
    WILLIAM MOORES v. JOHN TOWNSHEND and CHARLES LEHMAN.
    
      Partition judgment, who not affected by—Ejectment, possession under an assessment sale, when a defence.
    
    One in possession of premises claiming a right for a term of years is not affected by the judgment in an action brought after the commencement of such possession for a partition of such premises, to which he is not a party.
    Possession of premises founded on a sale by the corporation of the City of New York for an unpaid assessment, which possession under some authority derived from that corporation commenced before the plaintiff in ejectment acquired title, constitutes a good defence to.the ejectment action, where there is no proof showing the invalidity of the proceedings under which such possessor claims the right of possession, or otherwise showing that he took possession unlawfully, and no proof that the plaintiff in ejectment or anyone of his predecessors in title ever was in possession.
    Before Sedgwick, Ch. J., Freedman and Ingraham, JJ.
    
      Decided February 14, 1887.
    
      Application for judgment on a verdict for the defendants, directed by the court below subject to the opinion of the court at General Term.
    The facts sufficiently appear in the opinion.
    
      L. A. Gould, attorney, and Robert L. Wansley of counsel for plaintiff on the question considered in the opinion, argued :
    Plaintiff proved a complete record title; defendants neither proved, nor attempted to prove any title whatever ; the record does not show that they make any claim of title adverse to that of plaintiff, or that their possession is hostile to plaintiff’s title.
    The law presumes that they hold or occupy in subordination to the record title of plaintiff, and plaintiff therefore is entitled to judgment. Code of Civil Procedure, § 368; Wood v. Squires, 1 Hun, 481; Stevens v. Hauser, 39 N. Y. 304; Greenleaf v. Brooklyn, &c., R. R. Co., 37 Hun, 435; Sinclair v. Field, 8 Cowen, 543, 577; 3 Wait's Actions and Defences, p. 13.
    
      John Townshend, attorney, and of counsel for defendants, on the questions considered in the opinion, argued :
    I. The direction of the verdict was right. The plaintiff had to recover upon the strength of his own title. He showed no title, (a) No possession was shown in Stansberry, nor in anyone claiming through him. Gardner v. Heart, 1 N. Y. 528; Price v. Brown, 2 Cent. Rep. 446.
    n. Any presumption of title arising from the decree in partition was entirely rebutted by the defendants, (a) The giving a lease by Townshend and the entry by his lessee was an assertion of title. Northrop v. Wright, 7 Pill, 470; Wilklow v. Lane, 37 Barb. 244. (b) Possession of land under a deed [lease] given without right in the grantor [lessor], is adverse to the rightful owner. Sands v. Hughes, 53 N. Y. 295. (c) Where no superior title is shown, possession of land is evidence of title in fee in the one in possession. Hill v. Draper, 10.Barb. 455. (d) If Townshend had not possession, his giving a lease to Breen would have been an unlawful act—a misdemeanor (2 R. S., 691, § 6); but it must be presumed he acted lawfully—that is, that he had a right to give the lease; because “no man is presumed without evidence to have done or intended to do an unlawful act.” Culver v. Rhodes, 87 N. Y. 353. (e) The deed by the Referee to Dayton was not any evidence of title. Moores v. Townshend, 102 N. Y. 392.
    III. The decree in partition was not binding upon the defendants in this action. Before the partition suit was commenced Townshend had given a lease to Breen, and Breen had gone into possession. Whether that possession was rightful or wrongful, it was a claim by the defendants of which they could not be deprived without being heard. People v. Walter, 68 N. Y. 408; Wright v. Cabot, 89 N. Y. 577; Schrauth v. Dry Dock Bk., 86 N. Y. 390; Culver v. Rhodes, 87 N. Y. 350; Moores v. Townshend, 102 N. Y. 391. Defendants could not have been removed by writ of assistance. Meigs v. Willis, 8 Civ. Pro. R. 125.
   By the Court.—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 all persons specified in §§ 1577 and 1557 of the Code of Civ. Proc., but the defendants in the action, wbt> 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 had built a house on the lot in question and he, and his successors in interest, have been in possession of said lot ever since as tenants of Townshend. Whether that possession 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 opportunity 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, 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 establish 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 his possession under, some authority derived from said corporation commenced before the plaintiff acquired title.

Now it was held by the Court of Appeals in Bedell v. Shaw, 59 N. Y. 46, that possession and claim for over twenty years, under a lease for a term of years executed by a municipal corporation upon a sale for unpaid assessments, are 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 the 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 his record title is good, must establish an immediate right of possession, and as the defendant Townshend 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 the 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, Ch. J., concurred.

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. DeGroot, dated May, 1855, conveying the premises described in the complaint; a deed from William H. DeGroot to Theodore R. B. DeGroot, purporting to ednvey certain premises; the judgment roll in an action to partition the property to which all the heirs at law of William. H. DeGroot and Theodore E. B. DeGroot were parties; a judgment in that action adjudging that the 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.

The proofs given on the trial of the conveyance of the property to William H. DeGroot, the record in the partition suit to partition DeGroot property, and of 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, were sufficient prima facie evidence of title. Greenleaf v. Brooklyn, &c., 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 conveyed the premises described in the complaint to the plaintiff in this action.

It is entirely immaterial whether the conveyance from William H. DeGroot to Theodore E. B. DeGroot covered the premises in question. The action for partition in which the heirs at law of William H. DeGroot and Theodore E. B. DeGroot were parties, made the conveyance under the judgment in that action effectual to convey all the interests of either William H. DeGroot or Theodore E. B. DeGroot.

The fact that the defendant Townshend was in possession of the premises at the time of the trial, or that he on April 22d, 1879, gave a lease of these 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 presumed 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. p. 46, and in 62 N. Y. 632, that possession and claim under a municipal tax 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 accord with it and in consequence of it, and that the law adjudges the possession of the lessee to be no greater than that of tenant for 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 judg ment.  