79 N.Y. 302, Bennett v. Garlock

Citation:79 N.Y. 302
Party Name:ELIZABETH C. BENNETT, Respondent, v. WASHINGTON GARLOCK, Appellant.
Case Date:January 13, 1880
Court:New York Court of Appeals
 
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79 N.Y. 302

ELIZABETH C. BENNETT, Respondent,

v.

WASHINGTON GARLOCK, Appellant.

New York Court of Appeal

January 13, 1880

Argued Jan. 23, 1879.

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COUNSEL

Henry A. Foster, for appellant. A tax sale deed, though made without authority, if apparently valid on its face, is a sufficient foundation for an adverse possession. (Finley v. Cook, 54 Barb., 10; Hilton v. Bender, 2 Hun, 1; Blackwell on Tax Titles [3d ed.], 568, 572; Dillingham v. Brown, 38 Ala., 311; Prescott v. Nevers, 4 Mason, 326; Little v. Magginer, 2 Maine, 176; Brockett, Petitioner, 53 Id., 236; Wells v. Company, 47 N. H., 235, 260, 261.) Any deed or conveyance, though void, will lay a foundation for an adverse possession of the lands described in it. (Lessee of Clark v. Courtney, 5 Peters, 320, 354; Jackson v. Newton, 18 J. R., 355; Northrop v. Wright, 7 Hill, 477; Jackson v. Wheat, 18 J. R., 40; La Frambois v. Jackson, 8 Cow., 609; Bradstreet v. Clark, 12 Wend., 674; Bogardus v. Trinity Church, 4 Sand. Chy., 738, 739; Humbert v. Trinity Church, 24 Wend., 587, 604, 612, 613, 614, 632, 633, 638, 639, 640; Kent v. Harcourt, 33 Barb., 491.) The tax sale deed being

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fair on its face, no imputations upon the motives of the adverse holder are to be indulged, unless clearly proved. (Clapp v. Bromagham, 9 Cow., 531, 558, 559; Sands v. Hughes, 53 N.Y. 297.)A grantee always holds adversely to the grantor, as well as to all others. (Bradstreet v. Huntington, 5 Pet., 429, 448.) Even if Gray had been in possession under the mortgage, he could purchase the tax title for himself, and in hostility to Mrs. Bradstreet's rights, and of all others who claimed to own the premises. (Hilton v. Bender, 2 Hun, 1; Nellis v. Lathrop, 22 Wend., 121; Ten Eyck v. Craig, 62 N.Y. 406, 422, 423; Link v. Doerfer, 42 Wis., 391; 24 Am. Rep., 417; Lessee of Ewing v. Burnet, 11 Pet., 41.) The giving of a lease is, of itself, an assertion of title in the lessor. (Wilklow v. Lane, 37 Barb., 244, 248; Northrop v. Wright, 7 Hill, 477, 488.) One holding adversely, or otherwise, may purchase an outstanding title in support of his own, whether he doubts the validity of his previous title or not, and such purchase or purchases will not affect the right or title under which such purchaser previously claimed to hold. (Northrop v. Wright, 7 Hill, 477, 489, 495; Burhans v. Van Zandt, 7 Barb., 92, 102; Jackson v. Newton, 18 J. R., 355.) An actual, exclusive, open and notorious possession under a claim of title adverse to all the world, gives a good title. (Cahill v. Palmer, 45 N.Y. 478; Kent v. Harcourt, 33 Barb., 491; La Frambois v. Jackson, 8 Cow., 589; Bogardus v. Trinity Church, 4 Sandf. Chy., 634.) A possession adversely commenced is presumed to continue adverse so long as the possession is maintained. (Bogardus v. Trinity Church, 4 Sandf. Chy., 744; 1 Greenl. Ev., § § 41, 42; Wilkins v. Earle, 44 N.Y. 192.) The question of adverse possession is a question of fact, to be proved by the claims, acts, motives, etc., of the disseizor, all of which are questions to be determined by the jury, or by the court when tried by the court alone. (Code of Procedure, § 272; Code of Civil Procedure, § 1338; Booth v. Pierce, 28 N.Y. 465; Bradley v. Aldrich, 40 Id., 504; Case v. Phelps, 39 id., 164, 167.)

