
    September, 1874.
    RICHARD HILTON, Plaintiff, v. CHRISTOPHER W. BENDER, MARIA BENDER and others, Defendants.
    
      Adverse possession underr invalid deed—Assessment deed—Tenant—may purchase what tide hostile to his landlord's — Go-tenants—one may purchase, enter und&r and hold hy title hostile to that of the other—Presumption—as to truth of recitals in deeds from long possession.
    
    It is not necessary that an adverse possession should commence under a valid deed.
    Possession under a tax deed, invalid by reason of want of authority to execute it, if continued for twenty years, ripens into "a perfect title.
    A tenant may protect his possession against his landlord by showing that the title of the latter has expired or been extinguished.-
    One tenant-in-common, who enters into possession of real estate under a title hostile to the claim of his co-tenant, is not precluded from setting up a title so acquired as against the latter.
    Whether an undisturbed possession under an assessment title for upward of a third of a century, furnishes presumptive evidence of the truth of the recitals contained in the deed, quere.
    
    This canse came before this court upon a case and exceptions, ordered to be heard here in the first instance.
    The action was brought for the purpose of recovering from Maria Bender, the interest (i. e., one undivided half) in the premises described in the complaint, which was devised to the plaintiff, Richard Hilton, by the will of James Hilton, his uncle. The defendant, Christopher W. Bender, was the husband of Maria. The other defendants were her tenants in the actual occupancy of , the premises.
    The evidence tended to show that James Hilton, the testator, died in December, 1836; that for a great number of years he had been in possession himself, or rented to tenants the premises described in the complaint; that at the time of his death the premises were occupied by John Hilton, to whom he had leased them a short time before his death. James Hilton died, leaving a last will and testament, by which he devised this property to his executors, as trustees, to apply the income thereof to the support of his son, James Hilton, diming his life, and, after his decease, to the support of Rachel Hilton, his wife, during her widowhood, and on her decease or remarriage he devised this property to this plaintiff, Richard Hilton, and to Robert Hilton, Jr., and Catharine, his wife, as tenants in common. The interest of Robert Hilton, Jr., and Catharine, his wife, passed, ten or twelve ye'ars before the commencement of this suit, to Maria Bender.
    Rachel died, not having remarried, about nine or ten years before this action was brought.
    The defense interposed by the defendant, Maria Bender, is, that' John Hilton, while in possession of these premises as tenant of James Hilton, the testator, and while acting, as the evidence tended to show, as his agent, in March, 1836, purchased this property at a city assessment sale. John Hilton, subsequent to James Hilton’s death, and on December 16, 1852, made a general assignment of all his “ lands, tenements and hereditaments,” not describing this property specifically, for the benefit of his creditors.
    The assignees conveyed these premises to William S. Paddock, November 6, 1858, and William S. Paddock, on the 29th day of December, 1858, conveyed them to Maria Bender.
    The plaintiff objected that the deed given at the assessment sale was inadmissible, unless proof was made that the proceedings, required by statute to authorize its execution, had been had. The court admitted it without such proof.
    
      The plaintiff requested the court to submit the whole case to the jury, and also asked that various specific questions should be so submitted.
    The court denied each of such requests, dismissed the complaint, and ordered that the exceptions be he.ard in the first instance at the General Term.
    
      Marcus T. Hun, for the plaintiff.
    
      Amasa J. Parker and William S. Paddock, for the defendants.
   Bockes, J.:

It may, perhaps, be questionable whether title to the premises was shown in plaintiff’s testator, James Hilton. No deed to bim was produced, nor was he in possession, claiming title, at the time of his decease. He was shown to have been in possession several years prior to his death, claiming to own the premises, and exercising acts of ownership over them. But he was out of possession at the time of his death; the premises then being occupied by John Hilton, who, however, claimed as his tenant, and had made substantial and valuable improvements on the lot. The admission of tenancy, by John, as proved, made no disclosure of its conditions, or of the duration of the tenancy.

