
    C. Adelbert Becker, Appellant, v. Maggie McCrea and Lucille Clark Becker, Appellants, Impleaded with Annie Brevoort Eddy and Others, Respondents.
    Second Department,
    February 23, 1912.
    Partition — pleading — claim of ownership by adverse possession and rights as mortgagee in possession — mortgagee in possession not deprived, thereof until mortgage paid — payment of mortgage prior to distribution of proceeds in action of partition — evidence — payment — presumption.
    Although defendants in an action of partition claim ownership by adverse possession, their rights as mortgagees in possession after default can be determined if that right is also asserted by answer.
    A mortgagee lawfully in possession after default of the mortgagor will not be deprived of possession until the mortgage has been paid; the possession need not have been given under the mortgage nor with a view thereto.
    The right of a mortgagee lawfully in possession after default to have the mortgage paid prior to the distribution of proceeds in an action of partition, may be established upon very slight evidence.
    Where a mortgagee is lawfully in possession after default, there is no presumption of payment of the mortgage arising after the expiration of twenty years.
    Appeal by the plaintiff, 0. Adelbert Becker, and the defendants, Maggie McCrea and another, from a judgment of the Supreme Court in favor of certain of the defendants, entered in the office of the clerk of the county of Westchester on the 2d day of August, 1910, upon the decision of the court rendered after a trial at the Westchester Trial Term, a question of fact having been submitted to the jury, and also from an order entered in said clerk’s office on the 20th day of July, 1910, denying the appellants’ motions for a new trial made upon the minutes.
    
      Charles H. Tuttle, for the appellant Maggie McCrea.
    
      Harlan F. Stone, for the plaintiff, appellant, and Munson & Roberts, for the appellant Lucille Clark Becker, adopting the brief of the appellant Maggie McCrea.
    
      J. Addison Young [William S. Beers with him on the brief], for the respondents.
   Hirschberg, J.:

This case has been tried three times, the first two times without a jury, and on the present occasion with a jury, at the request of the appellants. There appears to be no difference in the facts as elicited on the different trials, and the only questions presented are of law.

The action is brought for the partition of certain real estate in the county of Westchester, which was owned in 1877 by Jane B. Eddy, now deceased. In that year she conveyed the property to one Bernard Spaulding and took back a purchase-money mortgage. Spaulding conveyed the property the same year to the defendant Maggie McOrea, subject to the incumbrance. The next year an action was 'brought by Mrs. Eddy to foreclose the mortgage, which action was prosecuted to judgment, but no sale was had thereunder. In the year 1879, after the entry of the foreclosure judgment, Mrs. Eddy took possession of the property, and she and her devisees, who are now made defendants in this action, have ever since occupied it, cultivating the land, raising and using the crops and building a barn for use upon the premises. No accounting has been had or asked for, and it may possibly be assumed, therefore, that the occupation of the property is deemed to have been profitless.

After a period of twenty-five years of such open and undisputed possession had elapsed the defendant Maggie McCrea conveyed an undivided part of the premises to the plaintiff, and this action was then brought by him in partition. Mrs. Eddy died the next year, and her devisees and the executors and trustees of her will, upon whom her title devolved, were then made parties defendant. They answered the complaint in substance as Mrs. Eddy had done, the devisees claiming to own the premises in fee, subject to the trusts and provisions contained in the will, and setting up adverse possession in the testatrix and themselves for a period of more than twenty years.

On the first trial the court found that Mrs. Eddy as mortgagee had entered into possession of the property with the express knowledge and assent of the owner, and that such possession as mortgagee for more than twenty years was adverse, and was sufficient to support the judgment then rendered, dismissing the complaint on the merits and adjudging the title in her devisees as tenants in common. The judgment was affirmed by this court (Becker v. McCrea, 119 App. Div. 56), but was reversed by the Court of Appeals (193 N. Y. 423) on the ground that inasmuch as possession by a mortgagee can only be with the consent, express or implied, of the owner of the equity, it could not be in hostility to the legal title, and, therefore, could not be adverse. The judgment entered on the second trial was vacated for a defect of parties.

On the last trial, now under review, the court submitted to the jury a question agreed upon by the parties, namely, “From 1888 to April, 1904, did Mrs. Jane B. Eddy continually hold possession of that fifteen-acre parcel described in the Spaulding mortgage as a mortgagee in possession under that mortgage ? ” which question the jury answered in the affirmative.

The judgment appealed from decrees partition of the property, but requires the payment of' the mortgage prior to the distribution of the proceeds.

The main point raised by the appellants is that as the answer of the Eddy defendants claimed ownership by adverse possession, the question of their possession under the mortgage could, not be lawfully submitted to or passed upon by the jury. Undoubtedly the Eddys claimed to own the property, yet I think they were entitled under the terms of the answer to insist upon their rights as mortgagees in possession. The learned counsel for the appellants asked the court to rule, after the Eddy defendants had rested, that the answer set up only the claim of mortgagee in possession, to which request the court ruled that the answer might be regarded as setting up both claims, but subsequently the court required an election, in response to which ruling the respondents elected to limit their claim to their rights as mortgagees in possession. In Madison Ave. Baptist Church v. Oliver St. Baptist Church (73 N. Y. 82, 94) the court said: “It is ordinarily sufficient that a mortgagee is lawfully in possession after default upon the mortgage. The court will not then deprive him of the possession until his mortgage has been paid. The possession need not he given under the mortgage, nor with a view thereto.” This doctrine was expressly approved in the recent case of Barson v. Mulligan (191 N. Y. 306), the court saying (p. 321): “It is to be noted, moreover, that this court seems to be committed to the doctrine that the mortgagee’s possession ‘ need not be given under the mortgage, nor with a view thereto. ’ ” It seems to be well settled that very slight evidence is sufficient to establish the claim of a mortgagee lawfully in possession of the property, and it cannot be said that the verdict of the jury in this instance is against the weight of evidence.

The appellants claim that the mortgage has been paid by the lapse of time; in other words, while there is no claim of actual payment, that a presumption of such payment arises after the lapse of twenty years. This contention necessarily falls with the determination that the Eddys were in possession as mortgagees. This appears to be conceded by the appellants. Subdivision 1 of point 2 in their brief states that “ Unless Jane B. Eddy was a mortgagee in possession at the time of the commencement of this action, there was then a conclusive presumption of law that the mortgage was paid. ”

There are other questions presented on the appeal which have been examined and are not deemed to require minute dis-mission. The result reached appears to be just and equitable, and nothing is found which compels a reversal.

The judgment and order should be affirmed.

Jerks, P. J., Woodward and Rich, JJ., concurred; Burr, J., not voting.

Judgment and order affirmed, with costs.  