
    Letitia Baker, App’lt, v. Oakwood, Resp’t.
    
    
      (Court of Appeals,
    
    
      Filed October 7, 1890.)
    
    1. Limitation—Title—Advebse possession.
    Adverse possession for a period sufficient to bar the action divests the estate of the true owner and transfers it to the party holding adversely.
    3. Same.
    The undivided quarter of certain lands descended to three children, of whom plaintiff became the sole survivor in 1861 subject to a life estate in plaintiffs mother in the share of the other two children. Defendant had held the lands adversely under certain deeds and conveyances since 1859. The mother in 1885 deeded her interest to plaintiff, who brought this action. II Id, that the long continued adverse possession by defendant, without any proceedings by plaintiff after coming of age, barred the latter as to her share, and that as the mother after twenty years of adverse possession by defendant lost the estate which she might have claimed in the share of -the two other children, nothing passed by her deed to plaintiff.
    Appeal from judgment of the supreme court, general term, fourth department, affirming judgment in favor of defendant, entered on trial by the court without a jury.
    This was an action to recover the undivided fourth part of about seventy-three acres of land in the possession of the defendant, a cemetery association.
    In 1835 Richard Raynor, who is the common source of title, purchased a farm of about 154 acres, of which the lands now held by the defendant are a part, and being the owner of this farm in fee mortgaged the same to Willet and Henry Raynor to secure his bond for $15,000. July 15, 1836, Richard Raynor conveyed the undivided half of .this farm to the plaintiff’s father, Charles B. Hargin, and one John S. Baker, and they executed back to him their bond and mortgage for $14,425 for the whole purchase money. January 13,1837, Richard Raynor assigned the last mentioned bond and mortgage to Willet and Henry Raynor, the holders of the bond and mortgage first mentioned. September 1, 1838, Willet and Henry Raynor, still holding the first bond and mortgage of $15,000, assigned the same with other bonds and mortgages and collaterals to the Mutual Life & Trust Company of New York as collateral security for the payment of their own bond and mortgage given as security for a loan of $25,000 made by the company to them. On the 28th of May, 1838, Charles B. Hargin conveyed his one-fourth of the lands back to Richard Raynor, and on the 29th of March, 1839, Baker conveyed his one-fourth to Hargin. This is the interest, and under this title the plaintiff claims. On the 20th of March, 1840, Richard Raynor conveyed the whole of the farm of 154 acres, without excepting the undivided quarter that had been conveyed to Hargin by Baker, to Willet and Hehry Raynor, who took possession. The Mutual Life & Trust Company of New York, was then the holder by assignment of the $15,000 mortgage given on the whole farm by Richard Raynor. On the 5th of July, 1845, the said Mutual Life & Trust Company assigned to Horace White, of Syracuse, the debt it held against Willet and Henry Raynor, being the loan above mentioned, and also the $15,000 mortgage and all other collaterals held for the debt, for the consideration of $7,500, as expressed in the assignment. On the 5th of August, 1845, Horace White assigned the $15,000 bond and mortgage to" Hamilton White, of Syracuse, for the consideration expressed of $3,500, but did not assign the debt of Willet and Henry Raynor to the Trust Company, nor the other collaterals thereto. On the next day, August 6, 1845, Hamilton White, the last assignee of the said bond and mortgage, commenced the foreclosure of the same in his own name by advertisement. The lands were sold November 1, 1845, and he became the purchaser for the sum of $3,000, as appears by the record. No notice of the proceedings to foreclose the mortgage was served upon the widow or heirs -of Charles B. Hargin. March 22, 1848, Hamilton White, having become the owner through the foreclosure sale, conveyed the premises to Alfred H. Hovey for the consideration expressed of $7,000. May 29, 1849, Hovey conveyed the lands to Lucy Maria Raynor for the consideration of $10,000, as expressed in the deed. She took possession under this deed, deriving her title from the $15,000 mortgage which covered the whole farm of 154 acres, as her deed did. On the 23d of September, 1859, Lucy Maria Ray-nor and her husband, Henry Raynor, conveyed about seventy-three acres of the land, being the premises in question in this suit, to the defendant by warranty deed for the consideration of $15,000, which defendant paid. Since that time,"and down to the commencement of this action in January, 1886, over twenty-six years, the defendant has held and occupied the premises adversely, claiming title under the deeds and conveyances above mentioned.
    In 1840 Charles B. Hargin, the plaintiff’s father, and grantee of an undivided one-fourth of the premises under the deed from Baker, died intestate in the city of New York,'where he then resided. He left a widow and three children who -inherited his interest, subject to his widow’s dower, as follows: Letitia C., the plaintiff, born October 31, 1831, became of age October 31, 1852, married in 1854, was divorced, remained single some time and married again. The second child was Charles Hargin, born July 31, 1834, was never married and died July 8, 1861, intestate. The yormgest, Mrs. Julia Pomeroy, was born December 18, 1838, married Pomeroy February 23, 1858, had a child born •June 5, 1859, which child died in August, 1859, and she herself died in December following, intestate, and shortly before she was of age. Her husband is still living. The widow of Charles B. Hargin is still living, and before she executed the deed hereafter mentioned the title of the one undivided quarter of the premises of which her husband died seized had, as the plaintiff claims, descended under the statute and be>come vested in the plaintiff and her mother as follows: The plaintiff took one-third, of her father’s estate, or one-twelfth of the whole, directly from her father upon his decease. The plaintiff’s mother took an estate for life in the two shares that descended to the other two children upon their death, with a remainder in fee to the plaintiff as the survivor. Before the commencement of this action,' and on the 16th of October, 1885, the widow of Charles B. Hargin conveyed to her daughter, the plaintiff, all her estate and interest in the premises, in virtue of which the plaintiff -claims that the life estates that descended to her mother are merged ih the remainders, and the plaintiff as remainderman has a present right of action. The cause was tried by the court and judgment rendered for the defendant, which has been affirmed by the general term. It was held that as to the one-third which the plaintiff took directly from her father she could have sued for it on becoming of age, and not having done so she is bound now by defendant’s adverse possession, and that as to the two-thirds in which she inherited a remainder the mother could have recovered •a life estate on the death of the other two children; that the mother after twenty years of adverse possession by the defendant lost this estate and it became vested in the defendant, and consequently when the deed of October, 1885, was given the mother had no -estate to convey.
    
