
    Eliza Abrams, Resp’t, v. Frank Rhoner, App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed May 13, 1887.)
    
    1. Specific performance of contract for purchase of land—When
    decreed—Title by adverse possession Where the title by adverse possession is so clear that the court should direct a jury to find such title, the court will compel a specific performance of a contract where the vendor can give such a title.
    2. Same—Presumption as to delivery of deed of reconveyance.
    One Bayard was the owner of the premises in question on December 20, 1771, and upon that day conveyed them to Livingston and others. In 1797, it appears the same Bayard conveyed the same premises to Houston and wife and others; that the plaintiff derived her title through mense conveyances to her father, who went into possession of the premises in 1820, under an assessment lease, and continued under a deed dated 1834, and that the plaintiff and her grantors had been in the actual possession of the premises from the date of the deed from said Bayard in 1797 to the making of the contract for the sale of said land, to enforce which tins action is brought. It also appeared that neither of the grantees under the deed of 1771, nor any of their heirs, had ever been in possession or made any claim to the premises in question, nor any portion thereof, and that no conveyance by the grantees under the said deed of 1771, or any one of them was ever found or heard of. Held, that the presumption was conclusive that the grantees named in that deed mus t have reconveyed to Bayard before he conveyed in 1797, or that the conveyance of 1771 never had an operative delivery to the grantees named therein,
    3. Adverse possession—What constitutes.
    To constitute an adverse possession, it is not necessary that the title or deed under which the claim is made is rightful; the party need not produce and prove the deed under which he claims, and if when produced it is defective, it will not destroy the effect of the party’s possession.
    4. Same—Tenant in common may acquire—How acquired.
    One tenant in common may acquire the title of another tenant in common by adverse possession. An ouster will be presumed after an exclusive possession and receipt of the entire profits, with a claim of right to the whole thereof for twenty-one years.
    
      Julius Heidermer, att’y ; James C. De La Mare, counsel for resp’t; Thomas J. McKee, att’y; Stephen Pfiel, counsel.
   Potter, J.

This an appeal from, a judgment entered upon the report of a referee appointed to hear and determine the issues in the action.

The action was brought to compel the specific performance of a contract made between the plaintiff and defendant on or about the 5th day of December, 1884, for the conveyance in fee simple by plaintiff to the defendant, on or about the 29th of December, 1884, of certain premises in the city of New York, and known and designated as 139 Mulberry street, in consideration of the sum of thirteen thousand and five hundred dollars, thirteen hundred of which was to be paid upon the making of the contract, and the residue on the delivery of the deed.

The plaintiff alleged and proved that she was ready and willing to convey, and that she tendered a proper conveyance to the defendant, and demands the payment of the balance of the consideration at the specified time and placé and the defendant refused to accept the same, or to pay the balance of the consideration.

The defendant contends that the plaintiff had not at that time the ability to convey such title as the contract called for, and that the title that she could convey was not a marketable title.

The defendant under the contract to convey is entitled to a marketable title. Shriver v. Shriver, 86 N. Y., 575.

Is the plaintiff’s title defective to the degree that renders it unmarketable ? The plaintiff’s title rests upon proof of a conveyance from Nicholas Bayard, dated December, 1797, to several parties, and by mesne conveyances from the grantees in said deed, and upon an adverse possession thereunder for about one hundred years.

The defects in plaintiff’s title as specified and insisted upon by defendant, are that Nicholas Bayard, the grantor of the premises in the deed above mentioned, and under which the plaintiff claims to derive her title, had by a previous deed, dated in 1771, conveyed the premises in question to others than the grantees in the deed of 1797, and that there is no proof of any conveyance of the premises by the grantee in the deed of 1771, back to the grantor Nicholas Bayard; that one of the deeds forming the chain of title from grantees under the deed of 1797, and through which plaintiff claims title, viz.: the deed to Albert I. Terhune from McIntosh and wife, was not sufficiently proved, owing to a defect in the certificate of acknowledgment, and that the possession of the plaintiff and her grantors, some of the essentials of such adverse possession as constitutes a marketable title.

