
    CHARLES W. DOHERTY, et al., as Grantors of Charles Jones, Respondents v. GEORGE W. MATSELL, Jr., et al., Appellants.
    
    
      Void or voidable tax lease, possession under, effect of on owner—Statute of limitations, when it begins to run—Matters not constituting claim outside of a tax lease—Unequivocal hostile claim necessary.
    
    Possession under a void tax.lease will not constitute adverse possession against the true owner where the possessor makes no claim except under the lease.
    In such case the statute of limitations does hot begin to run until the expiration of the tax lease, and the true owner has twenty years thereafter within which to bring ejectment.
    
      The erection by such tax lessee of buildings on the leased premises, renting the buildings and exclusively controlling them, do not of themselves establish a claim hostile to a claim under the lease; nor do they in connection with an assignment and a deed of the character next hereafter referred to.
    An assignment by a lessee in a tax lease of “ all my estate, etc., which I now have by means of said indenture or otherwise ” (the indenture referred to being the tax lease), accompanied by a quit claim deed simultaneously executed by the lessee and his wife, do not indicate or establish any actual claim outside of the tax lease.
    The tax lessee upon (after making such assignment and quit claim deed) re-entering into possession during the running of the tax lease without any re-conveyance or re-assignment might then begin a possession adverse to the owner in fee; but to do so he must unequivocally make an actual claim hostile to any claim under the tax lease.
    Before Sedgwick, Ch. J., Freedman and Truax, JJ.
    
      Decided June 20, 1888.
    Appeal from judgment.
    Action of ejectment, commenced October 19, 1883.
    The facts sufficiently appear in the opinion.
    The case was tried before O’Gormar, J., without a jury. At the conclusion of the testimony the judge granted a motion to. dismiss the complaint, writing as follows:
    “In this action of ejectment, the general term of this court directed a new trial, for the purpose of determining the question left undisposed of at the former trial, whether the plaintiffs had good title in the premises in dispute. 54 Super. Ct., 29. As to a claim to adverse possession, which'had been set up by the defendants by reason of the-occupancy of the premises by George Matsell, senior, under certain tax leases, the general term held, that such adverse possession did not exist, chiefly becaus'e the owner of the fee had not, during the running of these leases, the right to immediate possession, and could not have succeeded in action of ejectment against said Matsell, senior.
    “At the recent trial before me without a jury, the defendants changed their plan of defense, and produced evidence for the purpose of proving that these tax leases were absolutely void; that they presented no obstacle to the recovery of possession by.the owner in fee, and that, therefore, said Matsell, senior, had adverse possession as against the owner.
    “It is convenient to deal first with this new contention on the part of the defendant, because, if he can sustain it, the plaintiffs’ action must fail.
    “The first of these tax leases was executed in Sep- ■ tember, 1848, by the mayor, etc., to said George W. Matsell, senior, for the term of twenty-five years, which wrould not expire until September, 1873. This lease, soon after its execution, duly recorded at the request of Matsell, senior, and he thus called public attention to his title as tax lessee. Matsell, senior, first entered into possession of the premises in 1849, and, as far as appeared, under that tax lease. There is no evidence that he then or afterwards, made any other claim of title.
    “ He remained in possession of the premises, built on them, collected rents, until he conveyed them to one Mickle, by a quit-claim deed, dated February 28,1857. He then also assigned the tax lease to Mickle, for a valuable consideration ($5,057), as stated in the deed of assignment. Mickle thereupon entered into possession, and received rents, etc., for a year, when he resigned his possession to Matsell, senior, who re-entered upon the premises, but without any written conveyance to him by Mickle, or any reassignment to Matsell, senior, of the tax lease.
    “ During the whole occupancy of the premises by this Matsell, before his conveyance to Mickle, he never in any way disaffirmed- or impugned the validity of the tax lease to him, or set up or claimed any other title to the premises than that which depended on the tax sale.
    “In executing the quit-claim deed, no other title was asserted by Matsell, and his assignment of the tax lease to Mickle for $5,057, was not only inconsistent with any claim that the tax lease was invalid, but was a direct admission that it was valid and valuable.
    “ The defendants now claim that that tax lease was absolutely void.
    “I am not of that opinion.
    “At the worst it was only voidable and was effectual until its invalidity was asserted and proved in some legal proceeding to avoid the sale.
    “No claim that it was invalid was made by the owner in fee or by Matsell, senior, during the whole term of the- lease, for twenty-five years. Matsell, senior, derived from it and enjoyed all substantial advantages and emolument, as if it was a valid lease, and he could not have been allowed to impugn its validity, after its term had expired. Ingraham v. Baldwin, 9 JSf. Y. 46. A tenant, accepting the advantages of a lease, is estopped from denying the title of his lessor, or the truth of the recitals in the lease. Bridges v. Wyckoff, 67 A7". Y. 130.
    “If Matsell had any interest in the premises, other than that which he deserved under the tax lease, it was for him to show that interest. Bedell v. Shaw, 59 A7". Y. 49.
    “ Whether the lease was void or voidable, Matsell, senior, held under that title and none other, up to .the time of his quit claim deed to Mickle, and if that title was, as is now claimed, void, Matsell, senior, had no title under a written instrument, as under section 370 of the Code, or under a claim of title without a written instrument, exclusive of' all other title, as under section 371 of the Code; and he was a mere intruder and trespasser on the premises. These sections of the Code are only declaratory of the rules of law in force when these transactions occurred. Mere occupancy of land is not adverse possession. In order to constitute adverse possession, sufficient to defeat an ejectment, the defendant must show that his occupation was under claim of title, hostile to every and all other title. Sturges v. Parkhurst, 50 Super. Ct. 306, 307, 311; Bliss v. Johnson, 94 2V. Y. 242. The requisites of adverse possession are occupation and the quo animo. Jones v. Smith, 73 N. Y. 205.
    “ Up to the date of the quit-claim deed of Matsell, senior, to Mickle, the former had no such adverse possession of the premises in question.
    
