
    Henrietta Church, Respondent, v. Rhoda Shultes and Others, Appellants.
    
      Adverse possession —an entry under a sheriff’s deed conveying the tenant’s interest, sold under execution, simply changes the tenant — a tenancy, once established, is presumed to continue for twenty years—parties defendant—Code of Civil Procedure, § 373.
    In an action of ej ectment it appeared that the land in question,' a part of lot Ho'. 308 in the manor of Rensselaerwyck, had been leased by a perpetual lease by Stephen Yan Rensselaer to Shubel Bouton and another'; that Jacob I. Shultes took a deed of the premises, dated April 1, 1851, from a person, named Lincoln, who was not shown to have then had any title to the premises described in the lease, which recited the fact that the land was a part of lot He. 308,. and was conveyed “ subject to its proportion of certain annual rents, and of certain covenants and.conditions” contained in the original lease, and that Jacob I. • Shultes conveyed the land by 'a deed reciting the same facts to his son, Cyrus B. Shultes, who in 1858 conveyed the land to his mother, Rhoda Shultes, by a deed which did not recite the original lease. In 1852 Yan Rensselaer, the successor in title of the lessor, secured a judgment against Jacob I. Shultes, which . became a lien upon the land,, upon a cause of action which had, however, no relation to-the lease or the rent 'of the land, and in- 1856 Jacbb’s interest in the land was sold on execution to William Campbell, who in 1861 conveyed the land to Rhoda Shultes, who claimed that she thereby began a possession of the land which was adverse to the Van Rensselaer title.
    
      Held, that this view was erroneous;
    That Jacob I. Shultes stood in the relation of tenant to Van Rensselaer; that it was only his interest as tenant (which was sold to discharge a debt not connected with the rent) that Rhoda Shultes acquired; that as no interest of the lessor was sold and none could be'acquired under the sale, the lease was not terminated or affected thereby, the result of the transaction being simply that the tenant of the land was changed;
    That as, in this view, Rhoda Shultes, under the deed from Campbell, entered as a tenant, her possession could not, under the provisions of section 373 of the Code of Civil. Procedure, be deemed adverse until twenty years after her entry, and that, as that length of time had not expired, her defense of an adverse possession failed;
    That as all tho Shultes were living upon the land it Was proper to make all ■ of them parties defendant.
    Appeal by the defendants, Rhoda. Shultes and others, from á judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Albany on the 12th day of December, 1894, upon the report of a referee.
    The action was an action of ejectment brought by the successor of theTessol under a perpetual lease against the tenants for nonpayment of rent.
    
      W. & G. W. Youmans, for the appellants.
    
      Marcus T. Hun, for the respondent.
   Parker, P. J.:

In this action the record title from Stephen Van Rensselaer is conceded to be in the plaintiff, and defendants, to succeed in their defense, must show a title by adverse possession in Rhoda Shultes.

On February 15,1858, Rhoda Shultes took a deed from Cyrus B. Shultes of the premises now occupied by her, which are a part of lot Ho. 308 in the manor of Rensselaerwyck, and which lot had, on July 26, 1803, been leased by a perpetual lease' by. Stephen Van Rensselaer to Shubel Bouton and Shubel Bouton, Jr.

Cyrus B. Shultes had acquired his interest in the land by a conveyance from Jacob I. Shultes, but it does not appear that Jacob had, in any manner, succeeded to the interest of the Boutons, or that he had any title whatever' to the premises which he so conveyed.

