rent had been paid since 1858; that ■ the defendant/entered upon the premises "auidor a- ¡Claim of title;' exClusive of ■ any other right, founded upon the deed from Young, and that he had been in continued possession thereof since that date. He also found that the judgment of November 24,1866, terminated the lease, hut that the evidence failed to establish, ah adverse possession for twenty years on the part of the defendant.
    
      LTeld, that the. judgment was, in substance, correct;
    That "as the plaintiff entered, as appeared by the deed from Young, subject to the lease, the plaintiff was entitled to claim that, under section 873 of the Code of , Civil Procedure, adverse possession would not commence to run as against her until.the expiration of twenty years after the lease was terminated in, 1866;
    That in order to rebut the presumption, that the possession acquired as ,a tenant was subordinate to the title of the landlord, it was necessary to. show a Sur- ' ' Tender'of the possession by the tenant to the landlord, of something equivalent to it, bringing home to him the knowledge of an adverse claim on the part of the tenant;
    That the mere recovery of the judgment in 1866 could not operate as a surrender as the tenant had a right to redeem after execution issued thereon, and, therefore, the continued possession of the tenant was not necessarily hostile to the plaintiff and her predecessors in title;
    That as no execution was ever issued upon the judgment it did not appear that the defendant had ever relinquished his right to redeem.
    That, even if the lease was terminated by the unexecuted judgment, secticm 373 of the Code was applicable to this case;
    That it was not erroneous to refuse to allow the defendant to prove that a motion was made in 1888 for' leave to issue execution upon the Van Bensselaer judgment, and that upon an appeal to the General Term the motion was denied;
    That if such evidence disclosed the fact that the defendant had paid the rent and thus discharged the judgment it was immaterial; that if the granting of the order was discretionery it was also immaterial.
    Landon, J., dissented.
    Appeal by "the defendant, Egbert S. Wright, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Albany on the 12th day of December, 1891, upon the report of a referee.
    
      W. & G. W. Youmans, for the appellant.
    
      Marcus T. Hun, for the respondent.
   Merwin, J.:

This is an action of ejectment, and by the judgment the plaintiff recovers the possession of about thirty-one acres, of which the defendant has been in possession since 1858.. The main question, here is, whether the referee erred in holding that the defendant had not made out the defense of adverse possession. The action was commenced April'3, 1894.

On the 13th of January, 1196, Stephen Van Rensselaer was the owner and in possession of a farm in the town of Berne, of which the premises in question are a part. At that date, Yan Rensselaer and one Thomas Hayes mutually executed, sealed and delivered an indenture, called a manorial lease in perpetuity, which provided for the payment of certain yearly rent by Hayes, his heirs and assigns, and gave to Yan Rensselaer, his heirs and assigns, in the usual form,, the right to re-enter for non-payment of rent. Hayes entered into possession under the lease.

On the 29th of March, 1858, John Young; by warranty deed, conveyed to the defendant in- this action forty-seven aeres, párt of the original farm, which included the- premises here recovered. ' In this deed, after.the description, -there was the following clause: “ Subject only to all demands that may be made a -lien hereafter by Stephen Van Rensselaer or his heirs, from this date.” ' On the 18th .day of April,- 1864, -Stephen Van Rensselaer, son .of the' original grantor, and who had become the owner of all his fights, in the property and in -the - covenants and conditions in the deed, commenced in the Supreme Court an action of ejectment against' the defendant Wright to -recover the possession of the farm,' for and by reason of a breach of the covenant for the payment of rent,..and on the 24th of H"ovember,1866, a judgment was duly entered awarding to the plaintiff therein the possession of that part of- the farm of which Wright was in .possession under said lease, and which was the same covered by thé deed from Young.

' On the.2d of May, 1864, Stephen Van Rensselaer transferred all his interest in the property and covenants to James Kidd and Peter Cagger, and oh the 8th of July, 1878, Walter' S. Church became tlie owner of the -same, and thereafter ", and before, the - commencement of this action the plaintiff became the owner of the same.

