
    Moritz Berkowitz et al., Pl’ffs, v. Ignatz Brown, Def’t.
    
      (New York Common Pleas, Equity Term,
    
    
      Filed February 27, 1893.)
    
    1. Husband and wife—Conveyances between, prior to 1887—Title.
    In 1858 a married woman attempted to convey mortgaged premises by deed directly to her husband. Held, that such deed was void and upon her death intestate the title descended to her heirs at law, notwithstanding the deed, and that the rights of certain of said heirs who were not made parties to a subsequent suit to foreclose the mortgage were valid and existing in the property.
    2. Judgment—Presumption as to service op process.
    The presumption is that a court would not have rendered a judgment except upon due proof of the service of process, and such presumption is strengthened by a recital in the judgment ‘ ‘ upon reading and filing due proof of the service of the summons and complaint.” Jurisdiction will he presumed unless want of sufficient service of process either affirmatively appear from the judgment roll or be established in an action or proceeding impugning the judgment.
    3. Adverse possession—Husband and wipe.
    Adverse possession of the premises above referred to by the husband against the wife is not predicable of his residence therein with her after the attempted conveyance to him.
    
      4. Same.
    ■ Title hy adverse possession cannot be made out hy “tacking” a period of possession after tike wife’s death by the husband and those claiming under his alleged title, and a, subsequent period of possession by the purchaser at the foreclosure sale and his grantees.
    Action by vendors against vendee for specific performance of an agreement for the sale and exchange of real property.
    A. H. Berrick, for pl’ffs; A. Stern, for def't.
   Bischoff, J.

Plaintiffs agreed with defendant to convey to him their premises, 114 Willett street, in the city of New York, in exchange for his premises, 102 Columbia street. At the time appointed for the exchange of deeds, defendant refused to accept the one tendered him by plaintiffs, on the ground that it did not assure a marketable title, and thereupon plaintiffs brought this action for specific performance of the agreement.

On April 1, 1849, Catharine Wirth joined her husband, Jacob Wirth, in the execution of a mortgage to Samuel Leach upon the Willett street premises to secure the payment of $3,500. On June 25, 1858, it is conceded, Catharine Wirth was seized of the premises in fee, and by deed of that date she attempted to convey them directly to her husband. She died in June,. 1867, intestate, and without issue, leaving her surviving her husband, said Jacob Wirth, and five sisters and four brothers, Catharine Lafore or Lafour, Phillipina Blaut, Elizabeth Miller, Caroline Gfettell or Guttel, Anna Maria Scliier, Philip Geib, Nicholas Geib, Adam Geib and Peter Geib, her only heirs at law. The marital relations of Catharine and Jacob Wirth appear to have been continuous up to the time of her death, and for fourteen years immediately preceding the last mentioned event they resided together upon the' premises in question. No issue appears to have been born of their, marriage at any time.

Upon his wife’s death Jacob Wirth continued in possession until some time in 1870, when he purported to convey the premises to Philip Geib, a brother and one of the heirs at law of his deceased wife, by deed duly executed for such purpose. Philip Geib assumed possession under the deed to him, and so continued until the time of his death. In 1873 or 1874, Philip Geib also died intestate and left surviving Phillipine, his widow, and five children, Philip, Catharine, Jacob, Charles Peter and Louisa, his only heirs at law, who continued in possession of the premises until October, t1877. In May, 1877, Silas Davis, to whom the mortgage of Catharine and Jacob Wirth to Samuel Leach had been assigned,, commenced an action in the supreme court to foreclose it. At this, time all of the heirs at law of Catharine Wirth, except Philip Geib, and the heirs at law of the latter, his five children, were; surviving, two of such children and heirs at law of Philip Geib,, Charles Peter and Louisa Geib, being then infants finder the age of fourteen years. Jacob Wirth, the husband of Catharine Wirth, Phillipine Geib, the widow of Philip Geib, and all the surviving heirs at law of Catharine Wirth, except Phillipina Blaut, Caroline Gettell, Anna Maria Schier, Adam Geib and Peter Geib, as well as the surviving heirs at law of Philip Geib, were made parties defendant to the foreclosure action. Judgment was therein entered and a sale thereunder had, at which Silas Davis was the purchaser, and under the referee’s deed to him, which is dated October 12, 1877, the latter entered into possession. Davis continued in possession until October 16, 1889, when he conveyed the premises to Luny and Parker, who in turn conveyed them, on March 3, 1890, to Bernard Silberstein, and the last named grantee conveyed them to plaintiffs by deed dated October 1, 1890, under which they obtained and held possession. From the affidavits of service of the summons annexed to the judgment roll in the foreclosure action, it appears that Charles Peter Geib and Louisa Geib were served with the summons by delivery of a copy thereof to each of them; but it does not appear therefrom that a copy was also delivered for either to their mother, Phillipine Geib, with whom both infants at the time resided.

