
    Mary E. Belcher, Respondent, v. Elizabeth C. Belcher, Appellant.
    Third Department,
    November 10, 1909.
    Beal property — ejectment—defense of champerty—pleading — section 130, Penal Code — fraud on creditors — defense as to purchaser for value.
    In an action of ejectment, the defense that the conveyance to plaintiff was champcrtous under section 225 of the Beal Property Law, providing that a grant of land is void if, at the time of the delivery thereof, the property is in the actual possession of one claiming under a title adverse to that of the grantor, is unavailable to one who makes no claim of title but is simply in possession, without claiming right thereto.
    It is not sufficient for defendant to claim title, but he must claim so tie specific title adverse to that of the grantor.
    Defendant and her husband with plaintiff’s husband occupied a house in 1883 under an agreement with the owners. Plaintiff’s husband entered into a contract to buy the premises, the deed to be delivered in 1894. In 1892 defendant’s husband died and defendant excluded plaintiff’s husband from the premises. The deed was delivered according to the contract. In 1899 the grantor married the plaintiff and conveyed to her.
    
      Held, in an action of ejectment, plaintiff cannot be defeated upon the theory that she was guilty of a crime under section 130 of the Penal Code making it a misdemeanor to buy lands unless the grantor has been in possession or has taken rents for a year before the conveyance, where it does not appear that the plaintiff had knowledge of the facts.
    If the defendant’s husband furnished the consideration, but, because of his embarrassed financial circumstances, the deed was taken by plaintiff’s husband, the fact does not avail the defendant, since it was a fraud on creditors, and plaintiff, for anything that appears, was an innocent purchaser for value.
    
      Appeal by the defendant, Elizabeth C. Belcher, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Broome on the 9th day of November, 1908, upon the decision of the court rendered after a trial at the Broome Trial Term, the jury having been dismissed.
    
      A. D. Wales and A. M. Sperry, for the appellant.
    
      Carver & Deyo [ William B. Carver of counsel], for the respondent.
   Cochrane, J.:

This is an action in ejectment to recover a house which constitutes part of a larger property conveyed by the several deeds hereafter mentioned including the deed to plaintiff. The entire property was formerly owned by Martin Stone at the time of" his death in the year 1876. In 1883 the defendant was living on the property with her husband, Yelles Belcher, and his adopted son, Edward C. Belcher, apparently under some arrangement with the representatives of Stone. In the latter year the executors under the will of Stone by virtue of a power to convey real estate contained in the will executed to said Edward C. Belcher a contract to convey the property, which contract contemplated the execution of the deed in ten years and provided 'that Edward C. Belcher should immediately have possession of the premises. He with Yelles Belcher and the defendant continued to reside there until 1892, when Yelles Belcher died. Thereupon the defendant excluded Edward C. Belcher from the house in question and has ever since continued to hold it adversely. Edward C. Belcher constructed other dwellings on the property. In 1891, pursuant to the contract of sale, the executors of Stone conveyed to him the property. In 1899 he married the plaintiff and in the same year conveyed it to her.

The record- title of plaintiff is complete. Defendant claims neither record title nor title by adverse possession. At the trial, in response to a question by the court, her counsel announced that she claimed to have held the property adversely since the year 1892, that being the year of her husband’s death. He further stated we don’t claim adverse possession ripened into title before this action.”

The court found as a fact in accordance with defendant’s contention that she liad occupied the house exclusively since 1892. She has at no time had or claimed possession of any part of the premises except the house in question. Even if she had claimed and it had been found by the court that she had been in adverse possession since the time of the Stone contract to Edward 0. Belcher in 1883 it would avail her nothing as a claim of title by adverse possession for the reason that this action was begun in 1900, less than twenty years thereafter.

The action is resisted on the ground that the conveyance to plaintiff was cliampertous under section 225 of the Beal Property Law (Laws of 1896, chap. 547), which declares 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.” That defense, however, is unavailable to one who makes no claim of title, but is simply in possession of the property not claiming to be rightfully in possession. It is not sufficient even that he may claim title, but must disclose some specific alleged title that the' court may see that it is adverse to that of the grantor. (Dawley v. Brown, 79 N. Y. 390, 396; Arents v. Long Island R. R. Co., 156 id. 1, 7; Crary v. Goodman, 22 id. 170.)

It is further claimed as a defense that the deed to plaintiff was void under section 130 of the Penal Code, which makes it a misdemeanor for a person to buy or sell land unless the grantor and those under whom he claims have been in possession of the same or of the reversion or remainder or have taken rents or profits for the space of one year before the conveyance. It is sufficient for the purposes of this action to say that before the plaintiff can be found guilty of a crime under that section it must appear that she took her conveyance with knowledge of the facts which bring the case within the condemnation of the statute (Preston v. Hunt, 7 Wend. 53), and there is no evidence that she possessed any such knowledge.

Finally the defendant complains because she was not permitted to prove that her husband furnished the consideration of the conveyance by the Stone executors and that the deed was taken by Edward O. Belcher because of the embarrassed financial circumstances of her husband. If this were a fact it would have been a fraud on the creditors of her husband and unavailable either to him or to her especially as against the plaintiff, who for anything that appears is an innocent purchaser of the property for value.

The judgment is right and should be affirmed, with costs.

Judgment unanimously affirmed, with costs.  