
    HARRIET BEAL, Appellant, v. JOHN C. MILLER, Respondent.
    
      Tenants in common—Menge/rt—Election.
    
    Ejectment, to- recover the equal, undivided one-half of certain real estate. May 1st, 1816, Vedder' conveyed a piece of land in Amsterdam, including the premises in question, to G-. W. Beal and Z. Cook, who executed to him a mortgage on the same premises, which he subsequently, and on the 10th of May, 1816, assigned to G-. W. Beal, Z. Cook and Sarah Beal, the mother of Q-. W. Beal and mother-in-law of Cook. Cook took possession of the premises. September 15th, 1827, said Cook and wife, with the knowledge of Q-. W. Beal, conveyed to Sarah Beal a portion of said land, including the premises in question, in consideration of $1,300; by deed, which was recorded September 28th, 1827. Sarah Beal died in January, 1828, leaving a last will and testament, duly executed, by which she devised to her son, W. H. Beal, “ a piece of land in the town of Amsterdam aforesaid, called the ‘wheat lot,’lately in possession of Zebulon Cook, and contains about six acres,” being the premises in question, and by a codicil thereto, she revoked this devise to her son, and gave the same estate, theretofore devised to him, to his daughter, Harriet Beal, the plaintiff herein. Harriet Beal, on May 12th, 1859, conveyed one undivided half part of the wheat lot to Marcellis and Winegar, who subsequently conveyed the same to the defendant. On the 28th of August, 1835, G-. W. Beal conveyed the wheat lot to David B. Corey, by quitclaim deed, which was duly recorded. David B. Corey’s title was subsequently acquired by the defendant. Held, (1.) That, by the assignment of the mortgage, the assignees thereof became tenants in common, each being entitled to the undivided one-third part of the same; that, as Z. Cook and G-.W. Beal owned the equity of redemption, two-thirds of the mortgage immediately merged in the fee, and only the one-third owned by Sarah Beal remained effectual. (2.) That, by the conveyance of Cook to Sarah Beal, she acquired title to the undivided-one-half part of the wheat lot; that one-half of her interest in the mortgage became merged, and she had a lien on the other half of the lot, for one-sixth of the amount of the mortgage only. (3.) That, by her will, Harriet Beal, the plaintiff, took only such title as the testatrix had; that, if she acquired any interest in the mortgage, the statute of limitations had run against it. (4.) That the plaintiff had no title to any portion of the lot.
    Sarah Beal, by her will, bequeathed to G-. W. Beal a writing desk, worth twenty-five dollars, which he accepted. Held, that this was not a case for the application of the doctrine of election, and that G-. W. Beal was not required to give up his interest in the wheat lot, as it did not appear that it was the intention of the testatrix that he should do so, and that, even if it was, it would only give the plaintiff a right to proceed against him in equity, and would not affect a liona fide purchaser of the property, without notice of the latent equity.
    Appeal from a judgment in favor of the defendant, entered upon the report of a referee.
    This action was brought to recover the one equal, undivided half part of a lot of land, situated in the village of Amsterdam, in the county of Montgomery. The case was tried before a referee. It appeared, upon the trial, that on the 1st day of May, 1816, one Harmanus Tedder was the owner of a lot of land, situated in the town above named, containing about thirty-four acres, of which the premises in controversy were a part, which he conveyed, by warranty deed, to George W. Beal and Zebulon Cook, and, on the same day, said Cook and Beal executed to said Tedder a mortgage on the premises, to secure the payment of the sum of $3,500. On the 10th of May, 1816, said Tedder, by an instrument indorsed upon said mortgage, in consideration of the sum above named, assigned the said mortgage deed, and granted and sold his interest in the premises described therein, to George W. Beal, Zebulon Cook and Sarah Beal. Cook took possession soon afterward, but the extent and duration of his possession are not shown. On the 15th day of September, 1827, said Cook and his wife, with the knowledge of George W. Beal, conveyed a portion of the premises described in the deed from Tedder, which included the premises in question, in consideration of $1,300, to Sarah . Beal, which deed was duly recorded on the 28th of September, 1827. Sarah Beal was the mother of George W. Beal, and mother-in-law of Cook, and died in January, 1828, having, prior to her decease, duly made her last will and testament and a codicil, which were duly proved after her decease ; that a portion of the premises, included in the Cook deed to her, was a wheat lot of six acres, which six acres or wheat lot were given or devised by the said Sarah Beal, by her said will and. the codicil thereto, in the words following: “ I give and devise to my' son, William Henry Beal, a piece of land in the town of Amsterdam aforesaid, near the village of Amsterdam, called the ‘ wheat lot ’ lately in the possession of Zebulon Cook, and contains about six acres, to have and to hold the same to him, the said William, his heirs and assigns, forever.” And the said Sarah, by a codicil, annulled and revoked the said devise to her said son William, giving and devising, by the said codicil, the same estate and interest, which would have been to her said son William by the will, to his daughter Harriet Beal, the plaintiff in this action. At the time the will and codicil were admitted to probate, the plaintiff in this action was an infant, aged seven years, then living with William H. Beal, her father, who resided at Schenectady, about fifteen miles from Amsterdam, and continued to reside with her father until his death, in 1871. On the 12th day of May, 1859, said plaintiff sold and conveyed, by deed, duly executed and delivered, to Jeremiah T. Marcellis and Reuben E. Winegar, one undivided one-half part or portion of the said premises, the wheat lot. The said deed was recorded in the clerk’s office of Montgomery county, on the 14th day of May, 1859, and the said Marcellis and Winegar in the month of June, 1859, aforesaid, went into the possession of the said premises under the deed from plaintiff. There was some evidence, tending to show that this plaintiff exercised acts of ownership until the deed was executed, in 1859, to Marcellis and Winegar, and that the grantees in the deed, or one of them, remained in possession until they transferred the premises, and the defendant acquired title to the same. There was a stone wall on three sides of^the lot, and the river on the other side, soon after the deed from Tedder, but the wall along the highway, as early as 1830, was down, so as to offer no protection, and from 1830 to 1865, there was no substantial inclosure. By the will of Sarah Beal, she bequeathed her portable writing desk, which was worth twenty-five dollars, to George W. Beal, which he accepted and retained, with full knowledge of the provisions of the will. On the 28th of August, 1835, George W. Beal executed a quitclaim deed of the wheat lot, with other lands, to David B. Corey, which was duly recorded, and afterward, on the 18th of January, 1836, said Beal and wife executed another quitclaim deed to the plaintiff, which was also recorded. Corey and wife conveyed to the blew York Central Railroad Company, and the title, through several intermediate conveyances, was transferred to the defendant. The referee found that the plaintiff had no title by documentary proof or adverse possession, and reported in favor of the defendant. The plaintiff duly excepted to the decision and findings of the referee. On the trial, the plaintiff objected to the declarations of William H. Beal, made at the time of the delivery of the deed from her to Marcellis and Winegar, which objection was overruled, and the plaintiff duly excepted.
    
