
    Mary N. Townshend, App’lt, v. Ellen L. Thomson et al., Resp’ts.
    
      (New York Superior Court, General Term,
    
    
      Filed May 2, 1892.)
    
    1. Ejectment—Title—Assignee in bankruptcy—Foreclosure.
    In an action of ejectment it appeared that at the time of a foreclosure under which defendants claimed title, the owner was a bankrupt and that neither the bankrupt nor his assignee were made parties; that subsequently an action was brought by the administrator of the mortgagee, who was the purchaser, against the wife of the bankrupt and his assignee individually, to foreclose said mortgage against them and a, sale had. Held, that the title of the assignee was not divested thereby, as it was not brought against him nor did he appear therein in his representative capacity.
    A Same—Prior sale.
    Plaintiff claimed under a.deed from the assignee given in 1869. It appeared that he had given a prior deed in 1846 to one who presumably conveyed to said mortgagee. Held, that he had thereby divested himself of the title and had none left to convey in 1869.
    8. Same—Adverse possession.
    Plaintiff repaired the curb and gutter in front of the premises and leased them to a tenant who occupied for four years and then retired peaceably, disclaiming any right to hold as against these defendants. Meld, that this did not constitute adverse possession on plaintiff’s part.
    4. Same.
    Defendants, who are subsequent grantees by mesne conveyances from said mortgagee, are subrogated to his rights as mortgagee in possession, so> that an action of ejectment could not be maintained against them, and plaintiff’s remedy, if any, is in equity.
    Appeal from judgment entered in favor of the defendants upon a dismissal of the complaint at the trial.
    
      John Townshend, for app’lt; Foster & Thomson, for resp’ts.
   Freedman, J.

This is an appeal by the plaintiff from a judgment entered upon the dismissal of the complaint at the trial.

The action is brought by the plaintiff upon the claim that on June 1, 1887, she was seized of an estate in fee and was lawfully in possession of the premises in suit, consisting of a lot on the southwest corner of One Hundred and Seventeenth street and Eighth avenue in the city of ¡New York, and that while plaintiff' was in such lawful possession on that day the defendants unlawfully entered upon the premises and ejected the plaintiff therefrom,, and have ever since withheld possession from the plaintiff, wherefore plaintiff demands judgment that she recover possession, etc.

The answer admits that the defendants at the time alleged were and still are in possession, and that they withheld and do withhold possession from plaintiff, and alleges that the defendants have' been and are lawfully in possession, and denies the other allegations of the complaint.

Upon the trial before a judge of this court and a jury the substantial facts proved were as follows:

The premises in question with other property were owned in 1885 by one Edward Price. His title is admitted by both parties, to have been good. He became seized of the premises in 1827.
In 1835 Edward Price conveyed the premises by deed to John Scudder, taking from Scudder a purchase money mortgage thereon.
In 1838 John Scudder conveyed to Ebenezer L. Williams.
In 1843 Ebenezer L. Williams, while the owner of the premises, was adjudicated a bankrupt upon his own petition under the act of 1841, and .William C. H. Waddell was duly appointed his assignee.
In 1845 a bill was filed by Edward Price to foreclose the purchase money mortgage made by Scudder, and in 1846 a decree of foreclosure and sale was entered, the premises sold and conveyed by deed of the master in chancery to Edward Price. But neither Williams nor Waddell were made parties to the foreclosure.
In 1855 Edward Price died intestate, leaving him surviving as his only children and heirs-at-law Artemas M. Price, Edward H. Price, James C. Price, Andrew J. Price, Julia Ann Coulter and Sarah M. Coddington.

In February, 1858, Artemas M. Price and Caroline, bis wife, filed a bill against the other children and heirs-at-law of Edward Price for a partition of the premises in question with others. Decree was entered and the premises sold, but no conveyance was made.

In December, 1858, for the purpose, as may be assumed, of clearing the record title and foreclosing the rights of Williams assignee and the dower rights of Williams’ wife, a bill was filed by William Coulter, as administrator of Edward Price, against Rhoda Williams and William C. H. Waddell, alleging the execucution of the mortgage, that Waddell had become seized of the interest of Scudder in the premises, the previous foreclosure suit of Price against Scudder, and asking for a decree of foreclosure and sale. Waddell appeared in the action, and on the consent in writing of his attorney a decree of foreclosure and sale was entered, and the premises were sold thereunder and bought by Julia Ann Coulter, and conveyed to her by the referee by deed dated January 28, 1859. But this foreclosure and sale were not effectual for the purpose of divesting the title of Waddell as assignee of Williams, if any was left in him, because the suit had proceeded against him individually, and not in his representative character as assignee, and he had not appeared therein in his representative character. This has been decided in Landon v. Townshend, 112 N. Y., 92; 20 St. Rep., 223.

Julia Ann Coulter, by various conveyances, acquired all the interest of all the other heirs at law of Edward Price, and thereafter, viz., in April, 1863, she and her husband conveyed the premises in question to Timothy Donovan; in May, 1863, Donovan conveyed to Adams; in 1864, Adams conveyed to Whitbeck; in 1867, Whitbeck conveyed to Andrew ; in 1868, Andrew and wife conveyed to William Thomson, by deed dated March 9, 1868.

William Thomson died seized of the premises in question January 18, 1872, leaving him surviving his widow, Ellen L. Thomson, and John W. Thomson, William A. Thomson and Ernest A. Thomson, his only children, who are defendants in this action and who, upon the death of William Thomson, became and still are seized of all the right, title and interest in the premises which the said William Thomson had in his lifetime.