But without determining this point, the evidence established, as I think, an adverse possession by Mrs. Bender and her predecessors in occupation, which barred the plaintiff’s claim. In March, 1836, John Hilton, from whom Mrs. Bender claimed title through mesne conveyances, obtained a deed of the premises, purporting to give him title for one thousand years, under an assessment sale. This was prior to the date of the will even, and a considerable period prior to the decease of the plaintiff’s testator. Following this to the time of the trial, a period of over thirty-five years, the premises were occupied by persons claiming to hold, and holding under that title. It appears that John Hilton, the purchaser on the assessment sale and grantee in that deed, which was duly acknowledged and was recorded in 1838, held under it until 1852, when he conveyed to Barent P. Staats and Stephen Paddock, Jr., who, in 1858, conveyed to William S. Paddock, and he conveyed to the defendant, Mrs. Bender. Here, then, was an adverse holding of over thirty-five years prior to the commencement of the action. Twenty years were sufficient to bar the right of entry under the true title. But it is said the assessment sale and deed were without the authority of law, and void. It was not necessary that the adverse possession in order to be effectual, should commence under a valid deed. It was held, in Finlay v. Cook that a comptroller’s deed, even though that officer had no authority to sell, was a sufficient foundation for an adverse possession. It is. there said: The deed was fair upon its face; it contained no evidence of a want of authority by the comptroller to execute it. As it purported to be executed under'an authority, it gave color of title to the grantee, although the pretended authority recited upon its face did not, in fact, exist; ” and, it is added, that possession and claim under such deed, by the grantee and those claiming under him, were presumed to have been in good faith, and therefore adverse to the title of the former owner, “ and if continued for the period of twenty.years ripened into a perfect title.” Now, it seems that John Hilton’s possession and claim of title under the assessment sale, were hostile to the title under which the plaintiff claims, from the time he received his deeds. His hostile attitude in regard to the title was notorious; certainly, his claim of title, and holding under this deed, were known to those interested to defeat it, from about the time of the testator’s death, as one witness states that when the will was read, he stepped forward and presented this deed; it was common talk in the familyand the premises continued thereafter to be held adversely to the time of the trial. But it is urged that John, being tenant, could not acquire hostile title against his landlord. The answer to this is. that the hostile title originated with the purchase on the assessment sale. It was not the buying in by the tenant of an existing outstanding title. The sale, if valid, originated a new title, which superseded the previous one, and on its consummation by deed, a hostile right sprung into existence. Such right, a tenant may acquire, and it may be interposed by him against the landlord’s claim. A tenant may protect his possession against his landlord, by showing that the title of the latter has expired or been extinguished. As was said in Jackson v. Rowland, “a tenant cannot dispute the title, of the landlord, so long as it remains as it was at the time the tenancy commenced; but he may show that the title under which he entered has expired or has been extinguished.”

Nor would it help the plaintiff’s case if he had established the fact (which I think he failed to do) that John obtained his title while agent of the testator in regard to the premises. Even if such title, and all benefits and advantages growing out of it, could have been claimed by the latter, and could have been obtained by him or by his devisees by proceedings in equity, no steps were ever taken having that object in view, and the property passed under conveyance, for aught that appears to the contrary, to bona fide holders. Tinder such circumstances, a bona fide purchaser for a valuable consideration, would take the property free from any claim of the testator and of all persons claiming under him.

It is further insisted that Mrs. Bender’s holding was that of a co-tenant with the plaintiff, and therefore that she could not acquire title as against the latter. But Mrs. Bender did not enter as co-tenant; she entered as purchaser under hostile title, of over twenty-five years’ standing, and asserted her right to possession thereunder, never claiming as co-tenant with the plaintiff, or acknowledging any right in him, or claim by him to the property.

Thus, it seems, that all the elements of an adverse holding existed in this case, with a perfect right on the part of the defendants to insist upon it as a defense. Here was an actual and uninterrupted possession, under claim and color of title, for a period of over thirty-five years. This was sufficient to bar the plaintiff’s right of entry, and must be held to afford a perfect answer to the action.

I am quite of the opinion, also, that the assessment deed was effectual as a muniment of title. As an ancient deed, it answered the requirements of a valid conveyance of the premises embraced in it. It was in due form, and purported to have been executed pursuant to lawful authority; and there had been an undisturbed possession under it for over a third of a century. So, of itself) it furnished presumptive evidence of the truth of its recitals. But this point need not he here determined. I am of the opinion-that the case was properly disposed of on the point above considered. Motion for new trial denied, and judgment ordered for the defendants, with costs.

Present—Miller, P. J., Bockes and Boardman, JJ.

Mew trial denied, and judgment ordered for the defendants,, with costs. 
      
      54 Barb., 9.
     
      
       18 John., 355; 7 Hill, 476 ; 7 Barb., 101; 33 id., 263.
     
      
      6 Wend., 666, 671.
     
      
      1 Greenl. E., §§ 20,21; 14 Mass., 257; 10 John.,475; 4 Wend., 543 ; 38 N.Y., 264; Cow. & Hill’s Notes, notes 311, 882.
     