      C. W. White, for the appellant.
    
      8. W. Jackson, for the respondent.
   Miller, P. J.:

The question presented upon this appeal is strictly one of legal title, and the plaintiff is bound to establish such title before she can maintain this action. The common source of title of both parties is the deed of Harmanus Tedder, in May, 1816, conveying certain premises to George W. Beal and Zebulon Cook, each of whom thus became seized in fee of an equal, undivided one-half thereof. The plaintiff claims title, First: By virtue of an instrument indorsed upon the mortgage, executed by Beal and Cook to Harmanus Tedder, dated May 1st, 1816, upon the premises conveyed on the same day by said Tedder to said Beal and Cook, to secure the .payment- of $3,500, which instrument grants and assigns the said mortgage to G-eorge W. Beal, Zebulon Cook, and to Sarah Beal, the mother of the plaintiff, from whom she claims to derive title to the premises, in the indenture of mortgage particularly described.

Second: TJnder a deed from Zebulon Cook and wife, dated September 15th, 1827, of a portion of the lot, including the premises in question, in consideration of. $1,500, to the plaintiff’s mother,1 Sarah Beal, which was duly recorded on the 28th of September, 1827. In this connection it is also claimed, that Sarah Beal was a purchaser for a valuable consideration, and without notice of the deed from Tedder to Cook and George W. Beal, and her own deed from Cook and wife, being on record before the deed of May 1st, 1816, had the effect to vest her with the legal title to two-thirds of the premises, under the recording act.

