Wright v. Phipps

• Citation: 90 F. 556
• Parties: WRIGHT v. PHIPPS et al. ATTRILL v. WRIGHT. DEGRAUW v. ATTRILL. ATTRILL v. DEGRAUW. GATES v. SAME.
• Decision Date: 29 October 1898
• Court: U.S. District Court — Eastern District of New York

90 F. 556

WRIGHT v. PHIPPS et al. ATTRILL v. WRIGHT. DEGRAUW v. ATTRILL. ATTRILL v. DEGRAUW. GATES v. SAME.

United States Circuit Court, E.D. New York.

October 29, 1898

THOMAS. District Judge.

In 1809, William Cornwell, being seised thereof, conveyed to Nathaniel Ryder a strip of land containing about 200 acres and comprising at that time the westerly end of Rockaway Beach, the westerly boundary being the inlet or gut. Since that date by the action of the water, several hundred acres have been added to the westerly end of the strip. Such deed was not recorded, and seems to have been forgotten, or neglected until it was found by Judge Morris Fosdick, in his office and recorded in 1879, under the circumstances hereinafter stated. In 1814, Ryder conveyed to the state of New York the westerly portion of the 200 acres, which, with the additions above mentioned, contain the land in controversy. The deed to the state appears to have been recorded in the office of the secretary of state in 1835, out of its chronological order but there is no evidence that any of the parties to the present controversy, or any of their agents, had knowledge of such deed or record, until the year 1884, when the state of New York asserted a claim to the land. In 1830 proceedings were taken under the statute to foreclose a mortgage given by Ryder to Cornwell for a portion of the purchase money of the 200 acres conveyed to Ryder by Cornwell, which resulted, on 7th May, 1831, in a sale of such portion thereof as lay east of the land so conveyed to the state, to Rothery Ryder, son of Nathaniel Ryder, and Henry Hewlett. There is no evidence that the state of New York ever took possession of the land conveyed to it, but the United States, by the acquiescence or permission of the state, took control thereof, or a portion thereof, and erected a blockhouse thereon for the purposes of the war of 1812. Such control thereafter ceased, and the blockhouse, falling into disuse, finally disappeared so completely that its precise location is not ascertainable. But the land conveyed to the state was, in a general way, spoken of in that community, and described in surveys, as lands of the government or of the United States. Nathaniel Ryder, although deprived in 1831 of the title of the eastern portion of the land purchased by him, lived in the house thereon, as he had lived theretofore, near to the time of his death, in 1832, which is hereafter considered. In Ryder's deed to the state he reserved the right 'at all times to take and carry away, for his own use, the drift sedge' thereon; and he did, intermediate his conveyance to the state and his death, use the land for pasturing his cows and sheep, as such land lay open and undivided by inclosure from his remaining property, and other persons at time used it for grazing purposes. It is doubtful to what extent Nathaniel Ryder claimed an interest in the land conveyed to the state after such conveyance, but there is evidence that he frequently spoke of having sold to the government. After Ryder's death, in 1832, the land in question (the land conveyed to the state) continued until the times hereinafter mentioned, as it had after its disuse by the United States, to lie uninclosed and exposed, a long stretch of sandy waste, useless for agriculture, and unsought for the purpose of residence. There is no parol evidence that Ryder's heirs used it or exercised any rights over it, or claimed to have any interest in it, nor is that any evidence that Ryder's heirs, after his death, continued to live in the house on the eastern portion. But the fact of such possession of the land in question if evidenced (1) by the Durland partition proceedings; (2) by the judgment in Littlejohn v. Attrill and others, to which attention is hereafter called.

