
    George D. L. Harison and Others, Appellants, v. Alson Caswell, Respondent.
    
      Htfectment—possession presumed’ in a party who traces Ms title from the State — adverse possession — occupancy under a contract of sale not a basis for adverse possession—service of notice to redeem—proof thereof with the record of. a Gonvptroller’s tax deed, required. ’ "
    When on the trial of an action- in ejectment the defendant moves for a- .nonsuit . on the ground that there is no evidence that the plaintiffs ever had possession of the lands “ under the paper title shown,” the plaintiffs, in making a case on appeal, are entitled to assume that the records and conveyances put in evidence by them show, upon their face, -title -in the plaintiffs. .
    Where one who brings an action of ejectment traces his paper title back to the State, he need not show possession. -
    A person who establishes such a legal title- to premises -is presumed to have been in possession thereof within the time .required by law.
    Where it appears that the defendant, in an action of ejectment, entered upon and thereafter continued in the possession of the premises under an instrument which stated that he might occupy them, until the first day of June then next upon certain conditions, and that, if on that day he should pay a certain sum, he should have a contract for the purchase of the premises running for six years upon the usual terms, at twenty dollars an acre, and he never surrenders the possession thus acquired, his entry under the" instrument is not adverse to his vendor and cannot be made the basis of an adversé possession.1 Semble, that it is necessary to the validity of a title acquired under a deed given by the Comptroller upon a tax sale that it should appear.that the six months’ notice to redeem, which is required by section 68 of chapter 427 of the Laws . of 1855, was given to the occupant of the premises.
    
      Semite, that such notice must be given when any portion of the lot is occupied at the time of the giving of the deed by the Comptroller, although, not'occupied when the.two years allowed by the statute for redemption expired and the purchaser became entitled to a deed, and proof of the service of the notice should accompany the record of the Comptroller’s deed.
    Appeal by the plaintiffs, George JD. L. Harisoh and others, from a judgment of the Supreme Court in favor of the defendant, entered in the .office of the clerk" of the county of St. Lawrence on the 23d day of November, 1896, upon the verdict of a jury directed1 ¡by. the court, and also from an order entered in said clerk’s office on the 23d day of November, 1896, denying the plaintiffs’ motion for a new trial made upon the minutes.
    
      
      Nelson L. NoMnson, for the appellants.
    
      John G. Keeler, for the respondent.
   Merwin, J.:

This action was brought in July, 1895, to recover the possession of about thirty-six acres of land in lot 12 of Harison tract, in the town of Pierrepont, St. Lawrence county. The defendant in his answer-alleged that on December 28, 1873, Thomas L. Harison, one of the plaintiffs, with authority from all, executed and delivered to defendant an instrument dated that day, which is’set out in full. It states that the defendant “ may occupy the lot ” in question until the first day of June then next on certain conditions, and “if on said first day of June next, said Caswell shall pay not less than one hundred dollars on account of the price thereof, he shall have a contract for said lot on the usual terms running six years from April 1, 1873, at twenty dollars per acre, with interest from that date.” It was further alleged that defendant at once took possession under said instrument and before the 1st of June, 1874, elected to purchase the lands and paid to plaintiffs $100, and has ever since- claimed to be the owner and has performed all the conditions of the instrument to be by him performed. The occupancy by defendant was set up as a bar under the Statute of Limitations. For a second defense a counterclaim was alleged for moneys paid on the instrument of December 28, 1873, and for cost of improvements on the premises, and for moneys paid on acquiring a tax title upon a sale for taxes assessed prior to December, 1873. For a third defense, ownership was alleged under a deed from John M. Peck dated March 2, 1882, and a deed from the Comptroller to Peck on the 30th of June, 1879, based on a sale in September, 1871, for taxes. As a fourth defense the six-year Statute of .Limitations was set up, and as a fifth defense there was a general denial of all the allegations of the complaint. In the reply to the counterclaim the plaintiff admitted the execution and delivery of the paper of December 28, 1873, the possession by the defendant and his payment of $100 and, in substance, denied ail the other allegations.

It is claimed by the defendant that the plaintiffs failed to show title in -themselves of the property in question. It may be assumed that, under the issue presented by the general denial, the plaintiffs were bound to prove title. The record before us shows that the plaintiffs to maintain their case offered in' évidence a large number of conveyances and records, 'commencing with a patent froin ' the State of New York to Daniel McCormack, dated March 3, 1195,' and ending with the will of Richard M; Harison, deceased, probated April-29, 1896. These were all received in evidence. They are .not set out in the case, so that the contents of these documents do not appear in the .printed papers. It is -argued by the defendant that the records offered are not connected with tlie property in question or with the plaintiffs, and that, therefore,- the judgment was properly directed for the defendant. The plaintiffs after offering the records and conveyances rested,, and the defendant “ moved to dismiss the complaint on the ground that there- was .no evidence that the plaintiffs ever had possession of the lands described in the' complaint under the paper title shown.” • No other ground of nonsuit was suggested and the motion was denied. The defendant then put-in evidence the Comptroller’s deed to Peck and the deed from Peck to defendant. The description in these deeds, which was claimed to ■cover the property in question,, was as follows: “Harison tract. "* * Lot twelve (12), one hundred (100),acres in the southeast, ■corner thereof:” The defendant gave evidence tending to show that "the lands in question were a part of the 100 acres in the southeast ■corner. The plaintiffs in rebuttal gave evidenceas to. the occupation of the property from'1859’to the present time and as to the manner •of the. assessments from 1861 to 1865. At the close of the evidence the plaintiffs asked for the direction of a verdict in their favor on: the ground that there was -no proof of service of notice to- redeem ■on the occupant of the lands. 'This motion was denied. Tlie ■defendant then moved that a verdict be directed in his favor. No grounds were' stated. This motion was granted. The plaintiffs did not ask to go. to the jury. ' , ;•

