Green v. Horn

• Decision Date: 11 March 1913
• Parties: GREEN et al. v. HORN.
• Court: New York Court of Appeals Court of Appeals

207 N.Y. 489

101 N.E. 430

GREEN et al.

v.HORN.

Court of Appeals of New York.

March 11, 1913.

Appeal from Supreme Court, Appellate Division, Third Department.

Ejectment by James Green and others against Charles F. W. Horn . From a judgment of the Appellate Division, Third Department (146 App. Div. 896,131 N. Y. Supp. 1118), affirming a judgment dismissing the complaint, entered on a directed verdict, plaintiffs appeal. Reversed, and new trial granted.J. A. Kellogg, of Glens Falls, for appellants.

Charles M. Parsons, of New York City, for respondent.

MILLER, J.

This is an ejectment action to recover possession of two parcels of land in the village of Lake George, Warren county, known, respectively, as Middle village lot No. 7 and the ‘Waldorf.’ The plaintiffs have the record title to both parcels . The defendant in his answer disclaimed title to or possession of said lot No. 7, but averred that he had title to the other parcel by adverse possession, and that the conveyance thereof to the plaintiff was void for champerty. The trial court directed a verdict for the defendant on the latter ground, and that ruling presents the only point for consideration on this appeal, as the respondent concedes that the evidence bearing on the other defense at least presented a question of fact.

It is admitted that at the time of the conveyance to the plaintiffs of the parcel in dispute the defendant was in actual possession of it. The champerty act in force when said conveyance was made (Real Property Law; Laws of 1896, c. 547, § 225) provided: ‘A grant of real property is absolutely void if, at the time of the delivery thereof, such property is in the actual possession of a person claiming under a title adverse to that of the grantor.’ The phrase ‘claiming under a title’ is unlike the phrase ‘under a claim of title’ in the statute of limitations (sections 369 and 371 of the Code of Civil Procedure), and it is the settled law of this state that, to avoid a deed under the former statute, the adverse possession must be under a claim of some specific title, not necessarily, of course, a good title, but still a paper title as distinct from a general assertion of ownership, a title ‘under some written instrument purporting to convey the lands to the claimant, or else some judgment, decree or executed process of a court.’ Arents v. Long Island Railroad Co., 156 N. Y. 1, 50 N. E. 422, and see cases cited by Judge Haight on page 8 of 156 N. Y., on page 424 of 50 N. E., also Higinbotham v. Stoddard, 72 N. Y. 94, and Matter of Department of Parks, 73 N. Y. 560. The decision, therefore, turns on the construction and effect of the deed under which the defendant claims.

William Caldwell, the common source of title, died May 1, 1848, possessed of a large tract of land in the town of Caldwell, at the head of Lake George. By a codicil to his will he devised the residue of his real estate in the said town, which included two tracts, known as lot 20, Garrison Ground and Ft. William Henry Fields, to Eliza McGillis, Catherine Elizabeth Van Courtlandt, and Helen Louisa Beck; the devise to McGillis being of a life estate with remainder to her issue. Commissioners appointed by an interlocutory judgment in a partition suit allotted lot 20, Garrison Ground, to McGillis and the remaindermen, and Ft. William Henry Fields to Van Courtlandt and Beck, then Parmalee, in common. Their report was confirmed by an order entered August 30, 1852, and the said parties thereupon entered into the use, occupation, and enjoyment of the lands respectively allotted to them. Ft. William Henry Fields adjoined lot 20, Garrison Ground, on the east. A highway, known as the Glens Falls and Lake George plank road, hereinafter referred to as the plank road, ran through Ft. William Henry Fields a short distance east of and nearly parallel with the division line between it and lot 20, as that there was a narrow strip about 30 feet wide at its northern and 60 feet at its southern extremity belonging to Ft. William Henry Fields, but lying between the plank road and lot 20. From the said northern extremity the extension of the plank road was known as Canada street, but there was a jog at that point, the west line of Canada street beginning at the northeast corner of lot 20, and being an extension of its east line. At some time, it does not appear precisely when, lot 20 was laid out into village lots, a map of which, known as the ‘Black’ map, was filed in the Warren county clerk's office October 17, 1888. That map delineated the plank road as an extension of Canada street at its full width-in other words, as including said narrow strip, and as having for its west line the east line of lot 20. Eliza McGillis at sundry times quitclaimed to various grantees different small lots or subdivisions of lot 20. In December, 1881, by her attorney in fact, she made a quitclaim deed to Elizabeth G. Horn, the defendant's mother. It is plain, as will be seen later, that the description in that deed was intended to include only two small lots in the southeast corner of great lot 20-i. e., lot 6 and said lot 7-in which the grantor had a life estate. The part of said narrow strip between lots 6 and 7 and the plank road is the parcel in dispute.

