
    Matthew Halliman, App’lt, v. James Murphy et al., Resp’ts.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed June 21, 1895.)
    
    Ejectment — Possession under unrecorded deed — Notice.
    A finding, in an action of ejectment, that the plaintiff took title with notice of a prior unrecorded deed to another person will not be disturbed on appeal, where it appears that,'when he received liis deed, the grantee under the prior deed was, and remained, in possession up to the time of the action.
    Motion for a new trial on exception, ordered to be heard at, general term in the first instance.
    
      E. D. Northrup, for pl’ff; G. M. Rider, for def’ts.
   Ward, J.

— This was an action of ejectment, to recover a small strip of land, tried at the Cattaraugus circuit in September, 1894. Both parties claimed under a common source of title. The deed to the defendants was executed and delivered first, but not recorded until after the original deed to the plaintiff’s grantor, John Murphy, was recorded. Both deeds covered the premises in controversy. The original grantees' were brothers, and took premises adjoining, under their several deeds. The defendants-were in possession of the disputed premises when John Murphy obtained his title, and he doubtless had constructive, if not actual,, notice of the defendants’ rights. Later on, John Murphy wanted to get the title in his wife, Margaret, to the premises he owned, and he and his wife deeded by quitclaim deed to the defendant JarnesMurphy the premises, following the description of John Murphy’s deed, and James Murphy quitclaimed the premises, by the same-description, back to Margaret. There was no consideration for either deed, except the purpose of transferring the title of John Murphy to his wife, Margaret. The deeds bear date the same? day and are recorded the same day and hour. Through a sheriff’s sale against Margaret, and through various mesne conveyances, the plaintiff obtained his title to the premises. The defendant James had occupied the premises covered by his deed, and including the premises in dispute, more than twenty years before the commencement of this action, and there was strong evidence showing that he had acquired title to the premises by adverse possession. At the close of the trial the defendants asked for a direction by the court of a verdict in their favor. The plaintiff, in effect, asked for a direction of a verdict in his favor, except as to-the damages, and he desired that question submitted to the jury. The trial court directed a verdict l'or the defendants.

The plaintiff claims that, as the original deed to John Murphy was first recorded, he has superior title, under the recording act; and he also takes the position that, because of the deed of the defendant James Murphy to Margaret, James has parted with his title to the premises in dispute. The -learned trial court passed upon all of the questions of fact in the case, in the place of the jury, under the requests, except the question of damages; and the court, finding those facts and the law with the defendants, eliminated the question of damages from the case altogether, and there was nothing, therefore, to go to the jury. The court may well have found that John Murphy had actual or constructive notice of the defendants’ rights to the premises in dispute, or that the defendants’ title to them was perfect by adverse possession. If it found the last question in favor of the defendants, the deed to Margaret would be unimportant. As between the original parties, the deed to Margaret did not convey any more to her than the defendant James obtained by reason of the deed from John and Margaret to him. James was an intermediary, simply, for the accommodation and benefit of John and his wife, and John would have been estopped from claiming the premises in dispute from James, under that deed; and those claiming under John and Margaret are equally estopped, as the constant, notorious, and open possession of James of the. disputed premises was notice to all of his rights. At least, so the trial court may have found. Indeed, by a provision in the plaintiff’s deed, the occupation of the defendants of the premises in dispute is recognized. The motion for a new trial should be denied, with $10 costs and the disbursements, and judgment ordered for the defendants upon the verdict. All concur.  