It is found by the referee that no rent has been paid for or "on account of the premises here recovered since 1858; that at the time 'of the commencement of the action the defendant was. in the actual occupation of the same under said lease; that the defendant entered into possession thereof under a claim, of title exclusive of any other right,-founding.'said. Maim upon'the dfeed from Young as-being a conveyance thereof, -and had been in the continual possession thereof under the-same claim ever since the'year 1858. As matter of law, the referee found that the judgment- of 1866 terminated the '.lease, and that after the entry thereof no rent accrued-Upon or under' the lease, and that the evidence failed to establish an adverse possession for -twenty years by the defendant as against the plaintiff;

-It is very clear -that the possession of the. defendant was subservient to the lease at least down to the time of the-entry of the judgment .in 1866. It had been recognized by him in a deed of a portion of the premises iii 1858. -The presumption- was that -he- was in under the lease; (Bradt v. Church, 110 N. Y. 537.) That such was the fact is in substance conceded. It is, however, claimed by the defendant that by the judgment the lease was terminated, and that at the date of its entry an adverse possession by the defendant commenced to run, which after the lapse of twenty years formed for him a perfect defense. The claim of the plaintiff is that if the lease was terminated by the judgment, the plaintiff is entitled to the benefit of the provision of section 373 of the Code of Civil Procedure, and that adverse possession would not commence to run as against the plaintiff until the expiration of twenty years thereafter, and so had not continued for twenty years before the commencement of this action.

Section 373 is as. follows : Where the relation of landlord and, tenant has existed between any persons, the possession of the tenant is deemed the possession of the landlord, until the expiration of twenty years after the termination of the tenancy; or, where there has been no written lease, until the expiration, of twenty years after the last payment of rent, notwithstanding that the tenant has acquired another title, or has claimed to hold adversely to his landlord. But this presumption shall not be made after the periods prescribed in this section.”

This section has received judicial consideration in several cases: (Whiting v. Edmunds, 94 N. Y. 309; Bedlow v. N. Y. Floating Dry Dock Co., 112 id. 265 ; Church v. Schoonmaker, 115 id. 570; Hasbrouck v. Burhans, 42 Hun, 376.) These cases support the proposition that under the section referred to, presumptively, adverse possession does not commence to run until twenty years after the expiration of the tenancy. The défendant, therefore, to sustain his view, must' show something more than a simple termination of the tenancy.

• In the Whiting case (p. 314) it is said: The possession of the tenant in subordination to the title of the landlord continues not only during the running of the term, but is presumed to be such and to remain unchanged until twenty years after the end of thp term, and notwithstanding any claim by the tenant or his successors of a hostile title. (Code, § 86; Code of Civ. Proc. § 373.) This presumption may be rebutted, but, to do so effectively and initiate an adverse holding, the tenant must surrender the possession to the landlord, or do something equivalent to that, and bring home to him knowledge of the adverse claim. (1 Washb. on Real Prop. [3d ed.] 402; Jackson v. Stiles, 1 Cow. 575; Thayer v. Society of United Brethren, 20 Penn. St. 62; Towne v. Butterfield, 97 Mass. 105.)”

Has the defendant met the requirements of this rule ? The referee in effect finds that he has not. The defendant argues that the act of the plaintiff or her predecessor in entering the judgment Was of such a character that, necessarily, thereafter the possession of the defendant was adverse.

It is to be observed that the action was ejectment for the nonpayment of rent. In such an action, under the law as it then stood (R. S. pt. 3, chap. 8, tit. 9, §§ 32, 33, 34 [2 R. S. 505, 506]), the tenant at any time before judgment could by the payment of the rent in arrear and the costs stop all further proceedings in the cause. If at anytime after the judgment, within six- months after possession of the premises had been taken by the landlord under any execution issued upon the judgment, the tenant paid or tendered the rent in arrear at the time of such payment and the costs, all further proceedings in the cause ceased and “ such premises shall be restored to the lessee, who shall hold and enjoy the demised premises without any new lease thereof, according to the terms of the original demise.” In case the rent in arrear and costs remained unpaid for six months after execution, then the lessee and his assigns, and all other persons deriving title under him-, .were barred of all relief in law or equity, and the landlord thenceforth held the premises free and discharged from the lease.

Such being the character and effect of the judgment, and the rights of defendant thereunder, it is apparent that the continuance by defendant in- possession was not necessarily hostile to tbe rights of plaintiff or her predecessor, and would not of itself initiate ■adverse possession. It would not indicate that the defendant repudiated- all right or claim of the-plaintiff. The entry of the judgment did not bar the defendant, and the plaintiff therein never obtained execution on his judgment, and never obtained possession under it. The defendant, for aught that appears, never relinquished his right to redeem, and as late as 1888-it'appears that, on a motion for leave to issue execution, the defendant claimed that the judgment, rent •and costs had been fully paid and satisfied. As the judgment was ■never executed, and the defendant never relinquished his right to redeem, I see no basis for the argument that as' matter of law defendant’s adverse possession should be deemed, to commence at the date of the entry of the judgment. '

It is not, I think, clear that the lease was terminated by the unexecuted judgment of 1866. If it was not, the defendant here has no defense to the present action. His adverse claim, such as it was, was founded on a conveyance that recognized the lease. Besides, his status was fixed by the judgment. If that operated to terminate the lease no good reason is apparent for relieving the defendant from the effect of section 373 of the Code. He never surrendered the possession to the landlord or did anything equivalent to it.

