
    Baker v. Oakwood.
    
      (Supreme Court, General Term, Fourth Department.
    
    July, 1888.)
    1. Limitation of Actions—Adverse Possession—Life Tenant.
    The title of one having a life estate in land in the adverse possession of another, claiming the fee under a foreclosure sale, for the period required by the statute of" limitations to bar an action therefor, during all which time the life tenant was under no disability, vests in the person in possession, and therefore such life tenant. has, after that time, no interest subject to grant.
    8. Husband and Wife—Interest in Wife’s Property—Land in Possession of An. other.
    A husband acquires no interest in lands of his wife which, during the whole of' the coverture, are in the adverse possession of another.
    Appeal from special term, Onondaga county.
    Action by Letitia 0. Baker against Oakwood, a corporation, to recover the - possession of one undivided fourth interest in a tract of land .formerly owned by her father, Charles B. Hargin. The land in 1835 was mortgaged by the-person owning the entire tract, and before August 6, 1840, the date of Charles ■ B. Hargin’s death, he acquired title to the equity of redemption of one fourth, interest therein. In 1845 the whole tract was sold under foreclosure decree, but the proceedings were so irregular as not to divest the owners of the equity of their interest, as seemed to be conceded by all parties, and the purchaser’s interest became vested in defendant in 1859, from which time its - possession was continuous. Charles B. Hargin left surviving him his widow, Mary C. Hargin, one son, Charles Hargin, and two daughters, the plaintiff" and Julia Hargin. The son was born July 31, 1834, and died unmarried and.. intestate in 1881. Julia was born December 12, 1838; was married in 1858-to George Pomeroy, and, having had but one child, which lived but two. months, died intestate in 1859. Her husband was living at the institution off this action. Plaintiff was born in 1831; married in 1848; divorced in 1850,. and married again in 1865; and remained under coverture until the institution of this action. In 1885, Mary C. Hargin conveyed her interest in the-land to the plaintiff. The action was tried without a jury, and judgment, was rendered for the defendant, and plaintiff appeals.
    Argued before Hardin, P. J., and Follett and Martin, JJ.
    
      Wüliam S. Andrews, for appellant. George S. Comstock, for respondent.
   Follett, J.

The plaintiff’s right to recover the undivided twelfth which she inherited August 6, 1840, from her father, accrued, at the latest, July 3, 1849, when Mrg, Raynor went into possession of the land under her deed,. October, 81, 1852, the plaintiff became of age, was then unmarried, and so" remained until 1865, since which she has been a married woman. May 6, 1870, (c. 741, Laws 1870,) the exception theretofore existing in the statutes of limitation in favor of married women was abolished. Thirteen years elapsed between the date when she arrived at full age and the date of her second marriage, and 16 years elapsed between 1870 and the date of the commencement of the action. Thus it appears that for more than 29 of the 37 years which elapsed between the date when the plaintiff’s right of action accrued, and the date of the beginning of this action she has been able to sue, and no exception in her favor has existed in the statutes of limitation. The' plaintiff’s counsel does not contend in his points that a recovery can be had for this twelfth, and his contention at the bar of the court was put proforma. The statute of limitations is a bar to the plaintiff’s right to recover this twelfth interest. Old Code, §§ 78-81, 101. George Pomeroy never acquired an estate by the curtesy, because his coverture began after an adverse possession had begun, and ended during its continuance. Parker v. Carter, 4 Hare, 400, 416; Den v. Demarest, 21 N. J. Law, 525; Jackson v. Jackson, 5 Cow. 74, 98; Adair v. Lott, 3 Hill, 182, 186; Ferguson v. Tweedy, 43 N. Y. 543, 548; Gibbs v. Esty, 22 Hun, 266; Mercer's Lessee v. Selden, 1 How. 37, 54; 4 Kent, Comm. 30; 1 Washb. Beal Prop. (4th Ed.) 173; Williams, Beal Prop. (12th Ed.) 228. It follows that upon the death of Julia Pomeroy, Ho-' vember.5, 1859, her twelfth descended equally to this plaintiff and Charles' Hargin, subject to a life-estate in favor of Mary G. Hargin, their mother, and upon the death of Charles Hargin, July 12, 1861, his interest (three twenty:' fourths) descended to this plaintiff, subject to a life-estate of said Mary C. Hargin, her mother. 1 Bev. St. p. 752, § 6.