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Where a trust is to the trustees and their heirs and assigns, if the trustee or trustees die, their heirs take the trust and hold it until the court shall see fit to appoint another. (Wood v. Martin, 38 Barb., 473; 44 N.Y. 249; King v. Donnelly, 5 Paige, 46; McCarty v. Orphan Asylum, 9 Cow., 437.)A trust to sell lands for the payment of debts necessarily conveys the fee of the lands to the trustees whether the words "heirs of the trustees" are inserted or not. (1 Perry on Trusts [2d ed.], § 315; Anderson v. Mather, 44 N.Y. 249; Bain v. Matteson, 54 Id., 666.) The adverse possession having barred the legal estate of the trustees, it necessarily barred also any interest or estate, legal or equitable, which Martha Bradstreet had to the premises. It certainly barred all her interest as cestui que trust. (1 R. S., 729, § 60; Nicoll v. Walworth, 4 Den., 385; 4 Kent Com., 310, note a; Amery v. Lord, 5 Seld., 403; Knox v. Jones, 47 N.Y. 389, 396; 4 Kent, 233-310; Greenl. Cruise, 388, tit. 12, chap. 2, § 4; 2 Greenl. Cruise, 268, tit. 31, chap. 2, § 59; Lewellin v. Mackwort, 15 Vin. Ab., 125; Angel on Lim., § § 166, 473; Cholmondely v. Clinton, 2 Merw., 361; Hovenden v. Ld. Annesly, 2 Sch. & Lef., 629; Coleman v. Walker, 3 Metc. [ Ky.], 45; Smilie v. Biffle, 2 Barr., 152; Wyck v. East India Co., 3 P. Wms., 310.) No estate or interest in the "residue" ever vested in the plaintiff during the life of her mother. (Silvester v. Wilson, 2 Tr. Rep., 444, 451; Neville v. Saunders, 1 Vern., 415; Knox v. Jones, 47 N.Y. 390; Hotchkin v. Humphrey, 2 Mad. Chy., 374; Bidefield v. Record, 2 Sim., 354; Young v. Robinson, 8 Jur. [ N. S.], 825; Graves v. Simpson, 10 Id., 609; Collier v. McBean, 34 Beav., 426; Fortescue v. Satterthwaite, 1 Ired., 566; Hargrave v. Cartier, 3 Vez. & B., 79; Doe ex dem. v. Hopkinson, 5 Add. & Ell. [ N. S.], 223; Smilie v. Biffle, 2 Barr., 52.) The plaintiff was incapable of taking a vested remainder under the trust deed as one of the right heirs of Matthew and Martha Codd. (1 Coke's Inst., 22,b; Fenwick v. Mitford, 1 Leon., 182; Counden v. Clarke, Hob., 30 a, 34 a; Cholmondely v. Clinton, 2 Mer., 222-223;