      “ Mickle, holding or appearing to hold, under a deed from Matsell, senior, might have claimed adverse possession, as against the owner in fee, for the year during which he, Mickle, did occupy the premises, but there is no ground whatever for any presumption that Mickle ever acquired, or claimed to have acquired any title to the premises under the quibclaim deed, specially, and apart from the title depending on the tax lease, assigned to him by Matsell, senior, simultaneously with the execution of the quit-claim deed. On the contrary, the only reasonable presumption is that the tax lease was the written instrument on which he relied, to which the quibclaim deed was merely subsidiary. The tax lease was the only written instrument that Matsell, senior, had to show for any title, or color of title, which he may then have claimed. Mickle, therefore, had no possession adverse to the plaintiffs.
    “ What was the attitude of Matsell, senior, on his re-entry, after Mickle had retired? This, the defendants regard as the cardinal question in this case, for, if Matsell, senior, on re-taking possession, acquired any title, on which adverse possession could be founded, a period of twenty years adverse possession might be claimed against the plaintiffs.
    “ Matsell, senior, when he re-entered, had no written reconveyance from Mickle to him, and no re-assignment to him of the tax lease. So far, he has no written title, and there is no evidence that he made any claim of title, exclusive of all other title, as required by section 372 of the Code. But he soon secured a written conveyance to him, on which he might support a claim to right of entry and possession. A tax lease was executed by the mayor, etc., to one Owens, in November, 1861, and assigned by Owens to him, Matsell, senior, for value, in 1862. This lease was for fifteen years and would not expire until November, 1876, and, for all that appears, he held under that lease as his only ground of title.
    “ It is now claimed that this lease also was absolutely void. As I have said as to the former lease, Matsell, senior, never, in any way, impugned the validity of this lease during its existence. If he did not hold under that lease as his claim of title, he was as wholly without title as he had been before he executed his quit-claim deed to Mickle. In either case he had no adverse possession.
    “ There is still another aspect of the case, as to which a word should be said. Accepting the defendants’ proposition that the two tax leases were absolutely void, they yet would, be valid as licenses, enabling Matsell, senior, to enter upon the premises and collect the rents thereof. In such a case, possession so obtained does not constitute adverse possession. St. Vincent’s Asylum v. Troy, 76 N. T. 113.
    “ Matsell, senior, executed a deed of bargain and sale of the premises to his son, George W.'Matsell, junior, on April 22, 1870, and Matsell, junior, entered upon and has continued to occupy the premises until the commencement of this action, October 19, 1883.
    “ The only claim of adverse possession, in my opinion, which can be made with any semblance of authority, by the defence, is during the one year during which it is claimed that Mickle held under a written instrument— that is, the quit-claim deed from Matsell, senior, and the period when the defendant, George W. Matsell, son of Matsell, senior, held actual possession, after execu-. tion of the deed of bargain and sale from Matsell, senior, to him, April 22, 1870', and the time of the commencement of this action, October 19,1883, which two periods, together, would not amount to twenty years.
    “ The question as to whether the tax leases were, by reason of defects in the proceedings, antecedent to their execution, voidable, and could have been set aside, if proper and timely measures had been taken, either by the owner in fee, to set aside the sale, or by the lessee, to recover the money paid by him, need not be discussed.
    “ Conceding that they were voidable, neither the owner in fee, nor the tenant, Matsell, senior, did take any such measures and the leases became unassailable, and binding on all parties concerned, by the inaction of those who were in a position to impugn them.
    “ The tax leases, as against the parties to them, and as against the owner in fee, were not invalid, but were effectual and binding. Clark v. Mayor, etc., Super. Gt., January 3, 1888.
    “ But even granting that these leases were invalid, there is enough of evidence, direct and inferential, that Matsell, senior, treated and bought, and used these tax leases as muniments of title, that he sold one of them for a considerable sum of money, and that he never made any claim to title to the premises, on any other ground.
    “ It is my opinion that the evidence fails to support the claim of adverse title in Matsell, senior, or in the defendant, Matsell, junior, for a period long enough to defeat this action.
    “ The only remaining question is as to the title of the plaintiffs.
    “In an action of ejectment the law requires that the plaintiff prove that he or his ancestor, predecessor, or grantor, was seized, or possessed, of the premises in question, within twenty years before the commencement of the action. Sherman v. Kane, 86 JY. Y. 64. Plaintiff can recover only on the strength of his own title, not on the weakness of his adversary. Bowers v. Arnoux, 33 Super. Ct. 530.
    “The various objections made by the defendants to the testimony, on the part of the plaintiff, in support .of their claim of title for more than twenty years before the commencement of this action are not well taken. The testimony of Samuel Waldron was as clear, distinct, and definite as to transactions which occurred in 1828, and as to the seisin and possession of Yallis Hopper at that time as could have been expected, and was properly admitted as evidence.
    “ The objections to the admissibility of the various deeds put in evidence by the plaintiffs are not sustained. Hunt v. Johnson, 19 JSf. Y. 279, 293.
    “ The identity of the premises as described in the deeds with the premises in suit, is sufficiently proved by Holmes the surveyor, and by the maps, plaintiff’s Exhibits 3 and 13. The identity of the parties to the several deeds is sufficiently proved.
    “ The objection as to the deed by Bayley and wife, to James Hathaway, that the execution by the wife was not properly acknowledged, is not material. The deed of the husband alone conveyed all the estate subject to a contingent and inchoate right of dower in the wife, capable of maturing only on his death. There is no proof that either the husband or wife here, is living or dead. In any case the husband had the questionable right to transfer by deed, two thirds of the property. Witthaus v. Schack, 105 JST. Y. 339. The right of even a widow to dower, until it is admeasured, is a mere chose in action, and only a claim.
    “ The objection as to the informality of the execution of the will of Mary O. B. Penniman, is not material. There is evidence that the devisees under the will were also the heirs-at-law of the testatrix, and the only person to inherit, if no will had been made. Their conveyance to John Doherty, the plaintiff’s intestate, was valid.
    “ As to the maps produced on behalf of the plaintiffs, they were taken from the register’s office, and had been in the custody of that public officer for many years, and in public use. In my opinion they were entitled to be regarded as public documents, subject to public use, and as such, admissible in evidence.
    “The objection to the deed to Charles Jones from his grantors, is not sustained. The description of the property is sufficient for identification.
    “ The proof of legal title submitted by the plaintiffs is, in my opinion, sufficient, and the best that under all the circumstances could have been expected, and could have been procured. The legal title being upheld, possession within the time required by law is presumed. Code Civil Pro., § 368; Florence v. Hopkins, 46 Ah Y. 182.
    “ The various objections on the part of the defendants to admissibility of evidence are overruled, and exceptions allowed.
    “ The defendant’s motion to dismiss the complaint is denied.
    “Let judgment be entered, giving to the plaintiffs possession of the real property in question, with costs.”
    