      W. F. Andrews, for app’lt; George F. Comstock,, for resp’t.
    
      
       Affirming 22 N. Y. State Rep., 602.
    
   O’Brien, J.

The findings of the court below are to the effect that upon the death of Charles B. Hargin, in 1840, the undivided quarter of the lands in question descended to his three children, of whom the plaintiff is one, subject to the widow’s dower. By the subsequent death of two of the children without issue and intestate the estate which the ancestor had, at the time of his death, became vested in the plaintiff as the surviving child subject to a life estate in two of these shares in the widow. But it is also found that since 1849, when Lucy Maria Baynor purchased the whole farm from Hovey, and went into possession, the whole premises have been held adversely, first by Mrs. Baynor under her deed, and since 1859 by the defendant under its conveyance from Mrs. Baynor, The heirs of Hargin became tenants in common with the other owners, and the finding of adverse possession implies that the possession of Mrs. Baynor was such as to amount to an ouster of her co-tenants. Whatever may be said in regard to the nature of Mrs. Baynor’s possession, whether hostile or not, there can be no doubt that the possession of the defendant, from the time that it purchased the land in 1859 to the time of the commencement of this action, was of such a character as to justify the conclusion that it commenced in an ouster of the heirs. It was the case of the purchase of a public corporation, organized in perpetuity, of lands to be devoted to the burial of the dead, followed by enclosing, improving and laying out the land in such manner, and devoting it to such use as was utterly inconsistent, with every other claim of title,- and this was a termination of the joint tenancy, if it was not terminated before. Zapp v. Miller, 109 N. Y, 51; 14 N. Y. State Rep., 77; Millard v. McMullin, 68 N. Y., 345 ; Florence v. Hopkins, 46 id., 182. The effect of this advei’se possession upon the life estate of Mrs. Hargin is the most important question in this case. The courts below held that its effect was not only to cut off her remedy for its recovery, but to extinguish the estate itself and vest it in the defendant. If the contention be correct that the defendant, in virtue of its adverse possession, took to itself the life estate, then Mrs. Hargin, when she executed to the plaintiff the deed of October, 1885, had nothing to convey and that deed was ineffectual.

