
    Catharine E. Sheridan, Suing in the Names of Emily Adams and Claudina Post, Her Grantors, Appellant, Respondent, v. Charles Cardwell, Respondent, Appellant.
    Second Department,
    December 30, 1910.
    Ejectment — burden of proof — evidence — deed without proof of contemporaneous possession of grantor — when proof of possession necessary — action in name of plaintiff’s grantor — conditions precedent — adverse possession — champerty and maintenance., -
    A plaintiffin ejectment must recover, if at all, upon the strength of his own title, not upon the weakness of the defendant’s title.
    A plaintiff in an action of ejectment may put in evidence a deed to his predecessor in title without proof of contemporaneous possession by the grantor, hut it is not sufficient evidence to establish the grantor’s title without showing subsequent possession by him or by the persons through whom lie took title.
    A paper title is insufficient unless traced back either to the sovereign or to some one admitted or proved to have been a common source of the titles, claimed by both parties. In other cases, in addition to the paper title, possession must be . proved in some one through whom the plaintiff claimed. Hence,, where a plaintiff fails to prove seizin on possession within twenty years in. herself or her predecessors in title, she is not entitled to recover.'
    In order for a plaintiff to bring an action of ejectment in the name of her grantor pursuant to section 1501 of the Code of Civil Procedure, the conveyance under which she claims must be void because the property was held adversely to the grantor. Such deed is void only when the lands are in the possession of a person claiming under a title adverse to that of the grantor at the time of the delivery.
    It appears that the' only title the defendant’s predecessor could convey was a right of possession under a tax lease; a deed to the plaintiff conveyed the title her grantors possessed subject to the defendant’s right of possession under the tax leases It follows that the conveyance under which the plaintiff claims is not void because of the fact tiiat the property was held adversely to her grantor, and she cannot maintain ejectment in their names.
    It is not shown that, the defendant in ejectment lacks right of possession because some tax leases upon which his possession is based are void, if he havé a right of possession under other tax leases.
    Cross-appeals by the plaintiff, Catharine E. Sheridan, suing, etc., and tile defendant, Charles Cardwell, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Queens on the 17th day of March, 1910, directing a new trial, the defendant’s appeal being from the whole of said order and the plaintiff's from a part thereof.
    
      Edward R. Olark [Stephen II. Voris with him on the brief], for the plaintiff.
    
      Robert B. Honey-man, for the defendant.
   Rich, J.:

At the close of the evidence in this action in ejectment, the court directed a verdict for the defendant. ■ Plaintiff’s motion to vacate and set the verdict aside and for a new trial was subsequently granted, and from the order accordingly entered both parties appeal. The learned trial justice in his opinion says that he directed a verdict for the defendant subject to the opinion of the court, and he bases his action on the assumption that he erroneously excluded evidence offered by the plaintiff tending to avoid a deed to the defendant. It appears from the record that at the close of the evidence counsel for both parties aslced for the direction of a verdict, waiving the right to go to the jury upon any question of fact, and that the court thereupon said to the jury: “ Gentlemen of the jury, under the direction of the Court you will find a verdict for the defendant.” It further appears that the plaintiff, in rebuttal, recalled one of the grantors in the deed to which the court referred, and asked: “ Q. Will you tell us under what circumstances you saw the defendant, Mr. Cardwell ? By Mr. Honeyman: Objected to as not in rebuttal. By Mr. Schoonmaker: Our contention is that these deeds were obtained from Mrs. Adams and Mrs. Post by trickery, by false suggestions of fact, by false statements of fact, and by duress and undue influence brought to bear upon them, and were without adequate consideration. The Court: I shall exclude evidence as to inadequacy, not excluding any evidence that the deed is regularly and formally acknowledged. I understand there is no question about its regularity.” The plaintiff excepted and rested her case, but the court did not exclude evidence of fraud, duress or undue influence. The exceptions, however, present for our consideration the question as to whether the learned trial justice erred in making the disposition of these motions.

The action is brought by the plaintiff under the provisions of section 1501 of the Code of Civil Procedure, in the names of her grantors, for the alleged reason that the defendant was in possession of the premises and claiming title thereto. To establish her cause of action the plaintiff introduced in evidence : First, a deed from William T. Cogswell to Lawrence Y.-Husted describing the property set forth in the complaint, dated December 1, 1853 ; second, proved the death of - Lawrence V. Husted in 1859 or 1860 intestate, leaving three daughters and one son (the-latter of whom has since died unmarried, intestate and without surviving issue) third, quitclaim deeds from two of the surviving daughters of Lawrence Y. Husted, one dated October 15, 1907, the other November 2, 1907, purporting to convey the interest of the grantors in the property described in the complaint; fourth, a tax lease for 10,000 years from the county treasurer of Queens county to John Canning, defendant’s predecessor in interest, dated August TO, 1884, describ-' ing a portion of the premises involved; fifth, a tax lease for 10,000 yéars from the same county treasurer to said Canning of an additional portion of the involved premises, the two covering the whole thereof; sixth, deeds from Canning to defendant conveying'- all of his right, title and interest in and to the land described in such tax leases; seventh, assessment rolls of.the town of Jamaica, in which town the property in question was situate, for the years 1880 and 1884, tending to show the invalidity of the assessment of the land in question for those years because of its being assessed to “Husted; Lawrence.Y., heirs,” and not to the owners as non-residents, it being proven that neither Lawrence Y. Husted nor . either of his heirs ever resided in the town of .Jamaica; and after, calling attention to defendant’s admission of actual adverse possession of the premises, rested her case. The defendant then moved to dismiss the case on the ground, among others, that the plaintiff had not shown possession at any time within the last twenty years; had not shown color of- title or ownership of the property in question. The motion was denied arid an exception taken.