The defendant offered to show that in November, 1888, a motion was made by the 'owner of the judgment of 1866 for leave to issue execution, and that this motion was on appeal to the General Term denied. It was not suggested that the title of the plaintiff or the existence of the lease, or the right of possession of plaintiff or her predecessor, was adjudicated upon or involved. If the question was whether the defendant had actually or presumptively paid the rent (Van Rensselaer v. Wright, 56 Hun, 39), and so relieved himself, from the judgment, that would not be important for defendant on the issues he-e. If the granting of the order was discretionary (S. C., 121 N. Y. 626) its denial would not affect the rights here. It is not apparent that any error was committed in excluding the offered evidence.

No other question needs to be specially considered. The judgment should be affirmed.

All concurred, except Landon, J., dissenting. •

Landon, J. (dissenting):

The referee found that the judgment recovered in 1866 by Van Rensselaer against this defendant in ejectment for the non-payment of rent terminated the lease. The Court of Appeals, speaking of that very judgment, said : “ The effect of the judgment was to terminate the lease.” (Van Rensselaer v. Wright, 121 N. Y. 626.)

But the referee held that the evidence failed to establish an adverse possession for twenty years by the defendant.

The evidence was to the effect that the defendant had continued in possession ever since the judgment, without redeeming and without paying any rent. Had lie done either, the relation of landlord and tenant would have been reinstated. But as it was terminated by the judgment, and was in no wise reinstated, the continued possession of the defendant down to 1894, when this action was commenced, was not under that relation, and since the plaintiff’s claim, rests upon that relation and upon no other; it necessarily fails.

It should be noticed that the six months after possession of the property awarded to the plaintiff in such an action has been, delivered to him by virtue of an execution,” within which ,tlie defendant has a right to redeem after judgment (Code Civ. Proc. § 1508), or, as it was expressed in Van Rensselaer v. Wright (supra), by which- the- “ force and effect (of the judgment) could be averted by the defendant’s paying up-his arrears of rent and thus keeping the possession . of the property,” never arrived, because the plaintiff in the judgment of 1886' never had the possession delivered to him. Thus this defendant, during the twenty-eight years of his undisturbed holding, after the termination of the lease, lias never been placed in a-, position- where he must elect to reinstate himself under the lease, or lose his right of possession.

Since the. termination of the lease the defendant lias held peaceable possession- of the premises, claiming adversely,, no matter if. without original right, to the perfect- exclusion of any , possession of ' the plaintiff or her grantors or under them, His adverse possession is,, therefore, complete. (Code Civ. Proc. § 365.)

Moreover, the defendant in 1858 originally entered into possession " under a warranty deed from John Young, conveying the premises to him, “ subject only to all demands that may be made a lien hereafter by Stephen Van Rensselaer, or his heirs from this date.” All such, demands were merged in the judgment of 1866. • Under his judgment,. we may assume- that Stephen Van Rensselaer or his. grantees might at any time have taken possession of the. premises, but as neither he nor they did so within- twenty years, nor have been able to. do- since, the plaintiff lacks both -the -seisin. and possession, which section 365 prescribes as the condition precedent to her right t.o maintain the action. If cases like Bradt v. Church (110 N. Y. 542); Whiting v. Edmunds (94 id. 314); Bedlow v. N. Y. Floating Dry Dock Co. (112 id. 263) apply, they do so by defining the limitation of - plaintiff’s rights, under the lease ; such rights are presumptive merely. The cases hold that when the relation of landlord and tenant is once shown to exist, it is presumed to continue. But for the-judgment of 1866 this presumption would exist here. But that judgment terminated the lease and thus • rebutted the presumption. The burden manifestly rests upon the plaintiff to show that since that judgment the defendant has done something to reinstate the old relation or to recognize its continuance. Nothing has been shown. Therefore, I advise a reversal of the judgment.

Judgment affirmed, with costs.  