
    Byron Gilman, Appellant, v. Lawrence Dolan, Respondent.
    Second Department,
    July 24, 1906.
    Beal property—ejectment—when verdict that defendant has title warranted by evidence — Beal Property Law, section 225.
    In an action of ejectment a verdict that the defendant has title to the portion of the premises in dispute is warranted by the evidence when, although the defendant’s deed did not refer to the number of the lot, the description by metes and bounds did inclose it, and the defendant, with the plaintiff’s aid, fenced in the disputed portion after purchase.
    
      tymre, as to whether the plaintiff’s title acquired by a subsequent deed from the same grantor was not void under section 225 of the Real Property Law, which provides that a grant is absolutely void if at the time of the delivery thereof the property is in the actual possession of a person claiming title adverse to the grantor,
    
      Appeal by the plaintiff, Byron Gilman, from a judgment of -the County Court of Westchester county in favor of the defendant, entered in the office of the clerk of the county of Westchester on the 15th day of March, 1905, upon the verdict of a jury dismissing the complaint, and also from an order made on the 16th day of February, 1905, denying the plaintiff’s motion for a new trial made upon the minutes.
    
      Nathan P. Bushnell, for the appellant.
    
      Clinton F. Ferris, for the respondent.
   Hirschberg, P. J.:

This is an action of ejectment, the dispute being as to the ownership of a portion of a lot known as Ho. 60, on a map entitled “Map of Henry Park, Section,” at Buchanan, in Westchester county. The title of botli parties is derived from the same grantor, one David J. Tate. He deeded to the defendant on August 3, 1899, a number of lots, designating them in the deed by numbers and by particular description, as exclusive of lot Ho. 60, but running the metes, bounds and measurements so as to include and take in that part of lot Ho. 60 which the plaintiff now claims. It is undisputed that the defendant immediately inclosed the property, including the part of lot Ho. 60 now in question by the construction of a fence, and that he has ever since continued to occupy it under a claim of ownership founded upon the deed. There is evidence from which the jury would be entitled to conclude that this was done with the concurrence and consent of his grantor and in conformity with the actual intention of the parties at the time of the execution of the conveyance.

The defendant testified further that the plaintiff assisted him in making the measurements from the deed, and the plaintiff himself admitted that he knew of the defendant’s act in fencing the land in at the time it occurred.

The plaintiff procured a deed from Tate on the 20th day of April, 1901. lie claims that this deed includes that portion of lot Ho. 60 of which the defendant has possession, and it is to eject the latter from that portion of such lot that this action has been brought.

, I think that section 225 of the Real Property Law (Laws of 1896, chap. 547) is conclusive of this appeal. It provides that a grant of real property is absolutely void, if at the time of the delivery thereof such property is in the actual possession of a person claiming under a title adverse to that of the grantor. But whether this be so or not, the case was submitted to the jury fairly, and their decision that the defendant in fact purchased all the land which he inclosed, being supported by sufficient evidence, should not be disturbed.

The judgment and order should be affirmed.

Hooker, Gaynor, Rich and Miller, JJ., concurred. "

Judgment and order of the County Court of Westchester county affirmed, with costs.  