I. As to the instrument or assignment upon the back of the' mortgage, which constitutes the first muniment of title, I think that the assignees or grantees became tenants in common of the mortgage, each being entitled- to the one undivided one-third part of the same. As Zebulon Cook and George W. Beal, two of the assignees or grantees, were the owners of the equity of redemption, two-thirds of the mortgage became immediately merged in the fee, and it only remained effectual, and a lien, for the remaining one-third, which was transferred, to and owned by Sarah Beal. This one-third could only be enforced against Cook and George W. Beal, and, when Cook conveyed to Sarah Beal one-half of the one-third she previously held, became merged in the interest so com veyed, leaving only one-sixth of the amount which remained, a lien upon the undivided half of the land which belonged to George W. Beal. The deed from Cook to Sarah Beal, conveyed the title to the one undivided half of the premises, and she became the owner of the same in fee, as to that, with a claim for the one-sixth, as mortgagee, upon the remaining one-half. Sarah Beal’s devise of the wheat lot to the plaintiff, only gave her such title as was vested in Sarah at the time of her death, and no more.' If the plaintiff became entitled to the interest of Sarah Beal in the mortgage, by the devise to her, it was, I think, only such an interest as could be enforced by a foreclosure of the mortgage, when the question could be determined as to the extent of that interest or its validity, after it had remained unpaid for a period of time, sufficient to raise a presumption of payment. The mortgage itself, or so much of the same as wTas vested in Sarah Beal, did not constitute evidence of title which would authorize the mortgagee, or his assigns or representatives, to maintain an action of ejectment for the recovery of the possession of the mortgaged premises or any part thereof. There are other objections to upholding the title of the plaintiff upon any such basis. It had ceased to be a lien by the operation of the statute of limitations, as more than twenty years had expired •since a right of action had accrued on the same. And, as to David P. Corey and his assigns, it was invalid under the recording act, for the reason that Corey was a bona fide purchaser for value from George W. Beal, and his deed was duly recorded, while the mortgage was never put on record.

II. The deed from Zebulon Cook and wife, to Sarah Beal, conveyed an undivided half of the premises, which he had acquired by virtue of the conveyance from Yedder, and there is no evidence that Cook, at this time, had any other or different title from that which he had thus acquired. There is no evidence that he had ever acquired the title of George W. Beal, or that he ever held possession of the premises in opposition to Beal’s title. Cook was a tenant in common with Beal, and whatever possession he had, must be presumed to have been for the benefit of himself and his co-tenant. Every legal presumption is in favor of a possession in subordination to the title of the true owner, and, unless when possession is taken by one tenant in common, a clear and positive disclaimer and disavowal of the title of his co-tenant, and an assertion of an adverse right is made and brought to the knowledge of the co-tenant, there is no foundation laid for the operation of the statute of limitations. Such, clearly, was not the fact in the case at bar, and, by virtue of the deed in question, Sarah Beal only acquired a title to an equal, undivided one-half of the premises in dispute.

The recording of the deed from Cook to Sarah Beal, cannot, I think, affect the rights acquired by George W. Beal under the deed from Vedder to him, because, 1st. The deed from Cook only conveyed his interest in the premises, which was an undivided half, and in no way affected the remaining half which belonged to George W. Beal. Sarah Beal, therefore, was not a subsequent purchaser for a valuable consideration, within the provisions of the Revised Statutes, so far as George W. Beal’s interest was concerned. 2d. As the deed to George W. Beal was executed in 1816, the provisions of the Revised Statutes could not affect the recording of it. At the time when the deed was executed, the law did not require that it should be recorded, and hence the rule invoked has no application. It is further insisted that the defendant is estopped from claiming that Sarah Beal was not the owner of the whole of the premises, for the reason that the deed from Cook and wife to her, recites a deed from Harmanus Tedder and wife to Zehulon Cook and Sarah Beal. The recital in the deed referred to, is a statement after the description of the premises, as follows: “As the same is described in a deed executed to both parties by Harmanus Tedder and his wife.” This description may very properly he interpreted as referring to the instrument indorsed on the mortgage, as no other deed is introduced in evidence, and which included George W. Beal as well as the other two persons therein named. Assuming, however, that it did not, it can scarcely be claimed, I think, that the defendant is a party or privy, claiming solely under the deed from Harriet Beal to Marcellis and Winegar, of One-half of the premises, executed in 1859. It is true he claims for one-half under the last-mentioned deed, but he also claims the other half, under the conveyance by George W. Beal and wife, to David T. Corey, in 1835, and Corey’s subsequent conveyance of the premises to the Central Railroad Company, and the intermediate conveyances, by virtue of which he acquired title.