The learned counsel for the plaintiff, perceiving the importance of this pioint, has addressed himself to its solution with most commendable learning and industry. Perhaps the highest praise that can be awarded to his argument is to record the fact that it drew from his distinguished adversary a generous but well deserved compliment at the bar. We cannot, however, assent to the proposition that adverse possession of land for a period sufficient to bar an action merely cuts off the owner’s remedy without affecting the estate. While this principle is not without the sanction of judicial authority, and that of text writers, we think that the tendency of modern decisions in this and most of the states, as well as in the federal tribunals, is against it. It was held that the effect of the English statute of limitations, 21 Jac. 1, chap. 16, was to bar the remedy but not to divest the estate. Davenport v. Tyrrel, 1 Wm. Black., 679; Beckford v. Wade, 17 Ves. Jr., 87; Scott v. Nixon, 3 Dru. & War., 388, 403; Incorporated So. v. Richards, 1 Dru. & War., 258, 289; Dundee Harbor Trustees v. Dougall, 1 Macq. II. L. Cases. 317; Digby Hist. Real Property, 159; 3 Gen. Cruise on Real Property, 430. But the construction placed by the English courts upon that statute was not acceptable to a more liberal and enlightened age. The commission of 1828, appointed to reform the anomalies and abuses of the law, reported, and parliament enacted a new statute in respect to the possession of land, 3 and 4 William IV, chap. 27, the thirty-fourth section of which not only barred the remedy in case of adverse possession but in terms extinguished the estate. Angell on Lim., chap. 2, 10, and App., 5th Ed., 15. Since the passage of this statute it is held that adverse possession for a period sufficient to bar the action divests the estate of the true owner and transfers it to the party holding adversely. Cases cited below, 49 Hun, 420 ; 22 N. Y. State Rep., 602.

But the doctrine of the English courts, giving construction to the statute of James, does not seem to have been followed in this state. It is true that Judge Co wen in the course of a long and able opinion in the case of Humbert v. Trinity Church, 24 Wend., 587, remarked that it was of the nature of the statute of limitations, when applied to civil actions, “ to mature a wrong into a right by cutting off the remedyand again, when speaking of -actions brought by the true owner after the bar of the statute, “ his title remains, but he has lost his remedy.”

The question in this case was whether the long continued adverse possession of the defendant barred the plaintiff’s action, and it was held rightly that it did. The effect of an adverse possession as a means of acquiring title was not, however, involved in the case. The doctrine that a statute of limitations merely extinguishes the remedy, has been frequently applied to contract ■obligations. As thus applied the principle cannot be disputed. Time may bar an action upon the promise or contract, but it does not pay the debt. That remains as a moral obligation, at least, and is a good consideration for a new promise. Adverse posses-sion of tangible property implies not only the lapse of time but ■occupation and enjoyment by the possessor and the acquiescence -of the true owner in a hostile claim of title. The idea that the title to property can survive the loss of every remedy known to the law for reducing it to possession and enjoyment would seem to have but small support in logic or reason. Enactments which are appropriately termed statutes of repose, when applied to the adverse possession of land, have, as it seems to us, a broader and deeper effect than simply to destroy the remedy of the true owner for its recovery.