It appears from evidence introduced by defendant that as early as 1877 said John Canning had been in the actual possession of the premises under tax leases for 10,000 years, and that such possession . had been continuous and uninterrupted by him and his grantee, the defendant, since that time. He testifies that he bought the lots at tax sales a number of times before he received a tax lease, and was in possession under such purchases when the two tax leases introduced in evidence by the plaintiff were given ; that he received tax leases other than those introduced in evidence, under which he was given the right of possession; that defendant took possession under his conveyances from Canning in February, 1900, and that on January 1, 1910, he took from Emily. Adams and Claudina Post, plaintiff’s grantors, a quitclaim deed of the premises, which he pleaded by supplemental answer.

There is no evidence showing- any title in Cogswell whén he conveyed or assumed to convey the property to Husted, and no evidence of possession or exercise of any act of ownership by either Cogswell, Husted, the heirs of the latter, or the plaintiff, at any time, with the exception of the conveyances in evidence.

The plaintiff must recover,- if at all, upon the strength of her own title, and not upon the weakness of defendant’s. The deed from Cogswell to Husted was admissible in evidence without proof of contemporaneous possession of the grantor, but it was not sufficient evidence to-establish title in the plaintiff’s grantors without showing subsequent possession by them or their deceased father, through whom they derived whatever rights -they had in the property. (Greenleaf v. Brooklyn, Flatbush & Coney Island R. R. Co., 132 N. Y. 408.) As was said by Mr. Justice Burr in Aubuchon v. New York, New Haven & Hartford R. R. Co., 137 App. Div. 834), a very similar case: . “ In an action of ejectment it is not enough to prove a paper title to the disputed premises, unless that title is traced back either to the sovereign or to some one admitted or proved to have been a common source of the title claimed by both plaintiff and defendant. In other cases, in addition to the paper title, possession must be proved in some one through whom plaintiff claims. * * * 6 Where a party is under the necessity of proving title, it is not enough to simply produce a deed ; he must show possession in the grantor, or possession accompanying the deed; without this he proves no title.’ ’■’ The plaintiff proved neither seizin nor possession within twenty years in herself, or in either of her predecessors in title, and was not entitled to recover. (Code Civ. Proc. § 365.)

There are two other views of this case, each leading to the . same result. The section'of .the Code under, which plaintiffs action-is-brought provides a condition precedent to the right of a grantee to maintain an action in the name of his- grantor, viz,, the conveyance under which lie' claims-iniist be void because the property conveyed was held adversely to the grantor. Such a deed.is void only when the lands are- at the time of the delivery in the actual possession of a person claiming under a title adverse to that of the grantor. (1 B. S. 739, § 147; Beal Prop. Law [Gen. Laws, chap. 46 ; Laws of 1896, chap. .547], §' 225 ; now Beal Prop. Law [Consol. Laws, chap. 50 ; Laws of 1909, chap. 5-2], § 260, as amd: by Laws of 1909, chap. 481, and Laws of 1910, chap. 628.) These facts the plaintiff must establish to entitle her to maintain this action. Not only did. she fail to do so, but it appears from the evidence of the defendant’s predecessor -in title that the only right he had in the land, and con-' - sequently the only right he could convey- to the defendant, was the right of possession under a tax lease. Canning acquired no title by the delivery of the tax leases to him or by his-possession, thereunder, nor did the defendant. The deed to plaintiff, therefore, conveyed whatever title her grantors possessed,. subject to the defendant’s right of possession under the tax leases. For.this reason the rule invoiced by the defendant (Dever v. Hagerty, 169 N. Y. 481) has no application, Finally, the plaintiff’s contention that she .has established that the defendant had no right to the possession of tlie premises because the tax leases upon which such right rested .were-void, rests upon the assumption that the defendant’s right of possession is based wholly upon the two tax leases. 'This assumption is incorrect, as defendant’s grantor testified that he had other tax leases. The defendant’s right of possession resting' upon several tax leases,. the plaintiff does not by showing the invalidity of two establish-'-, that he had no right of possession., ■

As these conclusion's require the reversal of the order it is unnecessary to consider' the other questions presented by the-defendant.

. The order setting aside the verdict -in favor of the defendant is ■reversed, and the judgment directed for the defendant affirmed.

Hirschberg, P. J., Woodward and Jenks, JJ., concurred; Thomas,. J., concurred in separate memorandum: .

Thomas, J.