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Godolphin v. Abingdon, 2 Atk., 57; Read v. Erington, Cro. Eliz., 321; Greenl. Cruise [2d ed.], 328, Pl.; 3 R. S. [ 2d ed.], 577; Rogers v. Rogers, 3 Wend., 521; Campbell v. Rawdon, 18 N.Y. 416, 417; Sheridan v. Howe, 4 Keyes, 569; Moore v. Little, 41 N.Y. 71, 72.) The statute of uses of 1787 (1 Greenleaf's ed. of the Laws 361, and 1 N. R. L., 72) has no application in this case. (Chudleigh's Case, 1 Coke's Rep., 126; 2 Washb. on Real Prop. [ 4th ed.], 410, Pl. 11; Ref. Dutch Church v. Veeder, 4 Wend., 492.) As already appears there was no life estate created by the deed in Mr. and Mrs. Codd; but only a life interest in the net profits and avails, and a remainder, either legal or equitable, could not be limited on that. (Gerard's Title to Real Estate, 217; Doe v. Consadine, 6 Wall., 474; Leslie v. Marshall, 31 Barb., 567; Fearne on Remainders, 281; Goodright v. Cornish, 1 Salk., 226; Doe v. Carlton, 1 Wilson, 225, 226; Harris v. Barnes, 4 Bar., 2157, 2162; 4 Kent's Com., 199; 2 Blk. Com., 164; Jackson v. Robbins, 16 J. R., 537, 589; Preston v. Funnel, Willes' Rep., 164; Pell v. Brown, Cro. Jac., 590.) During the life of her mother plaintiff had not, at common law, even an estate "in expectancy," but a mere "possibility of a use." (3 R. S. [ 2d ed.], 570, 571; Bouvier's Law Dictionary, "Springing use"; 4 Kent's Com., 295, 298; Moore v. Little, 41 N.Y. 93; Bouvier's Law Dict., "Possibility; " 1 Hilliard on Real Prop., 34; Pelletrieu v. Varick, 11 Wend., 110; Jackson v. Waldron, 13 Id., 178; Edwards v. Varick, 5 Denio, 664, 691; Boynton v. Hubbard, 7 Mass., 112; 10 Coke's Rep., 51; Miller v. Evans, 19 N.Y. 384, 390, 395; 3 Washb. Real Prop. [ 4th ed.], 94, Pl. 15.) As plaintiff had no vested estate in remainder, as to whatever other right or interest which she had in the trust estate, she was cestui que trust to the trustees, as well as to the trust for the maintenance, and she should compel the trustee to protect that interest. (Perry on Trusts [2d ed.], § § 15, 17, 326, 346, 357, 621, 816; Griffin v. Ford, 1 Bosw., 124; Wormley v. Wormley, 8 Wheat., 421; Hubbard v. Medbury, 53 N.Y. 99;

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Willard on Real Estate, 158, 172.) Under a legacy to the issue of A., all descendants are entitled, and take per capita as joint tenants. (Davenport v. Hanberry, 3 Ves., 257; Leigh v. Norbury, 13 Id., 340, 344; Bouvier's Law Dict., "Per Capita. ")

Edward C. James, for respondent. If, by the trust deed of May 24, 1808, plaintiff became vested with a future or expectant estate in the lands, whether legal or equitable, then a title by adverse possession against such estate during the continuance of the life estates was impossible, as no possession can be deemed adverse to a party who has not, at the time, the right of entry and possession. (Webster v. Cooper, 14 How. [ U. S.], 488; Carver v. Jackson, 4 Pet., 1; Christie v. Gage, 71 N.Y. 189, 192-193; Pratt v. Pratt, 6 W. Dig., 407; Devyr v. Shaefer, 55 N.Y. 446; Jackson v. Schoonmaker, 4 J. R., 390; Jackson v. Sellick, 8 Id., 262; Jackson v. Johnson, 5 Cow., 74; Jackson v. Mencius, 2 Wend., 357; Clark v. Hughes, 13 Barb., 147; Randall v. Rabb, 2 Abb. Pr., 307; Wells v. Prince, 9 Mass., 508; Wallingford v. Hearl, 15 Id., 471; Doe v. Edmonds, 6 M. & W., 295; 1 R. S., 725, § 32.) A trustee takes that quantity of interest only which the purposes of the trust require and the instrument creating it permits. The legal estate is in the trustee so long as the execution of the trust requires it, and no longer, and then it vests in the person beneficially entitled.

(Nichol v. Walworth, 4 Den., 385, 388; Norton v. Norton, 2 Sandf., 296, Poor v. Considine, 6 Wall., 458, 471; Adams v. Adams, 6 Q. B., 860, 866; Perry on Trusts, §§ 319, 320; 1 R. S., 730, § 67; Bellinger v. Shafer, 2 Sand. Chy., 293.) There was no proof of any debts existing against the grantors at the time this deed was made, and hence this trust is not shown to have ever had vitality. (Heardson v. Williamson, 1 Keen, 33, 41; Ward v. Barbury, 18 Beav., 190; Selden v. Vermilyea, 3 N.Y. , 525; Kettel v. Osborn, 3 T. & C., 45; James v. Bion, 2 Sim. & Stu., 600.) The presumption of payment will attach after twenty

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years, notwithstanding the trust. (Martin v. Gage, 9 N.Y. , 398; Laws of 1875, chap. 545; Carter v. Barnardiston, 1 P. Wms., 518; 1 Salk., 153.)As...

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