      Thomas H. Bar owslcy, attorney, and John C. Shaio of counsel for appellants, argued:—
    I. Upon the appeal from the former trial of this action the general term held that the right of the plaintiffs to bring an action of ejectment was suspended by the tax lease under which plaintiffs alleged that defendants occupied the premises or claimed title; and held that the presumption being that the lease was valid, the adverse possession urged by the defendants could not avail them while in possession under the tax lease because : (a.) Adverse possession could not be originated while in possession under the tax lease. (b.) The only paper title claimed by Matsell, senior, was apparently for a term of years, and that fact Avould not support a presumption of a claim of higher estate for the mere fact of possession. The defendants now obviate this by showing the tax lease to be void and forming no impediment to the right of the plaintiffs to institute their action at any timé.
    II. The tax leases made by the mayor, aldermen and commonalty of the city of New York to George W. Matsell, Sr., and Francis Owen were null and void for failure to comply with the requirements of law preliminary to the making of said leases. These facts and conclusions were found below:
    (1.) That the lease Avas given upon a sale for the taxes of 1841 and 1842. (2.) That the paper purporting to be a certificate of the assessors to the tax for 1841 was not verified. (3.) That there was no certificate for the tax for 1842. (4.) That the affidavit of the service of the notice demanding payment of the taxes for 1841 is not in accordance with the statute and is insufficient. (5.) That the notice demanding payment of the taxes for the year 1842 is insufficient, defective and void. (6.) That the taxes of 1841 and 1842 were illegally assessed upon the premises because the oath of the ward assessors Avas not in tfye form and was not signed or verified as required by the statute. These facts render the tax lease void. Bensel v. Gray, 44 Super. Ct. 372; Donohue v. O’Connor, 45 Ib. 278; Johnson v. Ellwood, 53 N. Y. 431; Brevoort v. Brooklyn, 89 Ib. 128 ; Shattuck v. Bascom, 105 Ib. 39. The lease being void no right could be acquired under it. The right of the owner to bring ejectment was never for an instant suspended by it. It was as if it never existed. Possession of the premises described cannot be referred to it. It can have no effect on the character of the possession. No estoppel can arise out of it; and would not even if it were valid. Sands v. Hughes, 53 N. Y. 287.
    