Upon the foregoing facts, defendant’s counsel contends that plaintiffs’ title to the Willett street premises is defective, because the deed from Catharine Wirth to her husband, Jacob Wirth, was void and ineffectual to convey the fee; that upon the death of Catharine Wirth her heirs at law were seized of the premises; that Phillipina Blaut, Caroline Gettell, Anna Maria Schier, Adam Geib and Peter Geib, five of said heirs at law, were not precluded by the judgment and sale in foreclosure, because they were not made parties to the action; and that Charles Peter Geib and Louisa Geib were not thereby precluded, because it does not appear from the judgment roll that jurisdiction either of their persons or of their property was acquired by service of the summons as prescribed by law.

I concur in the view that Jacob Wirth acquired no interest in the premises from his wife’s attempted conveyance thereof to him. Before the enactment of chapter 537 of the Laws of 1887, which declares that conveyances from husband to wife, and vice versa, thereafter made, shall be valid and effectual, the deed of a married woman made directly to her husband was void, absolutely in law, White v. Wager, 25 N. Y., 328; Winans v. Peebles, 32 id., 423 ; Hunt v. Johnson, 44 id., 31, and presumptively in equity. Pomerov’s Eq. Jur., Vol. 2, §§ 955, 963; Dean v. M. E. R. Co., 119 N. Y., 540; 30 St.Rep., 81; Darlington's Appeal, 27 Am., 726. To sustain the validity of the deed in equity it was incumbent upon him who asserted it to show affirmatively that it was advantageous to 1 the wife, that it was given not only for valuable, but also fo$ adequate consideration, and that its execution and delivery were free from the exercise of undue influence by the husband. The mere recital of acknowledgment of the receipt of a consideration was palpably deficient for these purposes.

That upon the death of Catharine Wirth intestate and without issue, therefore, her heirs at law were seized of the premises, and that such of them, and the heirs at law of such as had since died, who were omitted as parties to the foreclosure action, or of whoso persons or property jurisdiction was not therein acquired, are not bound by the judgment and sale thereunder, are self-evident propositions, which require no discussion.

I do not, however, agree with defendant’s counsel that the judgment of foreclosure and the sale thereunder' arc inoperative respecting the interests of the defendants Charles Peter Gfeib and Louisa Gfeib in the mortgaged premises. Both defendants were, at the time of service of the summons upon them, infants under the age of fourteen years. The Code of Procedure continued in force, as the Code of Remedial Justice, subsequently designated the Code of Civil Procedure, had not yet taken effect. Laws 1876, ch. 448, § 1496. passed June 2, 1876; Laws 1877, ch. 416, § -4, passed June 5, ■ 1877.

It provided then, § 134, subd. 2,.as the Code of Civil Procedure now provides, § 426, subd, 1,-that service of the summons upon an infant defendant under fourteen years of age must be made by delivery of a copy to the infant personally, and another to his father, mother or guardian, or if there be none within the state, then to the person having the care and control of the infant, or with whom he shall reside, or in whose service he shall be employed; and the omission to deliver a copy of the summons to one of the ¡rersons designated, as well as to the infant, has been adjudged to prevent the acquisition of jurisdiction of the person or property of the latter, and that as to him a judgment or decree in the action would be without any force or effect whatsoever. Ingersoll v. Mangam, 84 N. Y., 622 ; Bellamy v. Guhl, 62 How. Pr., 460. But in both of the cases cited the omission to make sufficient service was affirmatively shown. The presumption is that the court would not have rendered the judgment, or made the decree, except upon due proof of the service of the summons in the action in the manner prescribed by law, and this presumption is in the instance of the judgment under examination materially strengthened by the fact that it recites that it was made upon “ reading and filing due proof of the service of the summons and complaint.” Precarious, indeed, would the rights sought to be acquired by judicial decree seem if their tenure were dependent .upon the safe keeping of the affidavit or other instrument from which its jurisdiction was apparent to the court when the decree was made. The fact, therefore, that the proofs of service which are annexed to the judgment roll are deficient, in that they do not show sufficient service, does not impeach the jurisdiction of the court to render the judgment which was entered, and in terms precluded the infant defendants of their respective interests in the mortgaged premises. To destroy the presumption of jurisdiction the want of sufficient service of the summons must either affirmatively appear from the record of the foreclosure action, or the fact of non-service of the summons upon the mother of the defendants Charles Peter and Louisa Geib should have been established in this action. Bosworth v. Vandewalker, 53 N. Y., 597. Neither is the case.

