
    Joshua C. Sanders, Appellant, v. Emilie Riedinger and Others, Respondents.
    
      Adverse possession — character of the inclosure required — presumption of entry in siiboi'dination to the legal title—possession under a tax lease is not adverse—possession under a quitclaim deed from the tax tenant—recording of the deed—evidence establishing a lost deed.
    
    In the absence of proof showing under what claim the adverse claimant entered upon land, it must he assumed that he entered in subordination to the legal title.
    In order to establish a title by adverse possession, it is not necessary that the property in question should be fenced on every side. A natural harrier on one side, and the inclosure of the ground by fences on the other sides, is sufficient ■ to comply with the statute, and it is not necessary that there should be a fence between the land in question and other lands of the occupant.
    ■Possession under a claim based upon a tax lease for a term of years is not adverse to the owner of the fee of the land, and will not, by lapse of time, create a valid title.
    Evidence that a party, entering under a quitclaim deed of lands given by one who had acquired a tax lease thereof for a term of years, did so under an agreement for the purchase of the whole premises, and that he entered thereon believing that he was the owner in fee, and that he always so claimed, is sufficient to warrant the finding of a possession on his part, not as a tax tenant, but as the owner of the fee.
    The mere fact that the deed was not recorded is immaterial.
    Evidence sufficient to establish a lost deed, considered.
    Appeal by the plaintiff, Joshua C. Sanders, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Westchester- on the 30th day of October, 1897, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 21st day of October, 1897, denying the plaintiff’s motion for a new trial made upon the minutes.
    
      James M. Hunt, for the appellant.
    
      Norman A. Lawlor, for the respondents.
   Cullen, J. :

' This action Is in ejectment to recover a lot of land situate gt Williamsbridge, formerly in the county of Westchester, now in that of New York. The answer denies the plaintiff’s title, and sets up ás affirmative defenses that at the time of the grant to the plaintiff the premises were in the actual possession of the defendants, claiming title thereto adversely to the plaintiff’s grantor, and also that such adverse possession had been held by the defendants and their grantors for upwards of- twenty years prior to the commencement of the action. The evidence: on the trial showed that Duncan S. Fowler became the owner of the lot in dispute on July 18, 1856. Fowler died September 16, 1864, leaving a will by which he devised the remainder of his estate (which included this lot, if Fowler then ■ owned it) to his grandsons William IT. F. ITuesti's and Emory J. Huestis. William was born September 13, 1855, and Emory in June, 1858. Emory J. Huestis died April 4, 1884, intestate, as to his realty, leaving his father, Gilbert Huestis, and his brother William his only heirs at law. On October 24, 1893, Gilbert Huestis conveyed to William his interest in the lot. On November 2,1893, William Huestis conveyed the lot to the plaintiff. Thus the plaintiff established his record title to the premises.

The evidence on the part of the defendants-tended to show that in the latter part of the “fifties” one Peter Briggs, Jr., who was the owner of four adjoining lots to the west, was in- possession of the lot in dispute. All the lots abutted on the Bronx river, The four lots were inclosed as a single parcel, the Bronx bounding it on one side, the other -three' sides- being fenced. Briggs had a factory on the premises, though apparently the building -was, not on the disputed lot. The lot was used as a place for empty boxes and barrels that came from the factory, and also as a driveway to the factory. Work ivas stopped in the factory in 1860, but Briggs continued in possession of the premises until his conveyance to the original defendant, August Riedinger. In February, 1862, the lot was sold for unpaid taxes by the county treasurer of Westchester county to Briggs, for the term of 1,000 years. A conveyance was executed' by the county treasurer on this sale on February 11, 1863, which was recorded on the same day in the register’s office of the county. In July, 1865, Peter Briggs, Jr., executed the following conveyance of the lot in dispute:

“ Know all men by these presents, that I, Peter Briggs, Jr., of the town and county of Westchester, and State of New York, for and in consideration of the sum of one dollar to me in hand paid by August T. Reidinger of the city and county of New York, do hereby assign, transfer and set over unto the said August T. Reidinger, and to his heirs and assigns forever, all my right, title and interest in and to a certain lot of land, described in a certain lea'se made and executed by Gilbert S. Lyon, county treasurer of the county of Westchester, to Peter Briggs, Jr., dated February 11, 1863, and recorded in the office of the register of the county of Westchester, in Liber 491 of Deeds, page 158, &c., February 11, 1863, at 30 minutes past 12 o’clock, p. m.
“ In witness whereof, I have hereunto set my hand ■ and seal this 17 day of July, A. D. 1865.
“PETER BRIGGS, Jr. [L. S.] ”

On July 28,1865, Briggs and his wife, for a consideration of $800, conveyed to August T. Riedinger, by warranty deed¿ the adjacent four lots to the west. Under th.ese conveyances Riedinger entei’ed into possession of the premises and remained in occupation of them until his death, which occurred subsequent to the commencement of this action. During that period the premises were inclosed in the same manner as they had been during the occupation of Briggs, that is to say, fences on three sides and the river on the fourth. The premises Avere occupied by Riedinger as his homestead, the lot in dispute being' cultivated and planted. There Avas also evidence given on the part of the defendants' by a Avitness named Bodenberger, by Avliich the defendants sought to prove that Duncan S. Fowler, between 1863 and 1865, conveyed the lot in controversy to Briggs by a deed which was not recorded and has since been lost. In rebuttal the plaintiff gave proof of admissions by Riedinger to the effect that he held the disputed lot under a lease, and. also testimony given by him in proceedings taken by the city of New York to condemn the water rights of riparian owners in the Bronx river, to substantially the same effect. The first trial of this action was had during'Riedinger’s lifetime. On that trial he denied making the admissions or giving the testimony ascribed to him. On this trial the case was sent to the jury on- two questions —that of adverse possession and that of the conveyance from Fowler to Briggs ; and the second question the jury was directed to answer specifically. The jury rendered a general verdict for the defendants, and answered in the affirmative the question, Did Duncan S. Fowler, before July, 1865, convey, to Peter Briggs a deed of lot 145 A?” From the judgment entered on that verdict this appeal is taken.

We think there can be no question that' the occupation by the defendants and their predecessors in title, so far as its physical attributes are concerned, was sufficient to support adverse possession under the statute. It was not necessary that the property should be fenced on every side. A natural barrieron one side, the other sides being inclosed, is enough under the statute. (Trustees, etc., Town of East Hampton v. Kirk, 84 N. Y. 215 ; Jackson v. Halstead, 5 Cow. 216; Becker v. Van Valkenburgh, 29 Barb. 319.) Nor do we think there is any force in the point that there was no fence between the disputed lot and the other part of the defendants’ premises. The appellant relies on the authority of Doolittle v. Tice (41 Barb. 181). There is to be found in the opinion in that case,, in reference to the inclosure required'by the statute, the following sentence : It must be an inclosure of the lot alone, upon the lines claimed by the party, and not embracing premises adjoining, extending in part a great distance from the lines.” ' But this must be construed with reference to the subject-matter then before the court.' In that case the adjoining premises were neither the property of nor in the possession of the defendant, but belonged to and were occupied by a third person, and there was no fence or barrier between such lands and the lands claimed to be held adversely. It was held that it was insufficient, to constitute an adverse possession, that tire property should be inclosed in connection with adjoining lands of another owner. But that is a very different question from inclosing lands in connection with other lands of the occupant. Many times, if not in the majority of cases, the question of adverse possession arises with reference to a disputed boundary line. If, in such cases, it were necessary, to constitute a good statutory possession, that there should be a fence on- the true line, so aá to separate the property in dispute from the remainder of the defendant’s premises, the defense of adverse possession could rarely prevail. If such a fence were erected, we should regard it as almost conclusive that the defendant knew his true line and was not entitled to anything beyond it.