      HI. The plaintiffs have failed to show that they or their ancestors, predecessors or grantors were seized or possessed of the premises in dispute within'twenty years before the commencement of this action. Code Civil Proc., § 365. The tax lease being out of the way (it not impeding for an instant an action of ejectment, not operating as an estoppel, and possession not being referable to it) the question is were the possession and acts of defendants of such character as to constitute adverse possession so as to cause the running of the statute of limitations against the plaintiff. We contend that they- were. George W. Matsell acquired a tax lease of the premises in September, 1848, and in 1849 entered the premises which were then unenclosed, vacant lots and erected five buildings thereon and enclosed the same with a substantial fence or enclosure. He received and appropriated the rents of said premises to his own exclusive use until 1857 when he assigned the lease and executed a quit claim deed of the premises to Andrew H. Mickle, who entered into the use and occupation of said premises under said deed, and remained thereon and received the rents thereof until the year 1858. In the year 1858 George W. Matsell re-entered the premises and remained in possession thereof until 1864. He received the rents of said premises and remained in occupation thereof until in 1864. The act of Matsell, in conveying the premises to Mickle is significant in attempting to ascertain the character of his possession. Such an act cannot be regarded as a recognition of any outstanding, superior or paramount title and must be taken as a definite declaration of ownership showing a hostile possession and holding towards all other persons. The ownership of the tax lease did not preclude him from asserting a dominion over the premises so as to begin an adverse possession as against the plaintiffs, and, according to Sands v. Hughes, 53 N. Y. 287, this was the legal effect of the conveyance by Matsell, to Mickle. The adverse possession once begun (Sherman v. Kanes, 86 N. Y. 57) there must have been some recognition of the title of the plaintiffs by Matsell, before his act of disseising, dispossessing or ousting Mickle could make him, quoad the plaintiffs, a mere trespasser. That is an attempt to relieve the plaintiffs’ case of fatal weakness, because they must show possession or seisin within twenty years. Matsell could only be a trespasser upon the property of Mickle, who was then in possession, because trespass is only and always a breach of or attack upon the possession, pure and simple. At that time and since the plaintiffs have been out of possession. The plaintiffs have not attempted to prove that the tax lease of 1848, was owned by Matsell, at the time of his reentry, and there is no proof whatever that the lease was re-assigned by Mickle to Matsell. There are two requisites to adverse possession, occupancy and the quo animo. In the case at bar the occupancy of Matsell is conceded. The quo animo must be established by acts; it is made out: (1st.) By entering upon the vacant lots and erecting the buildings thereon and appropriating the rents. (2d.) By executing a deed to Mickle and thereby assuming the ownership of and dominion over the premises, thus commencing an adverse possession. (3d.) By disseising Mickle, thereby asserting a right equal to the party disseised. Sands v. Hughes, 53 N. Y. 287. Sedgwick and Wait on Trial of Title to Land, §§ 754, 758; LaFramboisy. Jackson, 8 Cow. 609 ; Bradstreety. Huntington, 5 Peters U. S. 439; Monroe v. Merchant, 29 Barb. 402 ; Humbert v. Trinity Church, 24 Wend. 611. The quo animo having once been established, it is presumed to continue until the contrary appears. Jackson v. Thomas, 16 John. 300; Crary v. Goodman, 22 N. Y. 177. We, therefore, submit that the plaintiffs have wholly failed to bring their case within § 365 of the Code of Civil Procedure, by showing seisin or possession within twenty years before the commencement of this action—i. e., October 19, 1883.
    
