
    Paul W. Ledoux, Plaintiff, v. Herman Samuels, Defendant.
    Second Department,
    January 11, 1907.
    .Beal.property — title by adverse possession — bankruptcy — title of assignee in bankruptcy to lands not scheduled.
    Although a bankrupt'is not aware that the title of a four-inch strip of land still remains- in him and fails to include the same in bis schedules, his title nevertheless passes to the assignee in bankruptcy -where it remains until there has béen an alienation by the assignee or a title has been acquired against him by - adverse .possession.
    
      Entry and possession by a grantee under a deed given without right in the grantor Is entry under color of title and the grantee’s possession is adverse. Hence, when subsequent to the bankruptcy the bankrupt and his predecessors in title have entered into possession under a deed including the said four-inch strip, the possession is adverse to the assignee in bankruptcy and when maintained for twenty years.the bankrupt’s title to the strip becomes marketable.
    Submission of a Controversy upon an agreed statement of facts pursuant to section 1279 of the Code of Civil Procedure.
    
      George F. Alexander, for the plaintiff.
    
      Charles Reinhardt, for the defendant.
   Hooker, J.:

This is a submitted controversy, and involves the title to a strip of land four inches wide and one hundred feet long-, on which is located, the westerly one-lialf of a party wall. By deed recorded May 9," 1871, the plaintiff, Paul W. Ledoux, became seized of the entire block of land bounded by Margaretta street, Éldert street, Bushwick avenue and Broadway, in the borough of Brooklyn. In the same year he built the'party wall ref erred to, and prior to-September, 1875, he had disposed of all of the block of land bounded by the four streets mentioned, except the strip four inches. wide on Eldert street, one hundred feet east from Broadway and running back one hundred feet. On the 20th of September, 1875, the plaintiff, Paul W. Ledoux,, was adjudged a bankrupt in proceedings in voluntary bankruptcy, and on. March 21, 1876, was discharged from his debts. His petition and schedules in the bankruptcy proceedings, however, failed to show his ownership in the four-inch strip of land. An assignee of his estate was appointed and qualified in the bankruptcy proceeding. The plaintiff was not aware, at the time of the bankruptcy, of the fact that the four-inch strip had not been disposed of and that the legal title was vested in him, and did not learn of that fact until 1879. In that year one Bernard Dewitt acquired title to the'premises adjoining the strip, and by deed dated June 27, 1879, and recorded on August 4, 1.879, conveyed to this plaintiff the land he had acquired, the description including that land and the four-inch strip. In 1881 the plaintiff conveyed to Mary E. Thompson the land described in his deed from Dewitt, also including in the description the four-inch strip. Sometime thereafter his grantee,, Mary E. Thompson, reconveyed to him, the plaintiff, atid thereafter he conveyed á plot, including this four-inch strip, to one Miller, who later, conveyed to the wife of the plaintiff, and she, by deed dated November 18, 1891, and recorded September 22, 1904, deeded to the plaintiff.

By agreement dated January 7, 1905, plaintiff agreed tó sell and convey to the defendant Herman Samuels the tract of land bounded north by Halsey street, south by Eldert street, west.by Broadway and on the east by the east line of the four-inch strip, and the controversy is whether or not the plaintiff is seized of marketable title entitling the plaintiff to a decree for specific performance of that contract.

It must be evident that upon the qualification of the plaintiff’s assignee in bankruptcy the assignee took legal title to this four-inch strip in trust for the benefit of creditors,.and this even though the schedules failed to disclose the ownership of the plaintiff in the strip, and in him the title remained and was bound to remain until there had been an alienation by him or until another title had sprung up by virtue of adverse possession. The plaintiff toóle title from Dewitt in 1879 in a deed which included this four-inch strip in the description, Under the provisions of section 369 of the Code of Civil Procedure the plaintiff’s claim in 1879, being founded upon a written instrument, was such that he was then deemed to have been holding the land adversely. ■ Entry and possession under a deed, without right in the grantor, is entry under color of title, and the possession is adverse. (Sands v. Hughes, 53 N. Y. 287.) The plaintiff, as grantee under deed to him of November; 1891, and his predecessors in title have, therefore, occupied the land in question adversely for upwards of twenty years and a title by adverse possession has arisen, which is good. Title by adverse possession is equally strong as one obtained by grant.” (Sherman v. Kane, 86 N. Y. 57, 65.)

The plaintiff" should have judgment, with costs.

Hiusohbbeu, P. J., .Jenks, GrAYNOB and Miller, JJ., concurred..

Judgment for plaintiff on submission of controversy, with costs.  