
    Mary G. Staples and Others, Respondents, v. John Schnackenberg, Appellant, Impleaded with Gustav Herman and Others, Defendants.
    First Department,
    December 29, 1911.
    Heal property—adverse possession — adding separate possessions — presumption as to possession — termination of dispossession — evidence.
    Where a deed expressly excludes a particular parcel of land there is no privity of contract between the parties in regard to it, and the grantor’s possession thereof cannot be tacked on to the grantee’s possession for the purpose of establishing title by adverse possession in the grantee.
    A person who establishes the legal titlé to land is presumed to have been continuously in possession, and the occupation of the premises by others is presumed to have been in subordination to his legal title.
    Where a dispossession terminates within twenty years after its inception, possession is deemed to return to the true owner.
    One who without a paper title to land seeks to establish title by adverse possession against the holder of, the legal title should be held to strict proof.
    Evidence given by-a witness, who admits that her recollection is indistinct, that an enclosure of premises was made about 1868, is insufficient to establish that it was made on or prior to October 2, 1868.
    
      Appeal by the defendant, John Schnackenberg, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 8th day of March, 1911, upon the decision of the court rendered after a trial at the New York Trial Term before the court, a jury having been waived, in an action for ejectment.
    
      Jacob Brenner, for the appellant.
    
      Merle I. St. John, for the respondents.
   Miller, J.:

The plaintiffs are the heirs at law of James É. Lent, who obtained title on April 1, 1852, to premises which concededly include those in dispute. The defendant has no record or paper title, but claims title by adverse possession. A map was made and filed in the office of the registrar of deeds of Westchester county on November 1, 1852, by which it appeared that a certain part of the premises thus acquired by Lent, between what was then the Turnpike road on the north and Fourteenth street on the south was divided into lots. The property in dispute was the westerly lot, a triangular piece eighteen feet wide on the Turnpike road and seventy feet wide on Fourteenth street, called TT. Next east of that were two rectangular lots, styled 377 and 378, respectively, each sixty-four feet wide. Jane Munn, the defendants’ grantor, obtained title to lots 377 and 378 by a conveyance made by Edward Dalton and wife, which described said lots with reference to the said map. The westerly boundary was stated to be the lands of James E. Lent, and the dimensions were given, showing that they were rectangular pieces. On the 2d of October, 1888, Jane Munn conveyed lots 377 and 378 to the defendant and in her conveyance the lots were described with reference to the said map, distances were given showing them to be rectangular, and the westerly boundary was stated to be the lands of J ames E. Lent, thereby necessarily referring to the said lot TT in dispute, here. This action was begun August 11, 1908.

As the defendant’s deed expressly excluded the lot TT, there was no privity of contract between him and his grantor with, respect to it, and. his possession cannot be tacked onto hers to make up the necessary twenty years’ adverse possession. (Smith v. Reich, 80 Hun, 287; affd. on the opinion below, 151 N. Y. 642.) The defendant had not had possession for twenty years when the action was brought.

Even assuming that the defendant could succeed by showing that some one, who is not claiming any title, had maintained a continuous adverse possession for twenty years prior to the time when his possession began, the proof was not sufficient. The plaintiffs having established the legal title, are presumed to have been in possession, and the occupation by others is presumed to have been in subordination to their title. (Code Civ. Proc. § 368; Archibald v. N. Y. C. & H. R. R. R. Co., 157 N. Y. 574.) When a dispossession terminates, if within twenty years, possession is deemed to return to the true owner. (Bliss v. Johnson, 94 N. Y. 235.) The defendant claims that Jane Munn had obtained title by adverse possession pursuant to sections 371 and 372 of the Code of Civil Procedure, and asserts that he has shown that the premises were protected by a substantial inclosure and were usually cultivated or improved by the said Jane Munn for a period of twenty years under a claim of title exclusive of any other right.” To prove such adverse possession, he relies upon the testimony of two daughters of Mrs. Munn. One of them did not claim to be able to . remember back more than thirty-five or thirty-eight years, or, at the outside, back of 1872. The other one testified to a recollection of the purchase made by her mother some time in the sixties, and that there was nothing on the premises purchased at that time except bushes. Testifying with reference •to the said premises, not specifically with reference to said lot TT in dispute here, she said: “I couldn’t tell you when father built on it. My father put buildings on it, about 1868. Somewheres along there. He put a barn on the property; put rail fences around. To my recollection that barn and those fences remained there until my mother sold it.”

We think that such vague testimony is insufficient to overcome the legal title. The defendant was at least bound to show that the alleged adverse possession of Mrs. Munn began as early as October 2, 1868. One who, without even a paper title, seeks to overcome the legal title, should be held to strict proof. It is quite plain that the barn,, referred, to by the saiéL witness; was not built, on lot TT. A map, put. in evidence- by the defendant,, shows, buildings- on lots.- 377 and 378. It was-necessary to fix the exact time when the so-called “ inclosure ” of the-, premises in dispute- was made.. The- testimony of a witness, who- admits that her recollection is indistinct, that it was done about 18.68, is msufficient to prove, that it was done, on. or prior to October 2, 1868. It is, therefore, unnecessary to determine, whether the acts of Mrs-. Munn’s husband are to- be-deemed her: acts and whether, if so, they were sufficient to create a. presumption of. adverse holding, in the. face of the explicit description in the- deed to her and in her deed to the defendant.

The judgment.- should be affirmed, with costs.

, Ingraham, P. J., Lahghlin, 'Scott and Dowling, JJ., concurred..

Judgment affirmed, with costs.  