Baker v. Oakwood

• Decision Date: 07 October 1890
• Citation: 123 N.Y. 16,25 N.E. 312
• Parties: BAKER v. OAKWOOD.
• Court: New York Court of Appeals Court of Appeals

123 N.Y. 16

25 N.E. 312

BAKER

v.OAKWOOD.

Court of Appeals of New York.

Oct. 7, 1890.

Appeal from supreme court, general term, fourth department.

This was an action to recover the undivided fourth part of about 73 acres of land in the possession of the defendant, a cemetery association. In 1835, Richard Raynor, who is the common source of title, purchased a farm of about 154 acres, of which the lands now held by the defendant are a part, and, being the owner of this farm in fee, mortgaged the same to Willet and Henry Raynor to secure his bond for $15,000. July 15, 1836, Richard Raynor conveyed the undivided half of this farm to the plaintiff's father, Charles B. Hargin, and one John S. Baker, and they executed back to him their bond and mortgage for $14,425 for the whole purchase money. January 13, 1837, Richard Raynor assigned the last-mentioned bond and mortgage to Willet and Henry Raynor, the holders of the bond and mortgage first mentioned. September 1, 1838, Willet and Henry Raynor, still holding the first bond and mortgage of $15,000, assigned the same with other bonds and mortgages and collaterals to the Mutual Life & Trust Company of New York as collateral security for the payment of their own bond and mortgage given as security for a loan of $23,000 made by the company to them. On the 28th of May, 1838, Charles B. Hargin conveyed his one-fourth of the lands back to Richard Raynor, and on the 29th of March, 1839, Baker conveyed his one-fourth to Hargin. This is the interest, and under this title the plaintiff claims. On the 20th of March, 1840, Richard Raynor conveyed the whole of the farm of 154 acres, without excepting the undivided quarter that had been conveyed to Hargin by Baker, to Willet and Henry Raynor, who took possession. The Mutual Life & Trust Company of New York was then the holder by assignment of the $15,000 mortgage given on the whole farm by Richard Raynor. On the 5th of July, 1845, the said Mutual Life & Trust Company assigned to Horace White of Syracuse the debt it held against Willet and Henry Raynor, being the loan above mentioned, and also the $15,000 mortgage, and all other collaterals held for the debt, for the consideration of $7,500, as expressed in the assignment. On the 5th of August, 1845, Horace White assigned the $15,000 bond and mortgage to Hamilton White of Syracuse for the consideration expressed of $3,500, but did not assign the debt of Willet and Henry Raynor to the trust company, nor the other collaterals thereto. On the next day, August 6, 1845, Hamilton White, the last assignee of the said bond and mortgage, commenced the foreclosure of the same in his own name by advertisement. The lands were sold November 1, 1845, and he became the purchaser for the sum of $3,000, as appears by the record. No notice of the proceedings to foreclose the mortgage was served upon the widow or heirs of Charles B. Hargin. March 22, 1848, Hamilton White, having become the owner through the foreclosure sale, conveyed the premises to Alfred H. Hovey, for the consideration expressed of $7,000. May 29, 1849, Hovey conveyed the lands to Lucy Maria Raynor for the consideration of $10,000, as expressed in the deed. She took possession under this deed, deriving her title from the $15,000 mortgage which covered the whole farm of 154 acres as her deed did. On the 23d of September, 1859, Lucy Maria Raynor and her husband, Henry Raynor, conveyed about 73 acres of the land, being the premises in question in this suit, to the defendant, by warranty deed, for the consideration of $15,000, which defendant paid. Since that time, and down to the commencement of this action, in January, 1886, over 26 years, the defendant has held and occupied the premises adversely, claiming title under the deeds and conveyances above mentioned. In 1840, Charles B. Hargin, the plaintiff's father and grantee of an undivided one-fourth of the premises under the deed from Baker, died intestate in the city of New York where he then resided. He left a widow and three children who inherited his interest, subject to his widow's dower, as follows: Letitia C., the plaintiff, born October 31, 1831, became of age October 31, 1852, married in 1854, was divorced, remained single some time, and married again. The second child was Charles Hargin, born July 31, 1834, was never married, and died July 8, 1861, intestate. The youngest, Mrs. Julia Pomeroy, was born December 18, 1838, married Pomeroy, February 23, 1858, had a child born June 5, 1859, who died in August, 1859, and she herself died in December following, intestate, and shortly before she was of age. Her husband is still living. The widow of Charles B. Hargin is still living, and, before she executed the deed hereafter mentioned, the title of the one undivided quarter of the premises of which her husband died seised had, as the plaintiff claims, descended under the statute, and become vested in the plaintiff and her mother as follows: The plaintiff took one-third of her father's estate, or one-twelfth of the whole, directly from her father, upon his decease. The plaintiff's mother took an estate for life in the two shares that descended to the other two children, upon their death, with a remainder in fee to the plaintiff as the survivor. Before the commencement of this action, and on the 16th of October, 1885, the widow of Charles B. Hargin conveyed to her daughter, the plaintiff, all her estate and interest in the premises, in virtue of which the plaintiff claims that the life-estates that descended to her mother are merged in the remainders, and the plaintiff, as remainder-man, has a present right of action. The cause was tried by the court, and judgment rendered for the defendant, which has been affirmed by the general term. It was held that, as to the one-third which the plaintiff took directly from her father, she could have sued for it on becoming of age, and not having done so she is bound now by defendant's adverse possession, and that, as to the two-thirds in which she inherited a remainder, the mother could have recovered a life-estate on the death of the other two children; that the mother, after 20 years of adverse possession by the defendant, lost this estate, and it became vested in the defendant, and consequently, when the deed of October, 1885, was given, the mother had no estate to convey.

