Opinion
March Term, 1899.
W.H. Dunn, for the appellants.
John H. Booth, for the respondent.
It is conceded that, on the 20th of April, 1866, Angelina Moore became the owner of the property in question, consisting of a house and a small lot. At that date, she, with her husband, Samuel M. Moore, conveyed the same by warranty deed to John C. Biglow and Joseph Biglow. The plaintiff was the wife of Joseph Biglow, and claims to have acquired his interest in the property by virtue of a deed from him to F.H. Murray, under date of March 19, 1867, witnessed, but not acknowledged or recorded, and a deed from Murray to the plaintiff, March 15, 1892. Joseph Biglow died in 1896. Some time in the year 1867, Ruby Biglow, the mother of the grantees, John C. and Joseph and of the appellants, moved into the house upon the premises and remained there till her death in 1892, and since then the appellants have occupied the premises. They claim under the will of Ruby Biglow.
The referee finds that Ruby Biglow entered into possession as the tenant of John C. and Joseph Biglow. This finding is, we think, sustained by the evidence, and is fatal to the claim of the appellants that they have title by adverse possession. (Code Civ. Proc. §§ 368, 373; Whiting v. Edmunds, 94 N.Y. 309.)
But it is said that the deed to plaintiff was void under the statute that provides that every grant of lands shall be absolutely void if, at the time of its delivery, the land is in the actual possession of a person claiming under a title adverse to the grantor. (R.S. pt. 2, chap. 1, tit. 2, art. 4, § 147; Laws of 1896, chap. 547, § 225.) This statute, however, does not apply, as Ruby Biglow made no claim under any specific title. ( Arents v. The Long Island R.R. Co., 156 N.Y. 1.) The deed to plaintiff bears date prior to the death of Ruby Biglow, and, being witnessed, it is presumed to have been delivered at its date, although it was not acknowledged until afterward. ( People v. Snyder, 41 N.Y. 397, 402.)
It is further, in substance, claimed that, by reason of the possession of appellants, the plaintiff cannot maintain partition. In Weston v. Stoddard ( 137 N.Y. 119) it was held that, under section 1532, relating to actions of partition, a present right of possession was sufficient, and that an adverse possession by a co-tenant, if it had not existed long enough to extinguish the plaintiff's title, would not prevent the maintenance of the action. An occupation by another than the owner is deemed to be under and in subordination to the legal title, unless there is an adverse possession for twenty years. (Code Civ. Proc. § 368.)
In the present case, the referee found that the possession of the appellants and their predecessor in interest was never adverse to the title of the plaintiff. There was evidence pointing to that conclusion. Upon sufficient evidence, it was found that the entry of Ruby Biglow was as tenant under John C. and Joseph, and it did not appear that any claim by her, or by appellants, that they held or claimed adversely, was ever brought home to the knowledge of the plaintiff or her predecessors in interest. ( Sand v. Church, 152 N.Y. 174, 181.)
The appellants cannot, we think, justly complain of the form of the action or of the method of trial. They consented to a reference and cannot now say that the case was not referable. The provisions of sections 1537 to 1543 of the Code of Civil Procedure have been construed to mean that all parties having or claiming to have an interest in real estate may be made parties to an action of partition, and that all controversies as to the title may be disposed of in the action. ( Best v. Zeh, 82 Hun, 232; affd., 146 N.Y. 363; Weston v. Stoddard, supra; 1 Fiero Spec. Act. [2d ed.] 176.)
We find no valid exception to rulings on evidence. The deed from Joseph Biglow to Murray was not acknowledged, but there was a subscribing witness. He, as well as the grantor, was dead. The handwriting of each was proved. This was sufficient to admit the deed in evidence. No error is apparent in excluding the question to the witness John C. Biglow whether, in receiving the deed from Angelina Moore, he was acting in the capacity of executor of his father's estate. What the transaction in fact was was allowed to be shown.
No good reason is apparent for reversing the judgment, and it should be affirmed.
All concurred.
Judgment affirmed, with costs.