If a privy or party, he could only be bound to the' extent of his claim, and has a perfect right to maintain his title under another and a different source, to the one-half not embraced within the conveyance from Harriet Beal. It may also he remarked, that, inasmuch as the title, derived by the conveyance of Tedder to Cook and George W. Beal, dates anterior to the conveyance from Cook to Sarah Beal, the latter must he considered as a grant, subject to all rights which had previously been conveyed by Tedder, and cannot, in any way, affect the interest of George W. Beal, or the parties claiming under him. The plaintiff ’s counsel also claims that Georgé W. Beal, by his acceptance of a legacy bequeathed to him by Sarah Beal, lost all title which he had acquired under the deed of Tedder to him and Cook, in 1816, to the undivided half of the premises. The legacy bequeathed, was a writing desk, of trifling value, and it is said that the acceptance of this bequest, Avas a renunciation of any title or claim which George W. Beal had to the wheat lot, which, by the same will, was devised to the plaintiff. The plaintiff seeks to apply a familiar rule in equity, called the doctrine of election, by which, one, who accepts a benefit under a deed or will, must adopt the whole contents of the instrument, conforming to all its provisions, and renouncing all rights inconsistent with it. And, if a testator has affected to dispose of property, not his own, and has given a benefit to the person to whom that property belongs, the legatee or devisee, accepting the benefit so given to him, must make good the testator’s attempted disposition. If he insists upon retaining his own property, which the testator has attempted to give to another, equity will appropriate the gift, for the purpose of making satisfaction out of it, to the persons whom he has disappointed by the assertion of those rights. It must be clear, beyond any reasonable doubt, that he has intentionally assumed to dispose of the property of the beneficiary, who is required, on that account, to give up his own gift. There is considerable difficulty in the application of this rule to the case at bar. It is by no means clear that the testatrix intended, by the devise to the plaintiff, to dispose of more than her interest in the property. Every presumption is in an opposite direction, with no facts or surrounding circumstances .to rebut such presumption. This rule is held not to be applicable, where the testator has some present interest in the property disposed of by him, although it is not entirely his own. In such a case, unless the intention to dispose of the whole estate, including the interest of third persons, is clearly manifest, he will be presumed to have intended to dispose only of that interest in the property, which he might lawfully dispose of. This principle is applicable to cases where a legacy is given to the wife, and not expressed to be in lieu of dower, and it is held that she is not put to her election. It is utterly improbable, and by no means inferable, upon any rational theory, that the testatrix intended to appropriate the property, and an entire one-half interest of her;son, George W. Beal, and bequeath, in return for the same, the inadequate and small legacy named in the will. This is also a case, I think, where the expressions employed, are of such a character as will admit of being restricted to an interest belonging to, and disposable by, the testatrix, and, therefore, will not be held to apply to property over which she had no disposing power, wdthin the principle decided in Havens v. Sackett (supra).

Even if the doctrine contended for, is applicable in cases where the intention is plain and clear, it is only a rule in equity, and, as the law abhors forfeitures, should not be held to apply in an action at law against an entire stranger and a bona fide purchaser for a valuable consideration.