It will be observed that upon the motion for a nonsuit at the -close of the plaintiffs’ evidence,, no ground, was suggested except that there was no évidence that the. plaintiffs ever had possession of the lands under the paper title shown,” This assumed, and we nnist assume, that the records and conveyances put in evidence- by the plaintiffs- did-upon their' face show title, in the jdain tiffs, and the plaintiffs in making up the casé on appeal had-the right to so assume. "We must assume that all the documents offered were actually present at the trial. The defendant based one 'of his defenses upon dealings with the plaintiffs as owners, and the course of the trial would seem to indicate that there was no serious dispute as to plaintiffs’ original ownership. No point on this subject was raised at the close of the case.

The objection taken on the motion for a nonsuit was not a good one, as the title shown came from the State. (N. Y. Central & H. R. R. R. Co. v. Brennan, 12 App. Div. 103; De Lancey v. Piepgras, 138 N. Y. 26.) A person who establishes a legal title to premises is presumed to have been possessed thereof within the time required by law. (Code Civ. Proc. § 368.)

Assuming then that plaintiffs made out a prima facie case, did the defendant show a defense? He did not show adverse possession for twenty years. His entry under the instrument of December 2,8, 1873, was not adverse to plaintiffs. (Babcock v. Utter, 1 Keyes, 397.) He never surrendered the possession which he acquired under that instrument. (Rhoades v. Freeman, 9 App. Div. 20.) The plaintiffs iii the reply admit that the defendant Peck called upon Thomas L. Harison, but they deny the allegations of the answer as to what then occurred and the proofs do not show it. If the defendant held adversely from the time he took the deed from Peck (as to which see O'Donnell v. McIntyre, 118 N. Y. 156), that deed, being given in 1882, would not sustain the defense.

Assuming that the defendant is in a position to get the benefit of a tax title, the question arises whether the Comptroller’s deed to Peck was valid, it not appearing that the grantee gave the six months’ notice to redeem required by section 68 of chapter 427 of 1855. The claim of the defendant is that-the direction of the verdict for defendant amounts to a finding that no one was in occupation at the expiration of two years from the sale, and that, therefore, there was no occasion to give the notice.

The sale, as stated in the Comptroller’s deed, was in September, 1871. It was shown on the part of the plaintiffs that one Perry was in possession in September, Í873, and that he was succeeded in the possession by the defendant. This was in substance the testimony of the witness Rafferty, and it was not contradicted by the defendant, although if not correct it might have been. The defendant was in a position to know whetiier or not it was correct.- A portion of the premises was cleared and under cultivation and there was a house on the premises. The evidence did not, I think, warrant the conclusion that the premises were not occupied in September, 1873. Concededly they were occupied at the date of the deed from the Comptroller to Peck in June, 1879.. In Lucas v. McEnerna (19 Hun, 14) it was held that “ the six months’ notice to redeem, which the statute requires to be gi-ven to the occupant of any lot sold by the Comptroller for non-payment of taxes, must be given when any portion of the entire lot is occupied at the time of the giving of the deed by the Comptroller ; the notice must be given notwithstanding the fact that the land was not occupied when the two yéars allowed by the statute for redemption had expired, and the , purchaser became entitled to a deed.” (See, also, Lockwood v. Gehlert, 127 N. Y. 241, 250; 2 Black, on Tax Titles [5th ed.], § 681.)

The court, I think, erred in holding, in effect, that it was not necessary for the defendant to show the service of notice to redeem.

If the defendant be deemed in possession under the instrument of December 28, 1873, as under a contract of sale, he was in default and ejectment would lie. (Plet v. Willson, 134 N. Y. 139, 141; Pierce v. Tuttle, 53 Barb. 155.) Section 65 of chapter 427 of the Laws of 1855, as amended by chapter 448 of the Laws of 1885,. did not make the Comptroller’s deed evidence of service of the notice required to be served by the grantee under section 68 of the act of 1855. If the land was occupied the deed was not properly recorded .unless accompanied wdth the proof of the service of the . notice as required by the- act. (Laws of 1855, chap. 427, §§ 68-73; Turner v. Boyce, 11 Misc. Rep. 502.) In Ostrander v. Darling (127 N. Y. 79) the'premises were unoccupied.

We think the trial court erred in directing a verdict for the defendant.

All concurred.

Judgment and order reversed and. a new trial granted, costs to abide the event.  