As to Phillipina Blaut, Caroline Gettell, Anna Maria Schier, Adam Geib and Peter Geib, five of the heirs at law of Catharine Wirth, who were not made parties to the foreclosure action, plaintiffs insist that they have acquired title by adverse possession; but an analysis of the evidence adduced on the trial points irrofragably to the contrary.

Adverse possession of sufficient duration operates to transfer the title and right of possession of the true owner to the possessor as effectually as if conveyed by deed, Baker v. Oakwood, 123 N. Y., 16; 33 St. Rep., 223; but to have that effect it is not enough that the true owner has not been in actual possession for twenty years and upwards. It must appear that the person claiming under adverse possession, and those under whom lie claims, have been in continuous possession under the same claim of title exclusive of any other right for not less than the statutory period. Code of Civil Procedure, §§ 368, 369; Buttery v. R., W. & O. R.R., 14 St. Rep., 131; Casey v. Dunn, 29 id., 355 ; Baker v. Oakwood, supra; Ward v. Warren, 82 N. Y., 265 ; Jackson v. Burton, 1 Wend., 341; Jackson v. Johnson, 5 Cowen, 74; Doe v. Thompson, 5 Cowen, 371; Thompson v. Burhans, 79 N. Y., 99; Buss v. Johnson, 94 N. Y., 235; Sherman v. Kane, 86 N. Y., 57. If adverse possession once commenced ceases within twenty years, the possession will be deemed to have been returned to the owner of the legal title. Bliss v. Johnson, 94 N. Y., 235. The dispossessor of him who has the legal title, or the persons claiming under the dispossessor, must not have recognized the legal title within twenty years. Mayor v. Mott, 39 St. Rep., 329 ; Greene v. Couse, 127 N. Y., 386 ; 38 St. Rep., 926; Jackson v. Britton, 4 Wend., 507; Jackson v. Cuerden, 2 Johns. Cases, 353; Same v. Croy, 12 Johns., 427; Same v. Given, 8 id., 137; Same v. Smith, 13 Johns., 406; Northrop v. Wright, 7 Hill, 476; Duetrich v. Noe, 51 Am. St., 788; Am. & Eng. Ency. of Law, vol. 1, p. 272; Lawson’s Rights, Remedies and Practice, vol. 6, p. 4403. Nor can several successive and independent possessions be “ tacked"’ to make adverse possession of sufficient duration. Lawson’s Rights, Remedies and Practice, vol. 6, p. 4405; Am. & Eng. Ency. of Law, vol. 1, p. 269. To render the successive possessions of several persons continuous there should appear to be some privity of title or possession between them.

At common law the husband was entitled to possession of his wife’s lands during coverture, and to the usufruct thereof. Tyler on Infancy and Coverture, ch. xxii., § 260, p. 393. He, therefore, obtained possession as of right and in subordination of his wife’s seisin. His possession was her possession, and to urge that lie was in possession in hostility to his wife’s right of possession is to maintain that he could hold adversely to himself. Hence, the doctrine of adverse possession never applied as between husband wife Am. & Eng. Ency. of Law, vol. 1, 250; § 18, title “Adverse Possession.” The act of 1848,as amended in 1849, Laws 1848, Ch. 200 ; Laws 1849, ch. 375, enabled a married woman thereafter to acquire and hold land with like effect as though she were a feme sole, but did not otherwise destroy the legal unity of husband and wife. His place of residence remained her residence, and her possession of his dwelling house remained hi,s possession. Adverse possession of the Willett street premises, therefore, by Jacob Wirth, as against his wife is not predicable of his residence there, it appearing at the same time that she resided with him and that their marital relations continued uninterruptedly up to the time of her death. Dunham v. Townshend, 118 N. Y., 281; 28 St. Rep., 864; see also Vandevoort v. Gould, 36 N. Y., 639.