William Thomson paid all the taxes and assessments imposed upon the premises from the time of his purchase until his death, and his executors and the defendants have paid all taxes since that time.

When the premises were sold and conveyed to Edward Price in 1846, under the decree of foreclosure and sale in Price v. Scudder. Price at once took possession under the master’s deed, and maintained his possession continuously down to his death in 1855, and his heirs and their grantees have continued in possession from that time down to the present, unless the proof offered by the plaintiff established the contrary.

The burden was upon the plaintiff to prove the allegations of her complaint, and she can recover only on the strength of her own title or of her own right to immediate possession.

The title claimed by the plaintiff rests, 1st, upon an instrument in the form a conveyance by William 0. H. Waddell, as assignee of Williams, to George Law, executed March 1, 1869, and 2d, upon an instrument in the form of a quit claim deed, executed by Law to the plaintiff in this action January 10, 1873.

Of these two instruments that executed by Law was, under the evidence in the case, absolutely void under the statute as against the defendants because given while the property was in the possession of a person claiming under a title adverse to that of the grantor.

Moreover Waddell, as assignee, had no title or estate left in 1869 which he could convey, and no order of the court authorizing or directing him to convey could invest him with a title or an estate if he had none. He had divested himself of all title and estate he ever had twenty-three years before the attempted conveyance to Law. On February 8, 1845, he filed a report as assignee in which he reported that certain assets of Williams, among which the premises in and some adjoining erty which may be styled the Landon property were enumerated, were “ in his opinion of uncertain value, and ought to be disposed of at once without incurring further expense or delay respecting them.” In due course of proceedings the premises in suit, including the Landon property, were thereafter sold by him as assignee at auction, March 23,1846, for a small sum, and in his account of the assets and sales of property of Williams, which is in the custody of plaintiff’s attorney, the assignee charges himself with the amount as received on the sale of this property. There is a very great probability that the person who purchased at this sale subsequently conveyed his interest to Edward Price, who was then in possession of the premises under the sale on foreclosure in Price v. Scudder, but, at all events, Waddell, as .assignee, was absolutely divested of all interest in or control of the property and absolutely divested of the right to sell the same a second time. This being so, it is not necessary to determine whether the second sale in 1869 was or was not produced by fraud practiced upon the court.

A further consideration is that the only interest Waddell ever had in the premises was as the assignee of Williams in bankruptcy, and that, independently of the sale of 1846, that interest, under the authorities cited by respondents’ counsel, before the time of the attempted sale in 1869, may be deemed to have reverted to the bankrupt or his heirs, the purposes for which the assignment had been created having expired, the bankrupt having been duly discharged in 1843 and no debts having been proved against his estate prior to 1869. The alleged debt advanced by Yard, the receiver, in 1869 was barred by the statute of limitations, and, being so barred, the assignee could not for his own purposes create a liability of the estate where none existed.

The proceedings in the superior court and in the United States district court brought by plaintiff to bolster up the alleged title which came through Waddell, as assignee, do not bind the defendants in this action, because they were not made parties to the proceedings.

It having been sufficiently shown that the plaintiff could not at the trial succeed upon the strength of her record title, it remains to be seen whether she established a right to possession superior to that of the defendants.

It was shown that in 1875 the plaintiff caused a board fence to be built around the premises; but it was also shown that the fence disappeared about one year thereafter. The effect of the building of this fence was fully considered by the court of appeals in Landon v. Townshend, 41 St. Rep., 419, and the decision was adverse to the plaintiff now here.

It was further shown that in 1878 the plaintiff repaired the curb and gutter stones in front of the premises. As this involved not even an entry, it is not evidence of adverse possession.

And finally it is claimed that in 1883 the plaintiff leased the whole plot, consisting of the premises in sure and the Landon property, to one Wieck, who occupied the lot in suit for about four years. The lease was never recorded, and it was not shown that the defendants ever had any notice of it, but it was shown by one of plaintiff’s own witnesses that Wieck’s retirement from the possession of the premises was peaceable, and that he disclaimed any right to occupy the premises as against the defendants.

Upon the whole case the plaintiff wholly failed to establish title in herself by adverse possession, or any right to possession superior to that of the defendants.

There is still another aspect of the case. The defendants are in, possession, and have at least the rights of mortgagees in possession. Upon the sale under the first foreclosure of Price v. Scudder, the premises were bought by Edward Price, who immediately entered into possession. Though the foreclosure was defective, the mortgage was good, and Price became at least a mortgagee in possession. He was expressly authorized by the terms of the mortgage to take possession on default, and the presumption is warranted that he went into possession with the consent of the mortgagor. That he continued in possession until June 26, 1855, the date of his death, is admitted in the brief of the attorney for the appellant. The defendants, claiming under Edward Price by mesne conveyances, became subrogated to the rights of Price as mortgagee in possession. The master’s deed on foreclosure passed to the purchaser the mortgagee’s right to the debt, and the mortgage security, and the defendants are entitled to all the rights of Edward Price in the premises as well by virtue of his possession as mortgagee as by viitne of the conveyance from the master. For these reasons ejectment will not lie against the defendants. The remedy of the plaintiff was in equity.

The exceptions taken by the plaintiff in the course of the trial require no specific discussion, because they do not affect the final result.

In every aspect, therefore, that can be taken of the case as made by the plaintiff, the complaint was properly dismissed.

The judgment appealed from should be affirmed, with costs.

Sedgwick, Ch. J., and McAdam, J., concur.  