
    Levi R. Smith, App’lt, v. Edwin D. Faulkner, Resp’t.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed April 14, 1888.)
    
    1. Real property—Boundary lines—Location—Acquiescence—Effect of.
    The practical location of a boundary line, and an acquiescence therein by the parties for more than twenty years, is conclusive as to the location of the line.
    2. Deed—Void for champerty—Land must be occupied under a TITLE.
    Under the statute of limitations, the adverse holding which will ripen into a title in twenty years, need only he under a claim of title. But under the statute of champerty, the possession of one day, or one year, or of any other period short of twenty years, which will render void a deed of the same lands to any other person, must be under a title adverse to that of the grantor in such deed.
    Appeal from a judgment dismissing the complaint, entered on the report of a referee.
    
      A. O. Pickard, for app’lt; Sessions & Palmer, for resp’t.
   Dwight, J.

—The action was ejectment for the strip of land included between two lines claimed respectively by adjoining owners, as the true boundary between their lands.

The two parcels were first conveyed, in severance, by Silas Purdy, in 1833, to his two daughters, Patience Smith and Almira See, intending to bound them, the former on the north, the latter on the south, by a common division line. By some error in the survey or description, the north and south lines, respectively, did not in fact coincide. Patience Smith’s deed of 1833 was lost or destroyed, and its place was supplied by a deed of December 18, 1857. The plaintiff is the grantee of Patience Smith, the defendant, by mesne conveyances, of Almira See.

The undisputed evidence showed that by practical location and an acquiescence of nearly fifty years, before the defendant acquired his title, the north line of the strip in question had been established as the true division fine between the two parcels of land; that at the time of its location, in 1834, that line was marked by a permanent monument at its east end, and by marked trees along its extent, to the west; that, nearly thirty years before the defendant acquired his title, a fence was built by the owners, at that time, substantially on the line so established, and that the two parcels were occupied by their respective owners up to that fence, on either side, until February, 1883, when the defendant assumed to take possession of the strip in question. He caused the south line of the strip to be run, and took possession up to the new fine.

His deed which he received in 1880, bounded him on the south " by the lands of Patience Smith,” who was still the owner and in the actual occupation of the parcel on the south, and up to the line established in 1834.

April 7th, 1884, Patience Smith conveyed to the plaintiff by a discription which bounded him on the north by a line commencing on the east, at the monument which marked the east end of the division line established in 1834, and ran "thence west along the north line of lands deeded by Silas Purdy and wife to Patience Smith.” The deed also contained this further description "this grant is intended to convey the land deeded by Silas Purdy and wife, to Patence Smith by deed, dated December .18, 1857, and since that time occupied by her.”

The plaintiff commenced this action April 15, 1884.

The referee found that the deed from Patience Smith to the plaintiff, did not include the strip of land in dispute; that at the date of that deed Patience Smith was not in possession of the strip, and had not been since February, 1883; but that from the last mentioned date the defendant had been in possession, claiming adversely to Patience Smith, under the the title derived by him from the deed of his grantor; and he found, as conclusion of law, that the plaintiff was not entitled to recover the possession of the strip of land in question, and dismissed his complaint.

The decision was evidently based upon the assumption bhat the plaintiff’s deed, so far as it purported to convey the strip of land in question, was void for champerty; in which respect the learned referee was clearly in error.

Patience Smith’s title was perfect up to the line established in 1834, which was the north line of the strip. The rule has become elementary that the practical location of a boundary line, and an acquiescence therein by the parties for more than twenty years, is conclusive of the location of the line.

In Reed v. Farr (35 N. Y., 113), the court say “the evidence so furnished of the correct location of the line is of so high a character as to admit of no contradiction.” The line so established in this case, was, therefore, against all other evidence whatsoever, by survey or otherwise, “the north line of the land deeded by Silas Purdy and wife to Patience Smith,” which was the definition of the plaintiff’s north fine in the deed from Patience Smith to him. Moreover on the day when the defendant took his deed, Patience Smith was in actual possession of the strip of land in question, not only, as the referee finds, “claiming to own the same,” but under an indisputable title, of' course, adverse to that of the defendant’s grantor. If, therefore, the defendant’s deed had assumed to convey to him any part of the strip in question, it would have been, pro tanto, void. But it did toot assume to do so. It bounded the land conveyed to him “ on the south by lands of Patience Smith.’.’

The lands of Patience Smith, as we have seen, were Bounded on the north by the north line of the strip, hence by his deed the defendant took no title to land south of that line; his acts of possession of any portion of such land were acts of trespass, and his possession was without color or title.

„ The language of the statute of champerty is “ every grant of lands shall be absolutely void if, at the time of the delivery thereof, such land shall be in the actual possession of a person claiming under a title adverse to the grantor.”

The defendant’s title was not adverse to that of Patience Smith; it was by the terms of his deed, limited by her title; because the description in his deed stopped at the north line of her land. His claim was adverse to tier’s but not the title under which he claimed.

Under the statute of limitations the adverse holding which will ripen into a title in twenty years, need only be under a claim of title. But under the statute of champerty the possession of one day or one year—or of any other period stiort of twenty years—which will render void a deed of the same lands to any other person, must be under a title adverse to th'it of the grantor in such deed.

This distinction is clearly made by Selden, J., in the case of Crary v. Goodman 22 N. Y., 170). In Dawley v. Brown, (79 id., 390), the court by Raparlo, J., say “he (the person in possession) must claim under some specific title. What the title is must be disclosed that the court may see that it is adverse to that of the grantor in the deed assailed. ” In the case of The Crooked Lake Navigation Coompany, v. The Keuka Nav. Co., (37 Hun, 12) this court said “It is not necessary that the title should be valid, but the color of title must purport to convey an estate adverse to that of the grantor in the deed,” which is sought to be invalidated .

Here the title, under which the defendant claims, is disclosed, and the court sees that it is not adverse to that of Patience Smith, the grantor in the deed to the plaintiff. His deed, which constitutes his color of title, does not purport to convey an estate adverse to hers.

There is, therefore no ground for holding that the deed of Patience Smith, so far as it purported to convey to plaintiff the strip of land in question, was void for champerty;, nor for the finding that the deed “did not include the strip of land in dispute.”

On the contrary by the undisputed evidence, on the trial under review, the plaintiff took good title to the premises described in the complaint and was entitled to recover the possession from the defendant.

The judgment must be reversed.

All concur.

Judgment reversed and new trial ordered before another referee; costs to abide event.  