No issue was born of their marriage; hence Jacob Wirth, upon his wife’s death, was not entitled to continue in possession of his wife’s realty as tenant by the curtesy, Wasliburn on Real Property, vol. 1, ch. vi, § 7, as otherwise he would have been, Hatfield v. Sneden, 54 N. Y., 280; and for the purposes of this action we will,.therefore, assume that immediately upon his wife’s death, in June, 1867, Jacob Wirth’s continuance in possession became adverse to the right of possession of her heirs at law, and that this adverse possession was transferred to his grantee and descended to the latter's heirs at law. Those in possession under Jacob Wirth, however, were themselves turned out by the entry into possession in October, 1877, of Silas Davis under the referee’s deed in foreclosure to him. Any adverse possession, therefore, having its origin in Jacob Wirth’s continuance in possession after his wife’s death came to an end after a duration of only little more than ten years. On the trial plaintiffs disclaimed the accrument to them of any title to the premises or right to the possession thereof through the foreclosure action, and obviously if the disclaimer be persisted in, there is no privity either of title or possession between them and Jacob' Wirth, or those deriving possession under him.

In so far as the adverse possession having its origin with the entry of Silas Davis is concerned, it is wholly independent, therefore, of those ousted or dispossessed by him. On the other hand, if the disclaimer of the accrument of title or right of possession through the foreclosure action be withdrawn, and it be now insisted that the judgment of foreclosure therein and the sale thereunder operated to transfer the possession of those claiming under Jacob Wirth to the purchaser, then it must be conceded that the judgment and sale effected a like transfer of the right of possession and legal title of such of the heirs at law of Catharine Wirth who were made parties defendant to the action; and tbs fact of their having been made such parties to bar them of the equity of redemption and their right of possession, with the further fact that the purchaser under the foreclosure sale entered into possession under the judgment and sale to him, amounts to an unequivocal admission of the legal title in the heirs at law of Catharine Wirth at the time of foreclosure. There is nothing to indicate that Silas Davis entered and continued in possession pursuant to the transfer of Jacob Wirth’s adverse possession to him rather than under the transfer of the legal title of Catharine Wirth’s heirs at law to him, supposed to have been accomplished by means of the foreclosure action. Hence, the adverse possession of Jacob Wirth, commencing with the death of his wife, in June, 1867, cannot be said to have continued after Davis entered into possession, in October, 1877. Adverse possession depends upon the intention of the possessor to hold adversely. Culver v. Rhodes, 87 N.Y., 348; Jackson v. Thomas, 16 Johns., 293.

The presumption always is, until the contrary appears, that the person in possession has derived it from and holds it with the consent of the owner of the legal title. Code Civ. Pro., § 368. A claim of adverse possession, therefore, necessarily requires strict proof to substantiate it, Jackson v. Sharp, 9 Johns., 163 ; Schwallback v. C. M. & St. P. R. R. Co., 2 Am. St., 740, and until it has ripened into title nothing will be presumed in its favor. A. B. N. Co. v. N. Y. E. R. R. Co. et al., 129 N. Y., 252, 260; 41 St. Rep., 531. Davis, the purchaser, having by means of the foreclosure sale acquired the legal title of such of the heirs at law of Catharine Wirth who were made parties to the action, and who with the heirs omitted as parties were entitled to rightful possession of the premises as tenants in common, he cannot, as matter of law, be said to have entered into and retained possession under an adverse holding founded upon a different claim of title which may have been transferred to him at the same time, in preference to the rightful possession secured from some of the heirs at law who were legally entitled to possession, in the absence of evidence demonstrating that such was his intention. A. B. N. Co. v. N. Y. E. R. R. Co. et al., 129 N. Y., 252, 260; 41 St. Rep., 531. Hence, it cannot be successfully urged in this action that there was a continuity of adverse possession, originating with Jacob Wirth upon the death of his wife, in June, 1867, under the same claim of title and exclusive of any other right, Code Civ. Pro., § 369, after Davis’ entry in October, 1877, under the foreclosure sale to him. Davis’ claim of title and right of possession is founded upon the foreclosure judgment and sale, and in so far as his possession is adverse to the claims of the heirs at law of Catharine Wirth it has not yet endured for twenty years and is ineffectual as a bar.

Por the reasons stated, I am of the opinion that such of the heirs at law of Catharine Wirth who were not made parties to the foreclosure action may still recover their rights or interests in the Willett street premises; that plaintiffs, therefore, did not, and cannot now, tender defendant a title to or right of possession of the premises free from reasonable doubt. Pomeroy on Specific Performance of Contracts, § 198 ; Kilpatrick v. Barron, 125 N. Y., 751; 36 St. Rep., 15.

Judgment must, therefore, be for defendant, with $250 damages, besides the interest thereon and the costs of this action.  