      
      Alexander Thain, attorney and of counsel for respondents, on the questions raised on the appeal and then considered in the opinion, argued, among other things:
    I. The possession of George W. Matsell, having been commenced in 1849, and there being no evidence of title in him other than the tax lease, it will be presumed that his possession was under that lease. In fact, he assigned the lease to Mickle in 1857 and gave quit claim deed to accompany it at the same time. There is no evidence of any oral or other declaration of Matsell, making any other or different claim of title. The lease to Matsell shows that he took the same because of the neglect of “the owner” to pay the taxes; and he took for the term of twenty-five years, and for that term only, against the owner of the fee for the reason, that “ the person claiming title ” had not redeemed. This is more than presumptive—it is direct evidence that Mat-sell entered ‘‘ under and subordinate to the legal title.” Code Civ. Pro., § 368. If he had any other claim or interest the burden was on him to show it. Bedell v. Shaw, 59 N. Y. 49.
    II. The tax lease continued in operation for twenty-five years from September 25, 1848, and expired on the 25th of September, 1873, so that George W. Matsell and his successors in interest were rightfully in possession during the continuance of that lease, and had the right to remain in possession for one month thereafter, for the purpose of removing buildings, etc. Robinson v. Phillips, 65 Barb. 418; S. C., 56 N. Y. 634. The plaintiffs had no cause of action by way of ejectment, until September or October, 1873, and then it was that the adverse possession began ; or about ten years before the commencement of this action. No adverse possession could be acquired under the tax lease. Gross v. Welwood, 90 N. Y. 638 ; Bedell v. Shaw, 59 Ib. 46 ; Hoyt v. Dillon, 19 Barb. 644. The case of Sands v. Hughes (53 -N. Y. 287) is not in conflict, but rather in confirmation of this doctrine. There the plaintiff attacked the lease, and the court ruled, that if there was no lease, then defendants’ possession was not subordinate to, but rather adverse to the legal title; while if the lease were conceded defendants could not be ejected until after the expiration of the term.
    III. Possession under a tax lease “ in its beginning and ever since admits that there is a rightful title in fee, elsewhere than in the defendants, and that it is in the plaintiff, and admits that it was under that rightful title that possession was taken and is kept up. It is not a claim to the entire title or a claim to the fee. It is not a claim in utter hostility to the true title.....It is for the occupant to show that under that title he has a right to possession, for his possession" does not begin in hostility to that title, but in accord with it.” Bedell v. Shaw, 59 N. Y. 49.
    IY. The lease distinctly refers to some person other than George W. Matsell as the owner, as that the owner had, by notice been required to pay said taxes and that the owner of said five lots did neglect to pay said taxes that neither the person claiming title to said five lots, or any one in his behalf, did redeem (fol. 240); and that the lots were transferred to George W. Matsell for the term of twenty-five years “ against the owner or owners thereof and all claiming under him or them” (fol. 241).
    Y. The mayor not having contested the lease and the owner having seen fit to allow Matsell to use the property during the twenty-five years, in consideration of the payment by him of the tax; and his successors having had the benefit of the contract into which he entered, they cannot now repudiate it, or be heard to claim either that the lease is void or voidable. Upon its face the lease is in every respect regular and the recitals therein contained show that a valid estate was created in George W. Matsell for the term of twenty-five years. As against the parties to a deed and those who claim under them by matter subsequent, whether by privity of blood, estate or in law, recitals are conclusive. Abbott's Trial Evidence, 712, § 31; Torrey v. Bank of Orleans, 9 Paige 649; 1 Greenleaf on Evidence, §§ 23, 24; Bridges v. Wyckoff, 67 N. Y. 130. As against the owner of the fee or any person not a party to the instrument, itself, or a privy to such party, recitals are not conclusive, unless so made by statute. Brown v. Goodwin, 75 N. Y. 412. To maintain his position for the purpose of the present case, the defendant is understood to assert that the act of the mayor, etc., of New York was ultra vires. The principle of ultra vires, it is understood, can only be invoked by a person against Avhom the power is sought to be used, and is never permitted to be pleaded by one who has received the full benefit of the act complained of.
    VI. The lease being void, did not make it the less an instrument under which the lessee had claimed. St. Vincent Asy. v. Troy, 76 N. Y. 113. In Bedell v. Shaw, 59 N. Y. 46, the lease was held to be void, but that did not prevent the plaintiff’s recovery, although the defendant had been in possession over twenty years.
    VII. At most, these tax leases were voidable only, and can only be disputed or impeached by plea, act or otherwise, at the instance or election of some person— usually the party injured—entitled so to do. Wait’s Void and Voidable Acts, § 426; Anderson v. Roberts, 13 John. 515. In the case at bar, the defendants claiming through George W. Matsell, Sr., will not be heard to dispute the validity of a contract to which he was a party, and as to which he and they have received the full benefit intended thereby. The cases of Bensel v. Gray, 44 Super. Ct. 372, and Donohue v. O’Connor, 45 Ib. 378, are not in point. See Bedell v. Shaw, 59 N. Y. 49. No case can be found Avhere a party Avho has enjoyed the full benefit of a contract has been permitted to come into court subsequently, and gain any advantage by an allegation of its invalidity, unless, perhaps, in the case of an infant or other person not sui juris.
    