• He had, however, taken a deed from one Lincoln, dated April 1, 1851, in which is recited the fact that the premises were a part of lot Ho. 308, and were subject to its proportion of certain annual •rents, and of certain covenants and conditions made and reserved by Stephen Van Rensselaer,.Esq., in his original Lease of said whole Lot Ho. 308.,”

The same fact was recited in the conveyance from Jacob to Cyrus, but the recitation was not, as I understand it, in the deed from Cyrus'to Rhoda Shultes. Jacob was the husband, and-Cyrus was the son, of Rhoda Shultes, and they all resided on the premises in question. ' . ' ■

It appears, therefore, that both Jacob and Cyrus Shultes, by the .express terms of their deeds, .entered- into possession of. the premises subject to the Van Rensselaer lease, and the conveyance to Rhoda could not vest in her any other or greater interest. . . ■

On December'8, 1852, Van Rensselaer had secured a judgment against Jacob Shultes for $302.80, which was a lien .upon his interest in the premises when he conveyed, to Cyrus, and Rhoda, of .course, took- her conveyance subject to that lien. Such judgment was not obtained for rent due upon the lease of. lot' Ho. 308, but was upon a claim having no connection with Jacob Shultes’ character as a lessee of that lot. Afterwards, in 1856, on execution issued upon such-judgment, Jacob’s interest was sold, and conveyance subsequently given by the sheriff of. the premises in question to "William Campbell, and on the 21st day óf January, 1861, Campbell executed a deed of the premises to Rhoda Shultes. She seems, to have taken this conveyance from-'Campbell as a'-protection to her interest acquired from Cyrus. It is alsoeoncédéd that no rent has ever been paid by Rhoda Shultés. "

Defendants’ counsel claims that by virtue of the deed from Campbell January 21,1861, Rhoda Shultes is to be deemed as having then entered into possession of the premises adversely to Van Rensselaer’s title, and that at the expiration of twenty years therefrom her title became perfect by adverse use.

His theory is that, by reason of Van Rensselaer’s action in selling Jacob Shultes’ interest in the premises, any relation of landlord and tenant which may have existed between them was terminated; that the lease as to such premises was forfeited, and that any one entering under a conveyance based upon a sale at once entered upon an adverse use; that the relation of landlord and tenant cannot be said to have even existed as between such a purchaser and Van Rensselaer, and that, therefore, the provisions of section 373 of the Code have'no application.

Conceding that Rhoda Shultes took her possession under the deed from Campbell, and yet wé are of the opinion that she must be deemed to have entered under the lease.

The defendants’ counsel concedes that Jacob Shultes stood in the relation of a tenant 'to Van Rensselaer, and it is very plain that he must be so considered. (Bradt v. Church, 110 N. Y. 537.)

It was his .interest as such tenant, and that only, which was sold on execution, and which passed under' the conveyance to Rhoda Shultes. She acquired the same interest which he had; -took the benefits of his rights, and the burden of his obligations. Surely none of the interest of the lessor can be deemed sold by such a proceeding, even if the judgment creditor was the lessor. He assumes to sell no more, than the lessee’s interest, and we cannot perceive any difference in effect between this sale and one to which the judgment creditor was an utter stranger. The effect of such a sale is not to “ forfeit ” the lease, but simply to change the tenant.

The relation, between the landlord and tlie party sold out is terminated, but the purchaser takes his place, and the lease is still in full force. In short, such a transfer by execution and sale is no different in effect from a conveyance by the lessee to another, and whoever enters must assume possession as a tenant of the lessor.

Under this view of the case Rhoda Shultes entered as tenant, and her possession, under the provisions of section 373 of the Code, could not be deemed adverse until. the' expiration of twenty years thereafter. Then, by reason of the non-payment of rent, it may have, become adverse, but since such date a sufficient time has not elapsed to ripen it into a title, and, therefore, her defense against the record title has failed.

It is further claimed by defendants’ counsel that only Rhoda Shultes should have been made a party^.and that as to the other •defendants the action should be dismissed:

All the parties were living upon the land. The defendant Cyrus Shultes was working the farm, and the defendant Philena living in and having charge of the house and caring for their mother, Rhoday -who is evidently too old and feeble to care for herself. We think, .'under the. circumstances, they were properly joined' in this Action. Our conclusion, therefore, is that the judgment must, be affirmed.

All concurred.

'.Judgment affirmed, with costs.  