
    James Green and Others, Respondents, v. Charles F. W. Horn, Appellant.
    Third Department,
    November 11, 1908.
    •Real property — adverse possession — deed — when lands included in description — champerty — conveyance of land held adversely.
    Evidence in an action brought to [recover lands examined, and held, to raise a question of fact as to whether the defendant was in actual adverse possession at the time of the conveyance to the plaintiff, and to show that the lands in controversy were included in the defendant’s deed.
    To perfect title by'adverse possession it is not necessary that the true owner had actual notice, or that the claimant asserted his ownership in public in so many words, for a claim of title may be made by acts as well as by assertions.
    All conveyances are presumed to be made with reference to ah actual view of the premises by the parties, and courses, distances and quantities must yield, to natural or artificial monuments or objects named in the description.
    Where a deed includes lands, an original entry thereunder is adverse possession, however groundless the title.
    By virtue of section 225 of the Real Property Law, a deed recorded at a time when another is in adverse possession under a deed is absolutely void.
    Appeal by the defendant, Charles F. W. Horn, from á judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Warren on the 27th day of April, 1908, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 7th day of May, 1908, denying the defendant’s motion for a new trial made upon the minutes.
    The action was brought to recover two parcels of land described in the complaint.
    The defendant by his answer denied that he was in possession of the first parcel. He admitted that he was in possession of the other, but denied that the plaintiffs were the owners and alleged that he was; that he and his grantors had held adversely under color of title, claiming' the property as their own for more than twenty-three years before the commencement of the action. He also alleged that the conveyance under which the plaintiffs claim is void because he was in the actual possession of the premises claiming under a title adverse to the grantor at the time of the delivery thereof. This action was commenced October 20, 1905, and has been twice tried. On the first trial the verdict of the jury was against the plaintiffs and the judgment entered thereon was affirmed by this court on the 14th day of March, 1908. (124 App. Div. 916.) The judgment, was vacated and, a new trial granted upon application of the plaintiffs, under section 1525 of the Code of Civil Procedure. On the second trial the defendant asked to go to "the jury “ On the question of adverse possession and whether the deed to plaintiffs is void under the champerty act; because defendant was in possession of the property claiming it adversely at the, time plaintiffs took the deed.” The request was refused and the defendant excepted. The court thereupon directed a verdict in- favor of the plaintiffs for the possession of the property.
    
      Charles M. Parsons, for the appellant.
    
      J. A. Kellogg, for the respondents.
   Sewell, J.:

The parties to this action claim title through one "William Caldwell, who died May 1, 1848, possessed of a large tract of land, of which the lot in dispute was a part. By a codicil to" his will he devised an undivided one-third to Eliza McGillis, during life; with remainder to her children. The undivided two-thirds he gave to Helen Louisa Parmelee and Catherine E. Van Cortlandt. ■

In August, 1851, an action for the partition of this tract was commenced, and an interlocutory judgment, directing partition and designating commissioners to make the partition, was duly entered. The commissioners made partition by dividing the. property into two parcels, one of which, known as lot 20 of the Garrison ground, containing fifty-six acres, was allotted to Eliza McGillis for and during her life, and the other parcel, known as Fort "William Henry Field, was set off to Catherine E. Van Cortlandt and Helen Louisa Parmelee to be held by them in common,

The commissioners made a report of their proceedings August 31, 1852, and an order confirming the report and directing final judg.ment was entered. The dividing line between the two parcels was the east line of lot 20. This line commenced at a point thirty-four feet west of the west line of the Glens Falls and Lake George planlc road and ran in a southerly direction to the southeast corner of lot 20, which was sixty feet or more west of the plank road. The land in dispute is known as the Waldorf,” and is a part of the space or gore between the east line of -lot 20 and the plank road. On December 24, 1881, Eliza McGillis executed and delivered to Elizabeth G. Horn, the mother of the defendant, a ■ quitclaim deed in which she purported to convey “ All that piece or parcel of land, situate, lying' and being in the town of Caldwell, Warren Co., State of New York, being portion of lot twenty (20) Garrison Ground, beginning at, southeast corner of Steam Mill Lot at a point in the west line of the Glens Falls and Lake George Plank Road, being north 61 degrees and 31 minutes west from the center o± a culvert under said plank road, and running thence west of north five (5) chains thirteen (13) links to the east line of Dieslcau street; thence south three (3) degrees west along the street five (5) chains twenty-five (25) links; thence north eighty-six (86) degrees east four (4) chains twenty-five (25) links to Plank Road; thence north twenty-eight (28) degrees thirty (30) minutes east two (2) chains fifty (50) links, containing one (1) acre twenty-five (25) rods more or less.”