Assuming the referee had found or ought to have found, that Nicholas Bayard was the owner of the premises in question on the 20th of December, 1771, and that upon that day he conveyed them to Philip Livingston and others, there is the undisputed evidence and the fact is found by the referee, that in 1727 the same Nicholas Bayard conveyed these premises to William Houston and Mary, his wife, and others, the grantees being the daughters of said Nicholas, and the husbands of the two daughters that were then married, and that the plaintiff derives her title through conveyances to her father, who went into the possession of the premises in 1820 under an assessment lease and continued under a deed dated 1834, and that the plaintiff and her grantors have been in the actual possession of the premises from the date of the deed from said Bayard, dated in December, 1797, to the time of making the contract in question; that neither of the grantees under the deed of 1771, nor any of their heirs had ever been in possession or make any claim to the premises in question nor any portion "thereof and that no conveyance by the grantees under the said deed of 1771, or any one of them was ever found or ever heard of, the presumption must be conclusive, that the grantees named in that deed must have re-conveyed to Nicholas Bayard before he conveyed to his daughters and their husbands in 1797, or that the conveyance of 1771, never had an operative delivery to the grantees named therein. Woolsey v. Morss (19 Hun, 273), and the numerous cases it referred to in the opinion in that case. Jackson v. McCall, 10 Johns., 377; Jackson v. Moore, 13 id., 510; Ottinger v. Strasburger, 33 Hun, 466.

But aside from this presumption the plaintiff established a title- by adverse possession. These premises have been held by plaintiff and her grantors under claim of title fortified by conveyances to the parties occupying, and in the absence of any hostile claim, practically from the date of the deed from Nicholas Bayard in 1797 to the date of the commencement of this action.

Where the title by adverse possession is so clear that the court should direct a jury to find such title, the court will compel a specific performance of a contract, where the vendor can give such a title.

Ottinger v. Strasburger (supra), and the same case affirmed in 102 N. Y., 692. Shriver v. Shriver, 86 N. Y., 575.

We do not think any point is made in favor of the defendant by the overruling of the objection to the introduction of the deed from McIntosh and wife to Terhune on the ground of its defective acknowledgement and proof.

If the referee had ruled to the contrary and excluded the-deed it would have left the plaintiff and her grantors holding title to four-fifths of the premises by adverse possession from the date of the deed in 1797, by Nicholas Bayard to-Mrs. McIntosh formerly Eliza Bayard, or it would have left the plaintiff’s title to stand upon this case; that plaintiff' had acquired the title of all the grantees under the deed of 1797, except Eliza McIntosh and to have been a tenant in common with her and then to have acquired her title by adverse possession; for one tenant in common may acquire the title of another tenant in common by adverse possession. An ouster will be presumed after an exclusive possession and receipt of the entire profits with a claim of right to the whole thereof for twenty-one years. Florence v. Hopkins (46 N. Y., 133); Woolsey v. Morss (19 Hun, 374), and cases there cited.

But the deed was properly received as evidence for the purpose of showing the plaintiff entered and occupied the share of the premises deeded by Nicholas Bayard to Eliza. McIntosh under a claim of title from her and her husband. To constitute an adverse possession it is not necessary that the title or deed under which the claim is made is rightful; the party need" not produce and prove the deed under which he claims and if when produced, it is defective as a deed, as for want of - a seal or otherwise, it will not destroy the effect of the party’s possession. Bradstreet v. Clarke (12 Wend., 674), and cases cited.

An illustration of this principle is shown in conveyances by a pretended agent or attorney. If the power to convey did not exist in fact or was a forgery yet it is insufficient to give color to the grantees claim of title and stands upon the same footing as a genuine deed or a deed under a valid power. Id.

The grantee in the deed from McIntosh and wife was in possession in 1834 and gave to said McIntosh a mortgage to secure the purchase money of the portion of the premises purporting to be conveyed by McIntosh and wife to him and which mortgage was afterwards paid and satisfied.

This afforded proof at least by way of admission and recognition that McIntosh and wife had parted with whatever title they ever had when they accepted a mortgage from Terhune as the mortgagor and owner, to secure the purchase of premises formerly owned by McIntosh and his wife, and would conclude their heirs and their privies, and form at least the beginning of an adverse possession good against all persons, from the date of the mortgage as well as before. Terhune and his wife and children including the plaintiff had occupied the premises until the commencement and trial of the action.

Under the facts of this case we have not thought it necessary to examine whether the certificate of the proof of the execution of the deed from McIntosh and wife was strictly in conformity to the statute at the date thereof.

Under the circumstances of this case, if such proof was necessary the court would allow a liberal construction of the certificate. West Point Iron Co. v. Reymert (45 N. Y., 703); Canandarqua Academy v. McKechnie, and cases cited.

Judgment should be affirmed, with costs.

Van Brunt, P. J., and Lawrence, J., concur  