W. S. Andrews, for appellant.

Geo. F. Comstock, for respondent.

O'BRIEN, J.

The findings of the court below are to the effect that, upon the death of Charles B. Hargin, in 1840, the undivided quarter of the lands in question descended to his three children, of whom the plaintiff is one, subject to the widow's dower. By the subsequent death of two of the children without issue and intestate, the estate which the ancestor had at the time of his death became vested in the plaintiff as the surviving child, subject to a life-estate in two of these shares in the widow. But it is also found that since 1849, when Lucy Maria Raynor purchased the whole farm from Hovey, and went into possession, the whole premises have been held adversely, first by Mrs. Raynor under her deed, and since 1859 by the defendant under its conveyance from Mrs. Raynor. The heirs of Hargin became tenants in common with the other owners, and the finding of adverse possession implies that the possession of Mrs. Raynor was such as to amount to an ouster of her co-tenants. Whatever may be said in regard to the nature of Mrs. Raynor's possession, whether hostile or not, there can be no doubt that the possession of the defendant from the time that it purchased the land in 1859 to the time of the commencement of this action was of such a character as to justify the conclusion that it commenced in an ouster of the heirs. It was the case of the purchase of a public corporation, organized in perpetuity, of lands to be devoted to the burial of the dead, followed by inclosing, improving, and laying out the land in such manner, and devoting it to such use, as was utterly inconsistent with every other claim of title; and this was a termination of the joint tenancy, if it was not terminated before. Zapp v. Miller, 109 N. Y. 51, 15 N. E. Rep. 889; Millard v. McMullin, 68 N. Y. 345;Florence v. Hopkins, 46 N. Y. 182. The effect of this adverse possession upon the life-estate of Mrs. Hargin is the most important question in this case. The courts below held that its effect was not only to cut off her remedy for its recovery, but to extinguish the estate itself, and vest it in the defendant. If the contention be correct that the defendant, in virtue of its adverse possession, took to itself the life-estate, then Mrs. Hargin, when she executed to the plaintiff the deed of October, 1885, had nothing to convey, and that deed was ineffectual. The learned counsel for the plaintiff, perceiving the importance of this point, has addressed himself to its solution with most commendable learning and industry. Perhaps the highest praise that can be awarded to his argument is to record the fact that it drew from his distinguished adversary a generous, but well-deserved, compliment at the bar. We cannot, however, assent to the proposition that adverse possession of land for a period sufficient to bar an action merely cuts off the owner's remedy without affecting the estate. While this principle is not without the sanction of judicial authority, and that of text-writers, we think that the tendency of modern decisions in this and most of the states, as well as in the federal tribunals, is against it. It was held that the effect of the English statute of limitations (21 Jac. 1, c. 16) was to bar the remedy, but not to divest the estate. Davenport v. Tyrrel, 1 W. Bl. 679; Beckford v. Wade, 17 Ves. 87; Scott v. Nixon, 3 Dru. & War. 388, 403; Incorporated Society v. Richards, 1 Dru. & War. 258, 289; Trustees v. Dougall, 1 Macn. Hind. Law, 317; Digby, Real Prop. 159; 3 Cruise, Dig. 430. But the construction placed by the English...