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38 130 50 121 38 130 $58 289

FIRST DEPARTMENT, MARCH TERM, 1899.

[Vol. 38.

JOSEPH HAMERSHLAG and DAVID E. OPPENHEIMER, Appellants, v. OSCAR DURYEA, Respondent.

Adverse possession · when it does not begin to run under a warranty deed from one of two tenants in common — · acts of user not inconsistent with the right of the other

co-tenant.

The fact that a grantee of land takes possession under a deed containing covenants of seisin and warranty of the whole title, by which one tenant in common of the premises conveys in terms all the premises and not simply his undivided interest therein, is not of itself sufficient to begin an adverse posses sion, such as will oust the other co-tenant. Before that can be begun, there must be notice in fact to the co-tenant that the adverse claim is made, or there must be such open and public acts by the adverse claimant as will make his possession so visible, hostile, exclusive and notorious that notice on the part of the co-tenant of the claim adverse to his right may fairly be presumed. Where such grantee, a corporation, has at a date not earlier than 1859, inclosed the lots, for purposes of cultivation, by a fence which also included other lands to which it alone had title, there being nothing from which it can be inferred that those particular premises were put to any use to which any co-tenant might not have put them, or were devoted to any purpose inconsistent with the right of any one who had title to them, in connection with the corporation, such adverse possession on the part of the corporation cannot be said to have ripened into a marketable title, which a purchaser should be compelled to accept under a contract of sale made in 1897.

APPEAL by the plaintiffs, Joseph Hamershlag and another, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 12th day of December, 1898, upon the decision of the court rendered after a trial at the New York Special Term.

William H. Stockwell, for the appellants.

George M. Baker, for the respondent.
RUMSEY, J.:

On the 16th day of October, 1897, the plaintiffs made a contract to buy from the defendant certain premises situate in the city of New York, and to pay $1,000 upon the execution of the contract and the remainder of the purchase price at the time when the contract was closed; and the plaintiffs paid to the defendant the $1,000. At the time provided for in the agreement to close the transaction the par

App. Div.]

FIRST DEPARTMENT, MARCH TERM, 1899.

ties met, but it was claimed by the plaintiffs that the defendant was not able to give a good title to the premises, and they accordingly refused to go further with it. The plaintiffs had expended for counsel fees and disbursements in the examination of the title $237.50. This action was brought to recover from the defendants the $1,000 which had been paid upon the contract, and the $237.50, the amount of expense in examining the title.

The defendant, for a counterclaim, set up substantially that he had a perfect title; that he was ready to perform; that he offered a deed which conveyed a marketable title at the time when the contract by its terms was to have been closed, but that the plaintiffs refused to accept a deed, and declined to perform the agreement on their part. He alleged further that he was then ready to perform the contract, and he asked a judgment of the court for specific performance. Issue was joined to this counterclaim by a denial of the ability of the defendant to perform, and upon those issues the parties went to trial. As the result of the trial the court determined that the defendant's title was good and marketable and free from all reasonable doubt, and dismissed the complaint and ordered a judgment for the defendant for the specific performance of the contract as prayed in the counterclaim, and from this judgment the plaintiffs appeal.

It appeared from the testimony that the premises in question were situated on the north side of One Hundred and Thirteenth street, in the city of New York, between the Boulevard and Tenth avenue. It was conceded that one Ely Moore, who was the original source from which the defendant claimed title, had been the owner of the premises. On the 16th day of November, 1827, Ely Moore conveyed the premises to Thomas Shephard and William Shephard of the city of New York. On the 26th of November, 1834, Thomas Shephard and his wife conveyed the premises to the Society of the New York Hospital, by which, on the 2d of May, 1889, the premises were conveyed to the defendant. There is no proof of any deed or transfer of title by William Shephard, the co-tenant of Thomas Shephard, or anything to show that his interest in the premises was ever actually transferred either to the Society of the New York Hospital or to the defendant, and the plaintiffs claim that this apparent outstanding title in William Shephard in the undivided half of the premises constitutes such a defect as renders the title

FIRST DEPARTMENT, MARCH TERM, 1899.

[Vol. 38. unmarketable, and justifies them in refusing to accept the conveyance which was tendered to them by the defendant The only claim of the defendant is that this interest had vested in the Society of the New York Hospital by adverse possession. Whether this claim should have been sustained by the learned justice at the Special Term is the question to be decided.

It appears that the deed of Thomas Shephard to the New York Hospital was, in terms, a conveyance to it of all the premises and not of his undivided interest. In addition, the deed contained a covenant of seizin on the part of Thomas Shephard, to the effect that he was seized of an absolute and indefeasible estate of inheritance in fee simple of all the premises, and a covenant of warranty on his part of the whole title.

