
    Caleb Tarplee, Respondent, v. Isaac H. Sonn, Appellant.
    Fourth Department,
    November, 1905.
    Adverse possession under sheriff’s deed conveying no legal title—possession of cotenant may be adverse to other cotenants — when record of deed not necessary to an adverse possession founded thereon.
    When a person having already a title to an undivided two-thirds interest in real estate, purchases her cotenant’s undivided one-third interest on execution, and for over twenty years claims title to the whole premises, the sheriff’s deed on such execution is sufficient to support such adverse possession to the whole property against a grantee and his successors in title claiming under a sale on a prior execution against said .cotenant. This is so, though the second deed conveyed no legal title.
    
      Though the óne-third interest purchased be that Of a cotenant, the possession of the purchaser may be in hostility to the title of other cotenants if such-possession be adverse and exclusive. . ,
    Though the deed on the second execution was not recorded for some years, it was incumbent on the purchaser under the first execution to contest the second purchaser’s claim- of title', for such sheriff’s sale is public' and' after due notice.
    Appeal, by the defendant, Isaac H, Sonn, from a judgment of the „ Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Wyoming on the 17th day of March, 1905, upon the report of a referee '
    
      Morris A. Lovejoy, for the appellant.
    
      Irving G. Botsford, for the respondent.
   Spring, J.:

John Terry died intestate prior to May 28, 1863, seized in fee of the premises described in" the complaint' and- leaving him surviving .his widow and one son, John H. Terry, On May 28, 1863, the son conveyed tó his mother an undivided two-thirds of said premises during her natural life, and, in the event she survived him, her title waste become absolute. John H. Terry,, therefore, owned in fee an undivided one-third of the premises subject to an unassigned dower interest of. his mother in the entire farm, and in case he survived his mother his ownership would extend to fhe entire prem-. ises. His mother had 'a life estate in twoJhirds thereof which matured in a freehold title upon the death of her son in 1898..

Judgments were recovered, against-John H. Terry and executions were issued and his interest sold- by virtue thereof, and in January; 1873, the sheriff executed a deed to Stephen' Ó. Barnum conveying to him the interest of John H. Terry in said premises. In June of that year Barnum conveyed to one Winegar, and the defendant’s title is derived from. Winegar.' The plaintiff acquired his title in 1900" by warranty deed from Mrs. Lent and all -these deeds were recorded shortly after they were respectively executed. There were-irregularities in the sheriff’s sale or antecedent to it, but we will assume that the sale and consequent. deed transferred to Barnum the interest in the’premises possessed by the judgment debtor, Terry. .

In 1873 Winegar commenced an action for the partition, of the lands and premises against Mrs. Lent.: In her answer, which was verified in December, 1873, she impeached the validity of the salé under the execution, and then interposed the affirmative defense of adverse possession. That action has never been tried. It is asserted that because she claimed to be the owner of the premises as an adverse occupant, Winegar was apprised of her claim, and, having allowed that demand to slumber unassailed for more than twenty years, it is too late for him now to maintain that she was occupying solely as life tenant and doweress.

We do not give quite the scope to this position claimed for it by the counsel for the respondent. When Mrs. Tent interposed the defense of adverse possession, concededly there was no muniment of title on which to found her claim. She was in possession by virtue of the deed from her son, possibly claiming also because of her unadmeasured dower right. If Winegar, appreciating that he was put upon inquiry to ascertain the validity of her claim, had made the mtist thorough investigation available, he would have discovered nothing upon which her assertion of title by adverse possession could vest. At that time, in an action of partition, controverted questions of title could not be tried as is how permissible. (Code Civ. Proc. § 1543; Satterlee v. Kobbe, 173 N. Y. 91,95; Weston v. Stoddard, 137 id. 119.)

The interposition of the hostile title, therefore, ousted .the court of jurisdiction, and the action of partition was never tried. It did apprise Winegar that Mrs. Lent was not relying exclusively upon her record title, and there are one or two other suggestions pertaining to the defense of more or less significance to which we will, allude later on.