On the 19th of March, 1872, the secretaries of the treasury and of war of the United States united in a lease to Aaron A. Degrauw, whereby, in consideration of an annual payment of one dollar per year, Degrauw was permitted to occupy such land until requested by either secretary to relinquish the whole or any part thereof. Somewhat previous to this, Degrauw had erected a hut on the property, and after the lease exercises some dominion over the land. Although Degrauw had obtained a lease from the United States, yet there were no evidences of a record title in the United States, and Degrauw was advised by Mr. Clinch, his counsel, that the title of the land was apparently in the heirs of Nathaniel Ryder, and thereupon one Durland was engaged to obtain releases to himself from such heirs, and the latter did thereafter obtain conveyances from such heirs of 587/840 of said premises, and thereupon, in 1873, brought an action of partition against such of Ryder's heirs or their successors as appeared to hold the remaining interest. In 1874 it was referred to Edgar A. Hutchins, who was shortly before a law partner of, and at the time had his office with, Mr. Clinch, who was also Durland's attorney, and such referee reported, upon evidence adduced before him, which evidence has not been discovered for the purpose of this action, that 'Nathaniel Ryder, Sr., died intestate April 12, 1832, seised and possessed' of the land in question; and 'that he had held adverse possession of said real estate, and has claimed to be the owner thereof and exercised rights of ownership therein, from a period preceding the year 1892 to the time of his death, and that at the time of his death he was living of said property. ' The referee took the evidence of Ruloff Van Clief and wife, Jesse Craft, and Richard Ryder and Smith Ryder, respectively, son and grandson of Nathaniel Ryder, and Judge Morris Fosdick, all of whom were old residents of that section and acquainted with the property. The particular facts stated by these witnesses severally are not shown, but presumptively the referee, from one or all of them, obtained the information embodied in the report. The partition action was conducted with due observance of legal requirements, and all matters known to be of record were laid before the referee.

It is suitable now to consider what facts apparently were known which could be communicated to the referee. In the first place, the conveyance in 1814 by Nathaniel Ryder to the state of New York was unknown to the parties, and the deed to Nathaniel Ryder by Cornwell was not present, and there is no evidence that its existence was within the knowledge of the parties or any of them. Judge Fosdick produced it some years later, on the sale in 1879 from Wright to Smith, and then stated to Mr. Hall, the lawyer examining the title for the proposed purchaser, that 'he had found that deed, and that he supposed he had mislaid it or it had been lying about, and he had neglected to record it. ' Nevertheless the former ownership of Nathaniel Ryder was known, at least his title was inferable, both from the former occupation of all of lot No. 1 and from the mortgage given to Cornwell for the purchase money. It was undisputed that Nathaniel Ryder lived until 1831 on the eastern part of lot No. 1, and, while it might be presumed that he was deprived of that portion as a result of the foreclosure action in 1831, there was no evidence of record that Ryder had alienated the western portion of lot No. 1 (the land in question), which at one time he had owned and occupied to the degree that such land was useful for occupation, which land formed an uninterrupted continuation of the portion of lot No. 1. It is apparently an incorrect finding that Ryder lived on the immediate premises up to about the time of his death. His grandson states that he died in his former home; but there is other evidence that in fact he died in the house of his son, who lived on lot No. 2, east of lot No. 1. But, if he died in his former home, that was not on this portion of lot No. 1, if the same be considered independently of the eastern portion. Moreover, it is probably an incorrect conclusion that Ryder held adverse possession of said real estate, and claimed to be the owner thereof, and exercised right of ownership therein, for a period preceding the year 1802 to the time of his death. Even if this be untrue, in the light of the present knowledge of the history of the property, it is not necessarily an evidence of fraud that testimony of this nature should have been given to the referee, and that he should have found accordingly. The reference to the date of 1802 probably arose from the fact that some of the land involved in the Cornwell partition proceedings (see commissioners' report) was theretofore owned by Ryder, and upon this it is inferable that the claim and finding was based that Nathaniel Ryder's interest in lot Not. 1 antedated that action. Whether Ryder had adverse possession was a conclusion for the referee, founded upon the facts presented. For instance, he found that Ryder claimed to own it. As it appeared that he was at one time in possession of all of lot No. 1; that his possession was not interrupted, save as the United States used some portion for a blockhouse; that he executed a mortgage upon it; that he used it for pasture,-- it is not a proof of fraud that the referee found that he (Ryder) claimed to own it, and that he held it adversely. The fact must have appeared that Nathaniel Ryder, at some time subsequent to 1809, had occupied and claimed to own the premises in connection with the other part of lot No. 1; and yet it was not clear, by record evidence, where he obtained it, or what he had done with the western portion, and so the doctrine of adverse possession was resorted to for the purpose of sustaining his title. But it does not appear that Judge Fosdick is responsible for any of the conclusions of the referee, and, even if it were...