    
      VIII. The proof offered by the defendants on their own behalf does not tend to show that the defendants or George W. Matsell under whom they claim, had or claimed any other or different title than that conferred by him by reason of the tax leases to which reference has been made. By Exhibit A., George W. Matsell undertook to quit claim to one Andrew H. Mickle the lots in question, describing them by their numbers upon tax map for the years 1841 and 1842, which were the years that the taxes were levied, upon which his lease was based. Tfiis deed is dated the 28th day of February, 1857, precisely the same day that Matsell transferred to Mickle by indorsement thereon, the tax lease which he had previously acquired. This quit claim deed contains no covenants of any kind whatever, and in it is not an assertion of any title whatever in George W. Matsell. The most that can be claimed for it is an accompaniment to the assignment indorsed upon the tax lease. [It does not show that Matsell had or claimed to have any other or different title than the tax title, or that his interest which he acquired in 1848, was anything beyond the term of years conferred by the tax lease.] Under this assignment of the tax lease, and the accompanying quit claim deed, Mickle seems to have gone into possession of the property into 1857, and remained there about one year, when he restored possession to George W. Matsell; and as there is no record of any conveyance by Mickle, or assignment of the tax lease, and both Mickle and Matsell having, by their own act, recognized its validity, it is fair to assume that Matsell’s re-entry was as tenant to Mickle, and subject and subordinate to the title which Mickle accquired by assignment of the lease which then, by its terms, had about fifteen years to run.
    IX. Except the attack upon the leases, the full benefit of the term of which the defendants have had, no new proposition was presented for the consideration of the court other than had already been considered by the general term on the motion for a new trial. Doherty v. Matsell, 54 Super. Ct. 29.
    X. 1.—The theory of the defence appears to be, that to establish an adverse possession, all that is necessary is to show that one trespassed upon the land of the owner and put on some improvements, and that by so doing, without more, at the end of twenty years the trespasser is transformed into the owner, whereas the reverse is the law. Howard v. Howard, 17 Barb. 605. 2.—On one setting up an adverse possession, is thrown the onus of making out such adverse possession by positive proof. Jackson v. Winthrop, 12 Johns 368. 3.—The requisites of an adverse possession are the fact of possession and the quo animo. Jones v. Smith, 73 N. Y. 205. 4. “ If the custody and possession is shown to be equally consistent with an outstanding ownership in a third person, as with a title in the one having the possession, no presumption of ownership arises solely from such possession.” Rawley v. Brown, 71 N. Y. 89.
    