While courts of equity may carry out and enforce the intention of partie s, and do exact justice between them, and may compel one who has accepted a bequest or devise under a will, to renounce all benefits inconsistent with other provisions, in which other parties have an interest, I am unable to discover how a court of law can thus defeat a title. It is held that a devise by one who is not a legal owner, cannot transfer the legal title to the property, nor can it operate by estoppel, against the legal owner, who is also a beneficiary under the will. The current of authority upon the question, which has been much discussed, whether the principle, governing cases of election under a will, is forfeiture or compensation, especially those of a recent date, is strongly and decidedly in favor of the principle of compensation; and it is said by Mr. Justice Stoby, that the fair result of the modern .leading decisions, is, that in such a case, there is no absolute forfeiture. The right of the plaintiff, therefore, to apply the rale in question if the facts authorized it, is only capable of being enforced in an equitable action against George W. Beal, and his grantees who have notice of such equity. Corey, being a bona fide purchaser from George W. Beal,without any notice that the plaintiff had any latent equity, has a superior equity, I am inclined to think, to that of the plaintiff. The role in equity is, that, as between two parties having equal equities, the prior equity must prevail; but if the party having the subsequent equity, clothes himself with the legal title before he has notice of the prior equity, such legal title must prevail. It is, therefore, difficult to see how, even in an equitable action, the equitable right of the plaintiff, if any exists, could be enforced against Corey and his grantees.

The counsel for the plaintiff relies upon the case of Padbury v. Clark, as an authority decisive of the question discussed. The case cited, is by no means analogous to the one at bar. The former was a bill in equity, and charged that one of the devisees had elected, and was bound to elect under the will. The testator was entitled, in that case, to a fee in an undivided moiety in two houses, and to another undivided moiety in a leasehold house, and, by his will, devised all my freehold messuage or tenements,” etc., referring to the two houses only, thus assuming that he was the owner of the whole, and not the one-half the houses; and, in another clause, devised all that my moiety or half part of the whole,” etc., in the leasehold messuage,” etc., to the defendant.

It was held that the words, first used, were a gift of the entirety, and raised a question of election, as against the party entitled to the other moiety who took' beneficially under the will; and that this construction was corroborated by the fact of the testator’s having used apt words, in disposing of his interest in the leasehold. The devisee would thus have received some compensation in return for the estate, which would have been surrendered by an election to take under the will. The Lord Chancellor decided that the defendant had not elected, but, as the rents were received by the trustee of the defendant or her father, for her usé, and she had elected to take against the will, she was bound to make good to the disappointed party, the value of the property intended for her. The decision in the case last cited, was based upon the principle of compensation, and a note at the close of the case, lays down the rule, that the doctrine of election proceeds upon the ground of compensation and not of forfeiture, citing numerous authorities to sustain this principle. There is not a reported case in the books, which I have discovered, that maintains the doctrine, that the principle contended for, can be invoked in an action against an entire stranger, to defeat a legal title acquired from one who held a valid conveyance of the fee, and had parted with the same to a purchaser. The plaintiff has shown no such prior possession, as against the defendant, which entitles her to maintain this action, and, as she was only entitled to an equal undivided half of the property, which, on the 12th day of May, 1859, she conveyed to Marcellis and Winegar, has proved no title whatever to the premises in question. As the plaintiff proved no legal title, and must recover upon the strength of her own title, and not on the defects in the title of her adversary, it is not necessary to examine and consider the character of the defendant’s title. I think there was no error in the admission of evidence, and even if the declarations of William Beal were objectionable, that they could not affect the result of the case. The decision of the referee was right, and the judgment entered thereon must be affirmed, with costs.

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

Judgment affirmed, with costs. 
      
       2 R. S., 312, § 57.
     
      
       1 R. L., 372, § 2.
     
      
       1 R. S., 756, § 1.
     
      
       Varick v. Briggs, 6 Paige, 323 ; 22 Wend., 543.
     
      
       1 R. L. of 1813, 370, § 4.
     
      
       Jarman on Wills, 385; Havens v. Sackett, 15 N. Y., 370.
     
      
       15 N. Y., 373.
     
      
       2 Story Eq. Jur., § 1089.
     
      
       Fuller v. Yates, 8 Paige, 325; Church v. Bull, 2 Den., 430.
     
      
       Gretton v. Haward, 1 Swanst., 425, cited in 2d Story Eq. Juris., § 1080, note.
     
      
       2 Story Eq. J., § 1085; 1 Jarman on Wills, Perkins’ ed., 375, 376; Willard’s Eq. Juris., 545, 546.
     
      
       Newton v. McLean, 41 Barb., 286.
     
      
       48 Eng. Ch., 2 McNaghten and Gorden, 298.
     