One of the earliest cases in this state upon the question is Jackson v. Dieffendorf, 3 John., 269, decided nearly a quarter of a century before the change made in the English statute. 21 Jac. 1 Oh. 16. In that case a party who could show no other title to land than an adverse- occupation for thirty-eight years was at the ■end of that period put out of possession by another, who had the paper title, under a judgment in ejectment obtained by default; and the party recovering the judgment, and in whose deed the premises were included, went into possession. The dispossessed party then brought another action of ejectment against the person who had turned him out, and who had a deed of the land, for the purpose of repossessing himself of what he had lost. The court held that he was entitled to recover upon the ground that the adverse possession was conclusive evidence of his title. The doctrine of that case on this point has never been disturbed, and the case itself has frequently been cited with approval in this court. Baldwin v. Brown, 16 N. Y., 364; Reed v. Farr, 35 id., 117. The case of Cahill v. Palmer, 45 N. Y., 478, was an action to recover money paid to the defendant for certain lands taken for Central Park. Both parties claimed to own the land for,which the money was paid by the city. A statute provided that when the money was paid to the wrong person, the real owner of the land might bring and maintain an action .to recover it from the party to whom paid. The plaintiff had the paper title to the land, and the defendant, to whom the money was paid, showed an adverse possession for more than twenty years prior to the time the land was taken by the city. This court held, that the money was properly paid to the defendant, and that the plaintiff could not recover.

Grover, J., referring to the point now under consideration, said: “ The counsel for the appellant insists that an adverse possession, although for the length of time required by statute to bar the owner, is available only as a defense to a suit brought by such owner for the recovery of the land. In this the counsel is in error. When the possession is actual, exclusive, open and notorious, under a claim of title adverse to any and all other for the-time prescribed by statute, such possession establishes title. To uphold it, a grant from the true owner to such party may be presumed.” In Reformed Church v. Schoolcraft, 65 N. Y., 134, it was held that adverse possession for the period prescribed by the statute to bar an action was sufficient proof of title upon which to maintain an action of ejectment against parties in possession without title. The policy upon which the statute of limitations was based, when applied to real property, was examined and the conclusion reached in that case that the real owner’s title is lost by acquiescence in adverse possession by another, and that the title lost is gained by the party in possession. In Barnes v. Light, 116 N. Y., 34; 26 N. Y. State Rep., 654, it was held that an action of ejectment, founded upon adverse possession alone, may be maintained by the party in whose favor the adverse possession has run, even against the true owner. This case was decided mainly upon the authority of Sherman v. Kane, 86 N. Y., 57; Carleton v. Darcy, 90 id., 566, and Mayor v. Carleton, 113 id., 284; 22 N. Y. State Rep., 625, in all of which it is held that title may be obtained by adverse possession alone. In Millard v. McMullin,. 68 N. Y., 345, it is held that such a title is sufficient to uphold the lien of an execution. A clear adverse possession for twenty years constitutes a title which a purchaser at a judicial sale may not refuse. Seymour v. DeLancey, 1 Hopk. Ch., 436 ; Mott v. Mott, 68 N. Y., 246; Shriver v. Shriver, 86 id., 575; O’Connor v. Huggins, 113 id., 511; 23 N. Y. State Rep., 275.

The supreme court of the United States has repeatedly asserted the recognized rule of the common law that adverse possession is one of the modes of acquiring title to property. In Campbell v. Holt, 115 U. S., 620, Mr. Justice Miller, delivering the opinion of the court, said: “ By the long and undisturbed possession of tangible property, real or personal, one may acquire a title to it, or ownership, superior in law to that of another, who may be able to prove an antecedent and, at one time, paramount title.