Eliza McGillis died on the 8th day of December, 1893. Thereafter a partition suit was brought by Robert A. McGillis, one of the said remaindermen. The grantees of Eliza McGillis were joined as defendants. Final judgment was entered June 9, 1900. It recited that commissioners had set off in severalty and allotted to Maria S. Macdonell lots 4, 5, 6, and 7, and adjudged among other things that the report of the commissioners stand ratified and confirmed, and that different defendants named, including said Elizabeth G. Horn, ‘have no title or claim of title to the several properties or premises quitclaimed to them or their grantors or devisors by the said Eliza McGillis.’ Maria S. Macdonell conveyed said lot No. 7, and the respective devisees of the said Van Courtlandt and Parmalee, to whom Ft. William Henry Fields was allotted under the partition of 1852, conveyed the parcel in dispute to the plaintiff Green by deeds dated February 1, 1905. On the same day he executed a declaration of trust in both of the said parcels in favor of himself and the other plaintiffs. On January 8, 1902, the defendant's mother made a warranty deed to him purporting to convey, among other parcels of land, the following: ‘Also that piece or parcel of land conveyed to Elizabeth G. Horn by quitclaim deed from Eliza McGillis, by deed dated December 24th, 1881, and recorded in the clerk's office of Warren county, in Liber 41, at page 218, which is referred to for a more particular description.’ The description in the McGillis deed, therein referred to, was as follows: ‘All that piece or parcel of land situate, lying and being in the town of Caldwell, Warren Co., state of New York, being a portion of lot twenty (20) Garrison Ground, beginning at south-east corner of steam mill lot being north sixty-one (61) degrees fifteen (15) minutes west, running thence west of north five (5) chains thirteen (13) links to the east line of Dieskau street, thence south three (3) degrees west along the street five (5) chains twenty-five (25) links, thence north eighty-six (86) degrees east four (4) chains twenty-five links to plank road, thence north twenty-eight (28) degrees thirty (30) minutes east two (2) chains fifty (50) links, containing one (1) acre twenty-five (25) rods more or less.’ The defendant asserts that the reference to the steam mill lot fixes the starting point in the west line of the plank road; and, invoking the rule that monuments control quantity, courses, and distances, he argues that the description goes to the plank road and takes in the parcel in dispute, in which the grantor had no interest whatever, and that, while no title to that parcel was conveyed, his possession of it under that deed rendered the plaintiffs' deed champertous.

[3] The defendant and his grantor were bound to know that McGillis had and could convey only an estate for her life. Acer v. Westcott, 46 N. Y. 384, 7 Am. Rep. 355;Sweet v. Henry, 175 N . Y. 268, 67 N. E. 574.

[4] Their possession, being in subordination to and in privity with the title of the remaindermen, did not become hostile even after the termination of the life estate, in the absence of some positive act of disclaimer brought home to the latter. Zeller's Lessee v. Eckert, 45 U. S. (4 How.) 289, 11 L. Ed. 979;Jeffery v. Hursh, 45 Mich. 59,7 N. W. 291;Doyle v. Mellen, 15 R. I. 523, 8 Atl. 709;Jackson v. Graham, 3 Caines, 188;Jackson v. Sternbergh, 1 Johns. Cas. 153;Jackson v. Scissam, 3 Johns. 499;Jackson v. Stiles, 1 Cow. 575;Jackson v. Burton, 1 Wend. 341;Burhans v. Van Zandt, 7 N. Y. 523;Whiting v. Edmunds, 94 N. Y. 309;Bedlow v. New York Floating Dry Dock Co., 112 N. Y. 263, 19 N. E. 800,2 L. R. A. 629. The defendant's deed purported to convey only what was conveyed by the deed to his grantor. It was adjudged in effect in a suit in which his grantor and the plaintiff's...