Mrs. Lent, in 1873, obtained a judgment .in the Supreme Court against her son John, and a sale of his interest in these premises by the sheriff pursuant to an execution on this judgment was had in August, 1874, at which she bid off the premises, and in February, 1876, she obtained the usual sheriff’s deed, purporting to convey to her all the interest of the judgment debtor in the premises. It will be noted' that this sale and deed were subsequent ■ to the verification of the answer in the partition action.

Mrs. Lent continued in the undisputed possession of the whole of said premises until she conveyed the same to the plaintiff who has since continued in like occupancy thereof.. Mrs. Lent had no title to the undivided one-third of said premises except such as she acquired by this sheriff’s deed. It is only that one-third which is involved in this case, for her ownership of the undivided two-thirds is unquestioned.

She founds her claim of adverse possession upon this sheriff’s deed. We may assume that she acquired'no legal title by the deed and concede that Barnum, by the prior execution sale and deed, became vested with all the interest of John H. Terry in the premises. It was sufficient, even though actually conveying nothing whatever, to found a tangible successful claim of adverse possession if such possession continued sufficiently long to ripen into an absolute title.

It is conceded that her physical possession and that of her grantee embraced the entire farm. She was not holding in- subordination to her title as purchaser from her son. Her answer in the partition action indicates that she was not resting wholly upon that title. She knew Winegar claimed to own this disputed one-third; She purchased the interest of her son at the sheriff’s sale, paying over $2,000 therefor, apparently to test the validity of Winegar’s title or to protect herself against it. In the event of her success in that venture her own title to the whole farm would be assured. But Winegar made no move. He allowed her and the plaintiff to continue her occupancy without interference for thirty years, and ¡then his grantee was not the attacking party, but defends when the contrary claims are sought to be determined and quieted. '

It is well settled that one tenant in common may assert an adverse title against his cotenant if only it be adversé and tó the exclusion of the cotenant. (Florence v. Hopkins, 46 N. Y. 182; Sweetland v. Buell, 164 id. 541; Zapf v. Carter, 70 App. Div. 395.)

To sustain the judgment, we are not obliged to go to the extent of invoking the rule just adverted to. There were two deeds covering the same interest .in the premises and inevitably they must erect titles in hostility to each other. Each deed could not convey a valid effective title.

Mrs. Lent’s deed was not recorded until 1898, and it is urged that Winegar or his successor knew nothing of its existence. The sale was publicly made by the sheriff after the publication of the requisite notice. Passing that/ however, the record of the deed was not essential to the acquirement of title under it by holding adversely.

If Winegar desired to question Mrs. Lent’s ownership, it was incumbent upon, him to ascertain by what right she was claiming. The rule which often obtains, that where a tenant in common purchases an outstanding title it must inure to the benefit of all the co-owners, does not apply to this case. From the outset Mrs. Lent denied the title of Winegar.. She permitted no joint possession, no recognition of his interest, but on the contrary at the only time he ever asserted ownership she disputed his claim. The rule mentioned is merely one of presumption and is a corollary to the proposition that the possession of one tenant is assumed to be that of his cotenants. If the facts denote that the possession was hostile to the other owners instead of in harmony, with them, the presumption is overthrown. (Cases cited.)

The rule is thus expressed in Wood on Limitations (Vol. 2 [2d ed.], § 266): Prima facie, the possession of one tenant in common is the possession of all * * *. But if one tenant in common enters upon the whole land, and takes the entire profits, claiming and holding exclusively for the full statutory period, an actual ouster of his co-tenants-may he presumed.”

Nor do wé subscribe to the argument of counsel for the appellant that Winegar or his grantee was unable to assert his title as against Mrs. Lent during all this time. ' She had no claim to the undivided one-tliird owned by her son, except such as she acquired by the sheriff’s' deed. He conveyed to her only two-thirds, and her dower was unadmeasured' and gave her iro right to retain this one-third, which is the only portion ever in dispute. Winegar could have maintained an action of ejectment to recover possession of this one-third as- soon as she disputed his title. If she had recognized his cotenancy, partition would have been proper. When she challenged his title or interest, he should have endeavored to establish its validityat once, The moment that right was available to him, her possession became adverse.

We think the judgment should be affirmed, .with costs.

All concurred.

Judgment affirmed, with costs.  