(concurring):

In 1853 Cogswell conveyed the land to Husted, who died about 1859, leaving four children, one of whom, a son, thereafter died, whereby his interest vested in his three daughters, now Post and Adams, who in 1907, conveyed to Sheridan by deed, recorded January 25, 1907. He claims under such deed two-thirds of the land, and brings this action for possession thereof in the name of his grantors, alleging that the defendant is in possession, claiming under tax leases. The defendant, after certain admissions and denials, answers that under the' statutes the deed from Adams and Post is void, ■ “ having been made by ” them to Sheridan while “ defendant was in actual possession of said premises claiming under a title adverse to that of” such grantors, and that, as is the fact, since the action was begun Adams and Post conveyed to the defendant. For a separate defense defendant states that in 1884-John Canning duly obtained a tax lease from the county treasurer for 10,000 years of a portion of the premises, and entered into pos- . session, and that after “ divers conveyance, and in or about the year 1898, title to said premises became vested in said defendant, who entered into possession thereof and has continued in possession ever since and that about the month of October, 1887, Mrs. John Canning obtained a similar lease of a ¡portion of the premises, and that she entered into possession, and that after divers conveyance the title vested in, the defendant and that he entered into possession and continues it. The defendant further alleges that the plaintiff or any of her predecessors have not been possessed of the premises within twenty years last passed before the commencement of the action, and that the defendant and his grantors have been in undisturbed possession thereof, claiming .absolute title to and right to possession of said lands, and such possession has been open, visible, continuous, unbroken and adverse for more than twenty years prior to the commencement of the action. As I understand his position, defendant contends (1) that plaintiff cannot sué in her grantors’ names as their deeds were delivered in violation of the statute and are void, as he was in possession under an adverse title; (2) that the plaintiff has not shown title in Cogswell or possession by him or his successors at any time,, much less within twenty years; (3) that defendant has the right to possession under tax leases and the title and right to possession by adverse possession. As indicated, the answer states the very fact that would enable the plaintiff to bring the a'ction in the name of -her grantors, and his attitude is consistent through the trial. When .the plaintiff rested, the objection to the-party plaintiff was not made, while his motion for a verdict is upon the ground, among others, that “ the plaintiff’s deeds from her grantors are void under the Statutes.” The very fact that lie assumes in his motion enables the action to be' brought pursuant, to section 1501'of the Code of Civil Procedure. It is quite late at this time to present the objection.

It is necessary to scrutinize the defendant’s holding. The.answer states that he had two leases received by Canning or Mrs. Canning from the county treasurer in 1884 or 1887. Canning’s evidence shows that lie-bought the lots a number of. times before he received a tax lease. He thinks he was in possession before lie received the leases. He did what he did do in the way of cultivating, fencing, building and as he says, the leases “ ought to show how long I have had them.” He. was asked what right he had to move on the place and he answered : The right was I had a tax claim on it. I' had a lease, tax lease. - I don’t mean these two1 leases here that I sold to •Mr. Cardwell. I had others; I had other tax leases.” A study of his further examination shows that he had no knowledge of actual leases except the two of 1884 or 1887, and he sold to the defendant by assigning these -leases. They were then the basis of his holding. The defendant took possession in 1900. Canning says: “ I knew I had a tax title to it, and I sold it; that was enough for me.” How,, then, can it be urged that Canning had title by&d'verse possession ; that he was holding adversely to the plaintiff and predecessors and also to the source of his tax title. Is it not plain that there is no title by adverse possession even claimed by Canning ? The defendant hashad possession only since 1900. So he makes no title by adverse possession. But Canning held under the tax leases executed by the county treasurer, who carved from the estate of some persons taxed, this leasehold, as the statute enabled. him to do. Both tax deeds show that such persons were the “ heirs of Lawrence- V. Husted,” as do the assignments. So defendant and Sheridan (virtual plaintiff) have title from the same person, and defendant’s leasehold is carved out of the heirs’ fee, and defendant asserts a right to hold by the attempted exercise "of a power given to the county treasurer to create a leasehold out of their fee. . Defendant holds then in subjection to the plaintiff’s title. In other words, defendant’s lease flows from the heirs’ title, and in view of failure to claim adversely to it, the defendant, so far as the evidence shows, can claim under no other title. So then defendant’s possession has been the possession.of the owner of the fee, and if the action were dependent on a breach on the part of the lessee, it would not be necessary for the plaintiff to show possession within twenty years or at any time. Otherwise after twenty years the lessee could always invoke section 365 of the Code. But the question is whether the owner of the fee can invoke this doctrine in the present action. I think that he cannot assert that the lease flowed from the heirs to avoid the twenty years’ statute and proof of possession, and then reverse his position and assert that there was no valid lease. I conclude that Sheridan has not traced her title to the original patentee, or to any predecessor in possession, nor was she or any'under whom she claims seized as required by section 365 of the Code.

The order setting- aside the verdict should be reversed and the judgment reinstated, and the order denying plaintiff’s. motion for judgment should be affirmed.

Order setting aside verdict and directing a new trial reversed, with costs, and order denying plaintiff’s motion for judgment affirmed, with costs.  