It is quite probable that this conveyance, had it been followed by such possession as the statute requires to constitute an adverse holding against one's co-tenant, would have been sufficient to authorize the presumption that the Society of the New York Hospital had acquired good title to these premises. (Florence v. Hopkins, 46 N. Y. 182, 186.) But where a party claims that he is entitled to a specific performance of a contract, by which he agrees to convey lands to another, he is bound to give a marketable title; one that is free from any doubt that would interfere with the market value. (Moore v. Williams, 115 N. Y. 586.) Such a doubt always exists when, upon the proof, there is an uncertainty as to some fact necessary to sustain the title, which the judgment in the particular action will not establish against the party who is at liberty to assert the fact, so that, as the result of the judgment, it will be conclusive against him. (Vought v. Williams, 120 N. Y. 253.) To establish the fact that the title was marketable, the defendant here was bound to show, not only that there had been possession of the land for the required time, but that that possession had been of such a nature as to ripen. into a title, which should be good as against all the world. (Wihelm v. Federgreen, 2 App. Div. 483; S. C. affd., 157 N. Y. 713.) The alleged adverse possession in this case arose under a written instrument. The statute provides that to constitute an adverse possession by a person claiming title under such an instrument, the land is deemed to have been posesssed and occupied, either where it has been usually cultivated or improved, or where it has been protected

App. Div.]

FIRST DEPARTMENT, MARCH TERM, 1899. by a substantial inclosure. (Code Civ. Proc. § 370.) There was no evidence in this case that the land had been either cultivated or improved, or protected by any inclosure, before the year 1859. A witness testifies that, at that time, he knew the premises and that the grounds of the New York Hospital were always inclosed, to his knowledge. But it appears from his testimony that his recollection upon that point did not go back beyond about two years before the Civil War. No other witness attempts to give any statement of a condition of affairs, in that regard, at an earlier date. It must be assumed, therefore, that before 1859 no possession had been taken by the Society of the New York Hospital of these premises, such as the statute requires to constitute an adverse possession, and that the hospital did not actually inclose the premises until the year 1859. That year must, therefore, be taken as the origin of an adverse possession, if there was any. It is quite clear that, even if an adverse possession can be said to have commenced then, a sufficient time has not yet clapsed so that it would ripen into a title which should be said to be marketable. It is no violation of probability to say that the persons in whom are vested the title of William Shephard are not yet barred from insisting upon it, because in the absence of evidence showing what was the situation and condition of the true owner of the property at the time when the adverse possession against him commenced, it cannot be said that such possession has ripened into a title until a sufficient time has elapsed to eliminate every probable contingency, the existence of which would enable the owner to claim his rights.

But, upon the evidence shown here, no adverse possession against William Shephard or his heirs has been made to appear. Although one tenant in common grants to a third party the joint premises by a deed conveying his whole interest and thereby enabling the grantee to lay the foundation for an adverse possession, yet the mere fact that the grantee takes possession under the deed is not of itself sufficient to begin an adverse possession such as will oust his co-tenant. Before that can be begun there must be notice in fact to the co-tenant that the adverse claim is made, or there must be such open and public acts by the adverse claimant as will make his possession so visible, hostile, exclusive and notorious that notice on the part of the co-tenant of the claim adverse to his right may fairly be pre

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FIRST DEPARTMENT, MARCH TERM, 1899.

[Vol. 38.

sumed. (Culver v. Rhodes, 87 N. Y. 348.) All that appears in this case is that at a certain time the Society of the New York Hospital inclosed these lots by a fence which also included other lands to which it alone had title. The occupation, as is shown, was for purposes of cultivation. Nothing appears from which it can be inferred that these particular premises were put to any use to which any co-tenant might not have put them, or devoted to any purpose inconsistent with the right of any one who had a title to them in connection with the Society of the New York Hospital. In no aspect of the case can it be said, therefore, that this adverse possession had ripened into such a title that the purchaser should be compelled to accept it. For these reasons the judgment was erroneous and must be reversed, and a new trial ordered, with costs to the appellant to abide the result of the action.

VAN BRUNT, P. J., PATTERSON, O'BRIEN and INGRAHAM, JJ., concurred.

Judgment reversed, new trial ordered, costs to appellant to abide

event.

THE AMERICAN COPPER COMPANY, Respondent, v. GEORGE LOWTHER and Others, Appellants, Impleaded with Others.

Guaranty of a bond. not discharged because part of its consideration is represented by a credit instead of by cash.

Where two corporations enter into a contract by which one of them agrees to advance to the other the sum of $25,000, for the payment of which the latter at the same time executes and delivers a bond reciting the advance of that sum, which is the consideration for the giving of the bond, the fact that a portion of the loan is made in the form of a credit, given by the obligee to a third party, for a debt of $3,000 then presently due by the obligor to such third party who has advanced that amount to the obligor in expectation that the loan would be made, and who is indebted to the obligee in an amount greater than the $3,000 credit, does not constitute such a modification of the contract between the corporations as will discharge parties who have guaranteed the payment of the bond.

APPEAL by the defendants, George Lowther and others, from so much of a judgment of the Supreme Court, entered in the office of

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