
    Joseph Bohn et al., App’lts, v. Albert G. Hatch, Resp’t.
    
    
      (Court of Appeals,
    
    
      Filed April 12, 1892.)
    
    1. Real estate—Equitable bights—How established—License.
    To move a court of equity to support a claim for the improvements put upon the property of another, it should at least appear that the occupants-had acted upon a belief as to their title which had some probable basis, and that the real owners knowing of these acts, suffered them to go on without notifying them.
    2. Same.
    In 1865 plaintiff <B. obtained permission from Jesse Peck, now deceased, to move a small house upon some land proposed to be made by filling in on the bank of a stream. In an action by B. to restrain defendant from removing him and to hav,e his equitable interest adjudged, he testified that Jesse Peck told him to fill up the land and he would give him a portion of it. The record title and ownership were in the sons of Jesse Peck. It did not appear that he had any authority from them to create any interest or rights in or to the premises, or that they knew of or ratified his action. Held, that the claim of plaintiffs had no foundation in facts’ upon which equity could rightly intervene for his protection.
    3. Same.
    The subsequent acceptance of a lease of the premises by plaintiffs was a recognition of the title in the lessor, which, when considered in connection with the absence of any legal title or estate in them, amounted to a Waiver of any claims for improvements.
    4. Same—Code Crv. Peo., § 1638.
    The plaintiffs attempted to found some right upon a tax sale two years prior to the lease. Held, that the certificate received then conferred no title to nor any estate in the premises. Under § 1638 of the Code the possession of the property must be under some claim of title in order to maintain the action and this is not an action authorized by that section.
    Appeal from a judgment of the superior court of Buffalo, general term, affirming judgment in favor of defendant dismissing plaintiffs’ complaint.
    
      O. C. DeWitt, for app’lts; M L. Parker, for resp’t.
    
      
       Affirming 39 St. Rep., 404.
    
   Gray, J.

This action was brought by plaintiffs to restrain the-defendant from prosecuting in the municipal court of Buffalo proceedings to summarily remove them from premises in their occupation, and to have their equitable interest in and to the same adjudged. Their complaint was dismissed at the trial term of the-superior- court of Buffalo, and the judgment of' dismissal was affirmed upon appeal to the general term. The opinions delivered upon each occasion were very full in their discussion of the questions and leave little for us to say now in further affirmance of the judgment.

In 1865 the plaintiff, Joseph Bohn, obtained permission from Jesse°Peck to move a small house upon some land proposed to-be made by filling.in on the bank of a stream. The allegations of the complaint and the evidence first given by plaintiff placed his entry into possession of the premises upon the ground of a mere license to, occupy them; but, subsequently, he changed his evidence and testified that Jesse Peck told him to fill up the land and that, if he did so, he. would give him a portion of it. The latter aspect of the case for the. plaintiffs would be, of course, the-more favorable one to them; inasmuch as such an agreement with an owner of the land would be based upon some consideration and give strength to the claim of the plaintiffs for equitable relief. But the difficulty in the way of any equitable relief lies in the utter failure of the evidence to prove any title, or sufficient authority, in Jesse Peck. At the time the record title and th ownership of the premises were in Francis and Charles Peck, who were in California. They were sons of Jesse Peck; but it did net appear that he ever had any authority from them to create any interest, or rights in, or to the premises. Mor did it appear that the owners ever knew of plaintiffs’ entry ; or that there was any ratification of what Jesse Peck had done. He is dead, and the extent of any authority in him to deal with the property turns upon evidence of circumstances which fall short of establishing the fact.

Certainly, there was no evidence competent to prove the existence of any power in Jesse Peck to grant any rights in connection with the property in question. With no action by the owners and with no authority in Jesse Peck, who, we may even assume from the evidence, exercised some supervision over the property, I cannot see that the claim of the plaintiffs has any foundation in facts upon which equity can rightly intervene for their protection. The mere assumption of Bohn at the time of his entry that Jesse Peck had .the title to, or some delegated power over, the property, from the circumstances of his taking care of it or from appearances, did not warrant nor protect him in entering upon and occupying the land. Mo property rights can be predicated upon what was mere assumption and which the slightest investigation of title, or of the authority of the presumed agent, would have demonstrated .to be baseless. To move a court of equity to support a claim for the improvements put upon the property of another, it should at least appear that the occupants had acted upon a belief as to their title which had some probable basis; and that the real owners, knowing of their acts, suffered them to go on without notifying them. It further, appears that in 1875, ten years afterward, plaintiff Bohn took a lease in writing of the premises for three years from George DeWitt Clinton, agreeing to pay an annual rental therefor. In a proceeding in the Buffalo municipal court, brought by this defendant and another, as the owners of the property in fee through a conveyance of Clinton’s title, to remove these plaintiffs for default in the payment of rent, a judgment was had, upon issues raised and tried, which established the lease and the lessor’s title. In that proceeding, the tenants, these plaintiffs, by their answer put in issue the. title to and the leasing of the premises, as well as the other allegations of the petition as to their indebtedness for rent and of their holding over after default The final order of the municipal court was, upon appeal to the superior court, affirmed there and the judgment is conclusive upon these‘plaintiffs as to the defendant’s title. They claim the right to attack the validity of the judgment on the ground that the lease was void; but the dispute over the lease and all questions concerning its validity ended, as to these parties, with the termination of the litigation by the judgment of affirmance in the superior court. The adjudication in that litigation has barred any inquiry, in another action between the same parties, into matters involved in and necessarily passed upon by the judgment in the previous action.

These plaintiffs are in no position to assert any title to the land, or to claim payment for. the improvements made upon it In any way their case is regarded, it is defeated for the want of any title or authority in Jesse Peck, through whose acts they claim and the subsequent acceptance of a lease of the premises was a recognition of the title in their lessor, which, when considered in connection with the absence of any legal title or estate in them, I consider to have amounted to a waiver of any claim for improvements.

The appellants attempt to found some right upon a tax sale two years prior to the lease ; but the certificate received then conferred no title to, nor any estate in the premises. There was nothing in that, nor in the existing conditions, upon which to found a claim of adverse possession, which would, as appellants’ counsel' argues, entitle them to maintain this action as against the grantees-of the former owner. Under § 1638 of the Code, to which he refers, the possession of the property must be under some claim of title, in order to maintain the action. This is not an action which that section authorizes.

A careful consideration of this case compels the conclusion that, there is no ground for the award of any equitable relief. To-support a claim for an accounting, in a case where the plaintiffs-have failed to prove any legal inception of their occupation, under some actual, or implied grant of rights from the owner of the property, and where their entry was only under the perjnissioni of one standing in no relation of ownership, or of agency, would be contrary to legal principles and without any precedent that I am referred to, or am aware of.

The judgment appealed from should be affirmed, with costs.

All concur.  