This deed was recorded in the Warren county clerk’s office December 24,. 1881. The defendant claims that it embraces the premises in cpiestion. January 8, 1902, Elizabeth G. Horn by warranty-deed conveyed the same premises, by similar description, to the defendant, and. the deed was recorded April 17, 1902. The plaintiffs claim title through a quitclaim deed from the devisees named in the wills of Helen Louisa Parmelee and Catherine E. Van Cortlandt, made February 1,1905, which includes the land in dispute.

In disposing of the plaintiffs’ motion for a direction of a verdict, the learned trial court said: “ I find nothing here to justify me or-the jury in finding that this possession by defendant was adverse; and I do not think it necessary to send the question of possession to the jury because I regard the possession as peaceable and not adverse.” '

Assuming that the' claim of the defendant and his grantor was not founded upon a written instrument, I am of .the opinion .that there was evidence that they claimed to hold the premises adversely.

' The witness Morris Stanton testified, I do not remember when Mrs. Horn bought there. I remember her claiming ownership there,” and the proof shows many facts and circumstances attending the possession from which a jury might properly conclude that it was adverse. ' '

It is unnecessary to recapitulate these facts dr circumstances in detail. It is sufficient to say that the evidence on the part of the defendant tended to show that the defendant’s grantor entered into the actual possession in 1881, when she received her deed, and thereafter occupied and exercised acts of ownership over it; that her possession was definite, positive, visible and notorious; that she protected it with a real and substantial inclosure, cultivated it, improved it and received all the rents and profits. Her dominion was shown by a great many acts that an owner would exercise over his own property, but not over another’s. The building of the fence, the removal of one building and theei’ection of anothei, were significant acts of adverse possession, and were well calculated to inform the owner both of the fact of possession and the claim of title.

To perfect title by adverse possession it is not necessary that the true owner should have had actual notice, or that the claimant should have asserted in public, in so many words, his claim of ownership. A claim of title may be made by acts as well as assertions. (New York Central & H. R. R. R. Co. v. Brennan, 12 App. Div. 103 ; Barnes v. Light, 116 N. Y. 34.) In the Barnes case it was said that “ Possession accompanied by the usual acts of ownership is presumed to be adverse until shown to be subservient to the title of another.”

However that may be, I think that the premises in controversy are included in the deeds under which the title was claimed.

The description is clear and explicit. The starting point of the first line is a point in the west line of the Glens Falls and Lake George plank road; the third line extends to the plank road, and it appeared by the undisputed evidence of the plaintiffs’ surveyor that the fourth and last course “ would include the property in the gore, and more too.”

Taking into consideration the entire description, I think the conclusion is warranted that the grantor intended to convey to the planlc road. The fact that there was a mistake in' a course or distance is immaterial, as the legal presumption is that all grants and conveyances are made with reference to an actual view of the premises by the parties thereto, as to its state and condition at the time ; that courses and distances and quantities must yield to natural or artificial monuments' or objects; and courses must be varied and distances varied so as to conform to the natural or ascertainable objects or bounds called for by the grant. ( Wendell v. People, 8 Wend. 183.)

If I am- right in the conclusion that the lines given- in tl-ié deed describe the lands in dispute, and' the original entry was under it, the possession was adverse, however groundless the title. (Dé St. Laurent v. Gescheidt, 18 App. Div. 121; Munro v. Merchant, 28 .N. Y. 9; Sands v. Hughes, 53 id. 287.) In the Munromase it was held-that a deed purporting to be executed by virtue of a power of attorney, which was not proved, affords sufficient color of title on which to found adverse possession under the -statute. -

There was also evidence which would have warranted the jury in finding that the deed- to the plaintiffs was void.. If the defendant was in adverse possession under his deed, when they recorded their deed of the premises, it was absolutely void as against the defendant. (Real Prop. Law [Laws of 1896, chap. 547J, § 225 ; Arents v. Long Island R. R. Co., 156 N. Y. 1; Dever v. Hagerty, 169 id. 481.) And whether or not the defendant was in actual possession, holding ad versely under his title -at the time the subsequent deed was made, was a question of fact for the jury. I think that the learned trial court erred in determining that the defendant’s possession was not .adverse,- and that the judgment and order should be- reversed, with costs to abide the# event. ,

All concurred.

Judgment and order reversed and new trial granted, with costs to appellant to abide event.  