October 16, 1885, Mary 0. Hargin “quitclaimed and released” her life-estate in the two-twelfths which descended from Julia and Charles to this plaintiff, who insists that her life-estate merged in the remainder, and that she has a present right to recover said two-twelfths. To this the defendant-makes several answers, among which are: (1) That defendant had acquired', title to the mother’s life-estate by adverse possession long before the date of her release or grant to the plaintiff; (2) that the instrument executed by the' mother to this plaintiff is a grant, and void under 1 Bev. St. p. 739, § 147,; which provides: “Sec. 147. Every grant of land shall be absolutely void if" at the time of the delivery thereof such lands shall be in the actual posses-* sion of a person claiming under a title adverse to that of the grantor. ”

Mary C. Hargin has been at all times since the deaths of Julia and Charles competent to sue for the recovery of her life-estate, and no exception has existed in her favor in the statutes of limitation. More than 20 years having elapsed between those deaths and her release or grant, her right to recover her life-estate from this defendant, which has occupied the land since September 3, 1859, under a grant, claiming to own it, was barred at the date of her release or grant to the plaintiff. This proposition the plaintiff’s counsel does-not, we think, dispute, but contends that by the release or grant the plaintiff acquired the same right of action that she would have acquired had her mother died at the date of the release or grant.

This brings us to the question whether this defendant had acquired title' by adverse possession to the mother’s life-estate at the date of her release or grant.

It is interesting and instructive to follow the history of the statutes of limitation since the statute of Merton, and trace the changes in the views of the courts and text writers upon the much-debated question, whether title can be acquired by adverse possession. Bracton, who is supposed to have written during the reign of Henry III., says that title maybe so acquired. 1 Bract. (Twist’s Ed.) 413, 414. Cruise, who wrote in about 1804, when the statute of 21 James I, was in force, says (volume 3, tit. 31, c. 2, §§ 1, 2,) that title cannot be so acquired, and cites Davenport v. Tyrrel, 1 Wm. Bl. 675, Lofft, 84. Washburn says title cannot be so acquired. 3 Washb. Beal Prop. {4th Ed.) 52. Section 34, c. 27, 3 & 4 Wm. IV., passed July 24, 1833, provides: “See. 34. And be it further enacted that, at the determination of -the period limited by this act, to any person for making an entry or distress, ■or bringing any writ of guare impedit, or other action or suit, the right and title of such person to the land, rent, or advowson for the recovery whereof ■such entry, distress, action, or rent, respectively, might have been made or brought, within such period, shall be extinguished.” Under this statute it ■has been uniformly held that adverse possession, continued during the time within which an action must be brought, divests the title of the true owner, and vests it in the person who has held it adversely. Society v. Richards, 1 Dru, & War. 258, 289, 4 Ir. Eq. 177, 207, 1 Con. & L. 58, 85; Scott v. Nixon, 3 Dru. & War. 388, 6 Ir. Eq. 8; Dixon v. Gayfere, 17 Beav. 421; Trustees v. Dougall, 1 Macq. H. L. Cas. 317; Darb. & B. Lim. c. 15; Digby, Beal Prop. (2d Ed.) 392. For a history -of the English statutes, see 2 Beeve, Eng. Law', (Pin. Ed.) 38; 3 Beeve, Eng. ^aw, (Pin. Ed.) 310.

This precise question has not been expressly determined by the court of appeals, but this court, following the expressions and assumptions of several reported cases, has held that title to real estate can be acquired by adverse ■possession. Birdsall v. Cary, 66 How. Pr. 358, 366; Eldridge v. City of Binghamton, 42 Hun, 202, 204.

Leaving the discussion of the difference between the statutes of limitation, under which the reported cases have arisen, to the court of last resort, ■which must ultimately decide this precise question, this court is constrained ■ by the precedents to hold that, under the statutes of limitation of this state, title may be acquired by adverse possession; and that, under this rule, the life-estate of Mary C. Hargin had vested in the defendant prior to her release ■or grant to this plaintiff. This defeats the plaintiff’s present right to recover any interest in, or part of, the land in dispute, and renders it unnecessary to ■consider whether the instrument executed by Mary 0. Hargin is a release, or .grant, and void by the section of the statute above quoted, known as the statute against champerty. Neither is it necessary to determine whether the defendant is a mortgagee in possession; nor is it necessary to discuss the ex■ceptions taken to the rulings upon the admission and rejection of evidence • bearing upon this question; for we have assumed that the foreclosure did not ■ divest the title of the owners of the equity of redemption. The judgment is ■ affirmed, with costs. All concur.  