The serious question, as to the sufficiency of the evidence to justify the submission of the defense of adverse possession to the jury, relates to the character of the title or claim of title under which the defendants and their predecessors occupied the disputed premises.' There is nothing to show under what claim Briggs originally entered upon this lot. In the absence of proof on the subject, it must be assumed that he entered in subordination to the legal title, which was in Fowler. (Hammond v. Zehner, 21 N. Y. 118; Stevens v. Hauser, 39 id. 304.) A witness who worked in the factory during' the time that Briggs maintained it testified : “ Briggs was in possession of that property from late in the fifties until Mr. Riedinger took possession. He claimed it.” This testimony is of a very indefinite character. . It is not stated when Briggs claimed the premises. If made after he received the tax lease, it may well be referred to his rights under that lease; and it is settled' by authority that a claim under a tax lease, for a term of years, is not adverse to the owner in fee, and will not, by lapse of time, create a valid title. (Bedell v. Shaw, 59 N. Y. 46 ; Doherty v. Matsell, 119 id. 646, fully reported in 2 Silv. 550.) We should, therefore, be inclined to the opinion that the possession of Briggs was not adverse to plaintiff’s predecessor in title.

We now come to the consideration of the conveyance from Briggs to Riedinger. We think it is a quitclaim deed. It does not purport to transfer merely Briggs’ interest under the lease, but all his right, title and interest whatever to the land, reference being made to the lease solely for the purpose of describing the land conveyed. The words “ assign, transfer and set over ” are sufficient to convey the lands described in a deed containing those words. (Fash v. Blake, 38 Ill. 367.) “ As other modes of conveyance operate equally as grants, any words showing the intention of the parties to convey would be sufficient.” (4 Kent’s Com. 492. See. also, Wilhelm v. Wilken, 149 N. Y. 447.) Now, while the possession of the holder of the tax lease could not be adverse to- the owner in fee, the possession of. a grantee in fee from the tax tenant would be adverse. (Sands v. Hughes, 53 N. Y. 287.) But it is claimed, on the authority of Doherty v. Matsell (supra), that a different rule prevails where-the tenant under the tax lease conveys only by quitclaim. In that case one Matsell entered into possession of the premises under a tax lease. Thereafter he quitclaimed the premises to one Mickle and at the same time assigned to him the tax lease and its covenants. Subsequently he resumed possession of the premises, but apparently without any conveyance from Mickle. At a still later period he conveyed the premises to his son.' It was held that the possession of the premises by the elder Matsell and by Mickle was not adverse, but under the tax lease. It is to be borne in mind, however, that the referee before whom- the case was tried found, as a matter of fact, that the possession of the elder Matsell and Mickle was under the tax lease, and under no other claim of title. The question, therefore, before the'Court of Appeals was not whether, as a matter of law, the possession was of the character found, but whether the evidence was sufficient to support the finding.of fact by the referee. In the present case the situation is reversed. The jury has decided, as á matter of fact, that Riedinger’s possession was not as tax tenant, but adverse to the owner in fee, and the question is whether there was any evidence to authorize that finding. That a quitclaim deed may be a sufficient claim of title upon which to found an adverse possession, I think, results from the decision in Wilhelm v. Wilken (supra). In that case it was held that a grantee for. value under a quitclaim deed did not acquire merely the interest of his grantor, but a valid title as against the grantee under a prior uiirecordéd deed. The testimony 'of the original defendant, taken on the first trial, was to the effect that his agreement was for the purchase of' the whole premises, that he entered thereon believing, he was the owner, in fee, and that he always claimed them. The testimony as to Riedinger’s admissions concerning his tenure of the premises tended, to contradict this testimony, but its effect was simply to raise a question of fact which it was for the jury to determine. We are, therefore, of opinion, with .some hesitation, that the evidence was sufficient to warrant the finding of the jury.

