
    (70 Hun, 600;
    mem. report without opinion.)
    McClellan v. zwingli.
    (Supreme Court, General Term, Third Department.
    July 8, 1893.)
    1. Deed—Delivery—Presumption.
    Delivery of a deed properly acknowledged, and in the possession of one claiming under it, will be presumed.
    3. Ejectment—Title—Evidence.
    In ejectment, the mere introduction of a deed, without any evidence of title or possession in the grantors, is not sufficient proof of title.
    3. Same.
    The fact that the deed claimed under is more than 30 years old does not remove the necessity of proving title or possession of the grantors, especially where the deed is not shown to antedate the occupancy of defendant.
    Appeal from judgment on report of referee.
    Ejectment by Betsey E. McClellan against Lucy Jane Zwingli. Judgment for defendant. Plaintiff appeals.
    Affirmed.
    Argued before MAYHAM, P. J., and PUTNAM and HERRICK, JJ¡
    S. W. Russell, for appellant.
    Westfall & Graham, (D. M. Westfall, of counsel,) for respondent.
   PER CURIAM.

We think the finding of the referee, that the deed under which plaintiff claimed title was not shown to have been delivered, was erroneous. Being properly acknowledged, and in the possession of the plaintiff, delivery will be presumed. But the error of the referee in the regard above mentioned did not injure plaintiff, for the reason that she failed to show any title to the premises in suit. The deed referred to was received in evidence by the referee, and, after plaintiff had introduced the same, she rested, without any evidence showing title in the grantors named in said deed, or any possession in said grantors of that portion of the premises occupied by the defendant. In Abbott’s Trial Evidence, (page 705,) the proof required in such a case is correctly stated, viz.: “Plaintiff, relying on the evidence to him from grantors other than the state, must show that his grantors had either title, or possession claiming title.” The fact that the deed under which plaintiff claimed was more than 30 years old does not change the rule, which requires, in such a case, proof of the title or possession of the grantors. This is especially true in the absence of evidence showing that the deed antedated the occupancy of the defendant of the land in suit. In this case there was no evidence whatever showing the title of plaintiff’s grantors to the premises occupied by defendant, or that said grantors had ever been in possession thereof. The judgment should be affirmed, with costs.  