Opinion
September Term, 1901.
William Hazlitt Smith, for the appellant.
F.E. Tibbetts, for the respondents.
With legal title in the plaintiff the right to possession follows unless the defendants have established a legal or equitable claim superior to the plaintiff's title. The possession of the defendants was not even that of a licensee. There is no claim of permission to occupy any portion of the land except a small strip off from the north end and as to that the claimed permission is not shown to have been given by any one connected with the railroad who had any authority to give the same. There is, therefore, no such possession under any claim of title as can make the deed to the plaintiff champertous. ( Arents v. L.I.R.R. Co., 156 N.Y. 1; Crary v. Goodman, 22 id. 170; Higinbotham v. Stoddard, 72 id. 94.)
No title can be claimed by adverse possession because the land was occupied by the railroad company until the foreclosure of the mortgage in 1889, except the small strip, and as to that there was no occupation by defendants before that time under any claim of title.
That the deed from Diven was obtained by false representations is immaterial. If the defendants have any equitable rights to such land, the possession of the defendants at the time of the giving of the deed was constructive notice of such rights and those equitable rights were superior to plaintiff's, whether the purchase was made in good faith or bad. If the defendants had no equitable rights at the time, the fraud of the plaintiff in the procurement of the deed is of no concern to them, as a fraudulent deed can only be avoided by the party defrauded or some one in legal privity to him.
The last defense urged by the defendants is that they had some rights growing out of their redemption of the land from the sale for unpaid taxes. Whatever right an occupant may have to redeem from a sale for unpaid taxes, we are referred to no statute and no authority which gives to such occupant upon such redemption any title or interest in the land. He is given no lien upon the land for the moneys paid. His redemption, therefore, is simply for the protection of such right of occupancy as he may have independently of such redemption. The mere fact, therefore, of the redemption from this sale for unpaid taxes gives to the defendants no interest in the land or no right to occupancy as against the deed given by the owner of the land to the plaintiff.
But to give force to such redemption defendants further claim that their redemption of this land was under a promise made by Diven, the owner of the land, that adjoining owners who redeemed from such sale for taxes might have the right to possession of the lands sold. There is no finding by the court that such a promise was made to defendants or made generally by Diven nor that the redemption by defendants was made upon the faith thereof. Upon a careful review of the evidence, however, I think that such findings would be justified. But the defendants are here met with the objection that no such defense is pleaded. Defendants have pleaded that while in possession of the land they redeemed, but there is no allegation that such redemption was upon the faith of any promise made to the effect that a redemption by them should give to them an interest in the land. Upon the offer to prove that defendants relied upon such a promise in redeeming the land, the objection was duly made that such fact was not pleaded. This objection was improperly overruled and the fact was sworn to that the defendants redeemed in reliance upon such an assurance. But a recovery must be secundum allegata et probata. This judgment cannot be sustained upon proof of any matters not alleged, to which proof objection was duly and properly made. Whatever support, therefore, the defendants might claim from these facts, if properly pleaded, such support must be denied to them by reason of their failure to allege such defense.
We conclude, therefore, that the judgment must be reversed and a new trial granted, with costs to the appellant to abide the event.
All concurred.
Judgment reversed on the law and facts and new trial granted, costs to appellant to abide event.