In connection with this branch of the case it is proper to notice certain exceptions taken by the plaintiff to the ruling of the trial court. As the plaintiff’s counsel has neither in his brief nor on the argument pressed any of these exceptions upon us, except the one to the refusal to direct a verdict in his favor, our notice may be brief. The testimony of the deceased Riedinger on the previous trial was, under section 830 of the Code of Civil Procedure, subject to any legal objections that might be taken. I cannot find that any of the questions objected to were answered; at least there is nothing in the record before us to show that fact. There is in the testimony, which is in narrative form, statements of the"character of that objected to, but it does not appear that it was given in answer to the questions, nor was any motion made to strike the testimony out.

If there was-no adverse possession by Briggs, then the charge of the court, to which the plaintiff excepted, that twenty years’ adverse possession by the defendants or their predecessor under a claim of ownership for over twenty years would vest in them a good title, was erroneous, because the plaintiff’s grantor was an infant at the time that Riedinger entered. (Howell v. Leavitt, 95 N. Y. 617; Darrow v. Calkins, 154 id. 503.) But the error was harmless. The court instructed the jury that possession under the tax lease was not adverse. The adverse possession of the defendants, though it did not bar the title of the plaintiff’s grantor, rendered the deed to the plaintiff valid. (1 R. S. [2d ed.] 732, § 147 ; Pearce v. Moore, 114 N. Y. 256.) Nor can the question discussed (Crary v. Goodman, 22 N. Y. 170) be material here. Under the facts of this case, the defendants’ possession was either adverse for all purposes, or not adverse at all.

If the'evidence was sufficient to justify the jury in finding that the plaintiff’s predecessor in title (Duncan S. Fowler) conveyed the' lot to Briggs, then the plaintiff acquired no right to the premises in dispute, and the title was vested in the defendants. The fact that the deed was not recorded is immaterial, for the defendants’ occupation of the premises was sufficient notice to the plaintiff of

all the former’s rights. (Phelan v. Brady, 119 N. Y. 587.) As the jury has specifically found that this conveyance was made, the finding,-if properly made, cures any error that may have been committed in the disposition of the defense of adverse possession. A -disinterested witness testified to the execution and delivery of this deed. Criticisms are made as to the improbability of his story, but those criticisms were for the jury, and wTe cannot say that, as matter of law, the story was incredible or so improbable as to justify us in interfering with the verdict. The question then occurs as to the sufficiency of the testimony to establish the lost deed. The witness testified to a deed being brought to him by Fowler and Briggs ; that the name-of Fowler was subscribed to it; that it was a deed of the lot in suit, and that was delivered to the witness. The witness did not know Fowler’s signature, but the fact that Fowler was present ■when the deed was brought was sufficient to warrant the presumption that the signature was genuine. Further, he testified that the deed was acknowledged before Adee, a justice of the peace, whose signature he knew. It is objected that the witness’ statement as to the contents of the deed was not sufficient; -that he did not state the . -date nor consideration, nor whether it was for a term of years, or in fee.' The date and consideration- are immaterial. It is true that technically a conveyance in fee is not necessary to constitute a deed. At common law' a deed is “a writing. sealed and delivered by the parties,” but in ordinary language the term is used in a much more limited and restricted sense as a conveyance of the fee of land. " Neither a mortgage nor a lease under seal is usually spoken of as a •deed. (Devlin on Deeds, § 5.) The best evidence of the ordinary understanding of the term appears in the present record. The record was prepared by the plaintiff’s counsel, and the conveyances through which the plaintiff traces title are not set forth in full, but in lieu thereof. the statement: Deed from blank to blank, bearing date blank, conveying premises in dispute. There is not to be found in the record a statement of what or how great the interest granted by these conveyances was. Yet, of course, we assume that they were grants of the fee. The witness was allowed to testify without ■objection that the instrument was a -deed of the lot in suit. No . attempt was made to learn from the witness the nature or terms of the grant, nor was the point raised on the trial that the contents of the instrument had been insufficiently given. It is evident that both parties understood a deed to mean, a conveyance of the fee, and we think this criticism now comes too late. On the whole, we are of opinion that the judgment should be affirmed.

All concurred. ■

Judgment and order affirmed, with costs.  