Doherty v. Matsell

• Decision Date: 11 March 1890
• Citation: 23 N.E. 994,119 N.Y. 646
• Parties: DOHERTY et al. v. MATSELL et al.
• Court: New York Court of Appeals Court of Appeals

119 N.Y. 646

23 N.E. 994

DOHERTY et al.

v.MATSELL et al.¹

Court of Appeals of New York.

March 11, 1890.

Appeal from superior court of New York city, general term.

Ejectment by Charles W. Doherty and others against George W. Matsell, Jr., and others. From a judgment of the general term reversing a judgment for defendants at special term, and granting a new trial, defendants appeal.

Emanuel J. Myers, for appellants.

Alex. Thain, for respondents.

EARL, J.

There is no dispute that the record title to the land in question was in the plaintiffs, and the sole reliance of the defendants is upon a title by adverse possession. The facts upon which they base their claim are as follows: Prior to 1849 the land was vacant, unimproved, and unoccupied, and on the 25th day of September, 1848, in pursuance of a sale conducted for that purpose, a tax-lease thereof for a term of [119 N.Y. 647]25 years was, on behalf of the city of New York, executed to George Matsell. In that lease it is recited that the owner had neglected to pay the taxes upon the land, and that Matsell was entitled to hold the land ‘against the owner or owners thereof, and all claiming under him, her, or them, until such purchaser's term thereon should be fully complete and ended.’ It was provided in the lease that Matsell, his executors, administrators, and assigns, should be at liberty ‘to remove all the buildings and materials which he, she, or they shall erect or place thereon during said term, within one month after the expiration of the said term; but shall leave the five lots, with the streets fronting the same, in the order required by the regulations of the common council.’ In pursuance of that lease Matsell took possession of the land, erected buildings thereon, and occupied the same until the 28th day of February, 1857, when he executed a quitclaim deed thereof to Andrew H. Mickle, and at the same time assigned to him the tax-lease, subject to the rents and covenants therein contained. Mickle occupied the land, and received the rents thereof, until some time in 1858, when Matsell again resumed possession of the land, without, so far as appears in the case, any reconveyance of the land, or any reassignment of the lease to him; and he continued to occupy the land and receive the rents thereof until the 1st day of November, 1864, when he conveyed the same by a quitclaim deed to his son, the defendant George W. Matsell, Jr., who has since occupied and possessed the same. On the 30th day of April, 1883, the persons who owned the land (unless their title had been lost by adverse possession) conveyed the same to Charles Jones, for whose benefit as grantee this action was brought on the 19th day of October, 1883. There was no evidence that Mickle or that George W. Matsell, Sr., prior to the 1st day of November, 1864, ever claimed any title to the land, except under the lease, or ever did any act inconsistent with a claim of right under the lease. The court at the trial term refused to find that either Matsell, Sr., or Mickle occupied the land under a claim of title adverse to the true owners, or that they occupied claiming the entire title to the land; but, on the contrary, it found that the defendants and their grantees did not for 20 years before the commencement of the action hold the land adversely to the plaintiffs or their grantors.

It is undoubtedly true that for irregularities in the imposition of the taxes, and in the proceedings leading to the tax-sale, the lease was void. But Matsell entered under the lease, and his right to hold under it does not appear ever to have been disputed. While under such a lease he was not estopped from disputing the title of the real owners, and while during the term he could have originated an adverse...