This superior or antecedent title has been lost by the loches of the person holding it in failing within a reasonable time to assert, it effectively; as by resuming the possession to which he was entitled, or asserting his right by suit in the proper court. What the primary owner has lost by his loches, the other party has gained by continued possession without question of his right. This is the foundation of the doctrine of prescription, a doctrine which in the English law is mainly applied to incorporeal hereditaments, but which in the Roman law, and the Codes founded on it, is applied to property of all kinds.” After pointing out the

\ fact that possession, was the earliest mode known to mankind for the appropriation of anything tangible to the use of one, and to the exclusion of all others, and that it was always a means of acquiring title, he adds: “ The English and American statutes of limitation have in many cases the same effect, and if there is any conflict of decisions on the subject, the weight of authority is in favor of the proposition that where one has had the peaceable, undisturbed, open possession of real or personal property, with an assertion of his ownership, for the period which, under the law, would bar an action for its recovery by the real owner, the former has acquired a good title, a title superior to that of the latter, whose neglect to avail himself of his legal rights has lost him his title. ' This doctrine has repeatedly been asserted in this court. Leffingwell v. Warren, 2 Black, 599; Croxall v. Shererd, 5 Wall, 268, 289; Dickerson v. Colgrove, 100 U. S., 578, 583; Bicknell v. Comstock, 113 id., 149, 152. It is the doctrine of the English courts, and has been often asserted in the highest courts of the states of the Union.”

The principle has also the sanction of two eminent authors on the law of limitations. Judge Cooley, in his recent work, referring to this question, says: “ When the period prescribed by statute has once run, so as to cut off the remedy which one might have had for the recovery of property in the possession of another, the title to the property irrespective of the original right is regarded in the law as vested in the possessor, who is entitled to the same protection in respect to it which the owner is entitled to in other cases.

“A subsequent repeal of the limitation law could not be given a retroactive effect, so as to disturb this title. It is vested as completely and perfectly, and is as safe from legislative interference as it would have been had it been perfected in the owner by grant, or by any species of assurance.” The learned author, admitting that there is controversy in regal’d to the point, has collected in a note the decisions of the highest courts in the several states sustaining the doctrine stated in the text. Cooley’s Con. Lim., 449,5th ed.

In the other treatise on this subject, which is of highest authority, it is said: “As a general doctrine it has too long been established to be now in the least degree controverted, that what the law deems a perfect possession, if continued without interruption during the whole period which is prescribed by the statute for the enforcement of the right of entry, is evidence of a fee. Independently of positive or statute law, the possession supposes an acquiescence in all persons claiming an adverse interest; and upon this acquiescence is founded the presumption of the existence of some substantial reason, though perhaps not known, for which the claim of an adverse interest was forborne. Hot only every legal presumption, but every consideration of public policy, requires that this evidence of right should be taken to be very strong, if not of conclusive force.” Angelí on Lim., ch. 31, p. 373. The same learned author seems to treat prescription and adverse possession, so far as this question is concerned, as practically the same thing. Id., ch. 1 and 2.

These authorities and others that might be cited show that title to an estate in land may be acquired by one and lost by another by means of adverse possession. This principle has become a rule of property that cannot now be disturbed without grave injury to titles. There is no serious claim that the plaintiff, can recover the share which she took direct from her father; and, as to the other two shares, the plaintiff’s remainders are limited upon her mother’s life estate, which the defendant has absorbed in its adverse possession and is not yet terminated, as under the principles above stated, she had nothing to convey and nothing passed to the plaintiff under the deed of October, 1885. Hence, the plaintiff’s rights are to be determined in this case in the same way as if the deed had not been executed at all. This point is, we think, decisive of the case, and it is not necessary to examine'the qnestions, so ably discussed, whether the conveyance offends against the champerty statutes; whether the defendant is entitled to the rights of a mortgagee in possession, or when, and under what circumstances, a defendant in ejectment can protect his possession by an outstanding title in another.

The judgment should be affirmed.

All concur, except Andrews, J., taking no part, and Gray, J., not voting.  