      
       Consult Doherty v. Matsell, 54 Super. Gt. 17.
    
   By the Court :—Sedgwick, Ch. J.

In this case, the important question is whether the possession of George W. Matsell, senior, was adverse to the plaintiffs, otherwise the true owners. • The plaintiffs proved sufficiently legal title in their ancestors in title. One of them was Henry P. Robertson, and the assessment of the tax, under the sale for which Matsell, senior, took the lease to be referred to, described Robertson as occupant and owner.

The time of Matsell’s possession, that is in question, was from 1849 to 1864, excepting for about one year, when one Mickle was in possession.

In 1849, Matsell entered into possession, and from that year to 1857, did such things in respect of the premises as building upon them, renting the buildings, and exclusively controlling them as matter of fact, that, if that were all the evidence as to his claim, it may be conceded that he would have been in adverse possession. But he entered under a tax lease, held it, and afterwards assigned it in 1857- Whatever he did was consistent with his being a lessee under a tax lease and there was no proof that he made any claim excepting under that lease. Therefore he claimed only for the term of the tax lease, which with his acts did not oust the plaintiff of the remainder or of the fee. Until after the term expired, the plaintiff was not put to an action, if he chose to acquiesce in Matsell’s claim.

On or after 28th of February, 1857, Matsell went out of occupation, one Miclcle going into possession. Mickle went in under the following circumstances. Matsell, senior, assigned to him “ all my estate, etc,, which I now have by means of the said indenture or otherwise,” referring to the tax lease. Evidently the word otherwise ” does not "indicate any actual claim in fact made outside of the tax lease. At the same time, he made a deed bearing the same date and acknowledged at the same time, before a notary. The deed and the assignment of lease are to be treated as one instrument so far as claims under them are to be considered. So far as the lease guides the claim, Mickle’s position was the same as was Matsell’s, senior, theretofore. So far as the deed affects the nature of the claim, as there was no claim in fact outside of an inference from the acts of the parties and from the instruments, Mickle’s claim must be taken to be according to the legal nature of the instrument. The deed was a quit claim deed that conveyed any interest in the land in the grantor, but nothing more. The joining of the wife did not enlarge any actual claim under the deed. It provided for contingencies only as to there being some estate of inheritance, which the grantee did not claim existed. The actual claim of Mickle, was according to the inferences, of an interest under the lease, just as Matsell senior’s had been, which allowed an action to the owner as soon as the term expired. Bedell v. Shaw, 59 N. Y. 49. In my mind it makes no difference that the lease was void or voidable or valid. In no respect did that alter or expand the actual claim, made by the adverse possession.

After Mickle had been in possession about one year, and in 1858, without any re-conveyance by Mickle of any estate or interest and no re-assignment of the lease, Matsell, senior, went into possession, occupying and controlling them, until 1864, as he had done before he transmitted possession to Mickle.

There is no doubt that he might have then begun a possession adverse to the owner of the fee. To begin it, he had to make some other claim than he had previously made. An equivocal position in this regard, does not begin adverse possession. By reason of the continuity of possession and of claim down to Mickle and the nature of Mickle’s claim, and his going into possession again, without further actual hostile claim, I am of opinion, that it was not proved that he made any other claim than he had formerly made, or than Mickle had made. I wish to repeat that the acts of occupation were as consistent with a claim to a term only as with a claim to the fee, and were of the same nature as those before his assignment of the lease to Mickle.

Thinking that no adverse possession was begun before 1864, the result is that the direction of the court should be sustained and the judgment affirmed with costs.

Freedman and Trttax, JJ. concurred.  