Jones v. Chamberlain

• Decision Date: 10 April 1888
• Citation: 109 N.Y. 100,16 N.E. 72
• Parties: JONES v. CHAMBERLAIN et al.
• Court: New York Court of Appeals Court of Appeals

109 N.Y. 100

16 N.E. 72

JONES

v.CHAMBERLAIN et al.¹

Court of Appeals of New York.

April 10, 1888.

Appeal from general term, supreme court, Fifth department.

Possessory action, brought by Griffith Jones against Henry W. Chamberlain and others. Judgment for plaintiff, and defendants appeal.

Mr. Waring, for appellants.

J. F. Parkhurst, for respondent.

DANFORTH, J.

The plaintiff sought by this action to recover 359 acres of land situate in the town of Alleghany, Cattaraugus county, known as lot 3, section 1, township 1, range 5, in the Holland Company survey, and for an accounting for oil taken therefrom by the defendants, and, pending the action, an injunction and receiver. The defendant the Bradford Oil Company answered, setting up a general denial of the allegations of the complaint. The other defendants, Fay and Chamberlain, put in a similar answer. The issues were brought to trial before a jury, who by their verdict found that the plaintiff is owner in fee of the lands described in the complaint, and entitled to recover the possession thereof. Exceptions taken upon the trial were ordered to be heard in the first instance at the general term. Upon argument in that court, the exceptions were overruled, and judgment ordered upon the verdict, and ‘that plaintiff also recover of said defendants his damages for withholding the same, and that defendants account to the plaintiff for the rents, issues, and profits of said lands, and the oil and other valuable products taken therefrom, and for the value thereof; such accounting to be had before a referee to be appointed by the court.’ It also appointed a receiver of all the said property involved in this action, and of the rents, issues, and profits, and products thereof, and of the damages for withholding the same, with the usual powers and duties. It was also ordered and adjudged that the defendants assign, transfer, and deliver to said Campbell, as such receiver, all the said real and personal property involved in this action, and all the rents, issues, and profits, oil and products, therefrom, and the damage for withholding same, and all oil certificates or other papers, books, and writings relating thereto; and said receiver is hereby authorized and empowered to sue for, collect, and receive the same, and continue the business of oil producing, and, upon notice to the plaintiff's attorney, sell the oil, or any part thereof. No appeal was taken by the Bradford Oil Company; but Henry W. Chamberlain, Louis G. Chamberlain, and Ella V. Gleason, devisees and executors of George Chamberlain, deceased, and Frederick Fay, appealed from so much of the judgment ‘as awarded the possession of the premises in dispute to the plaintiff.’ The plaintiff claimed title under a deed from the comptroller of the state, dated January 22, 1874, and proved that the defendants were in possession of the premises at the time of the commencement of the action. On the part of the defendant, it was made to appear that the sale of lot 3, in pursuance of which the comptroller's deed was executed, was made on the 23d day of September, 1871, for the following unpaid taxes, viz.: 1863, state and county tax, $8.95; 1863, highway tax, $2.96; 1864, state and county tax, $10.94; 1864, highway tax, $2.31; 1864, bounty tax, $23.68; 1865, state and county tax, $12.79; 1865, highway tax, $5.80; 1865, school tax, $12.22; 1865, bounty tax, $16.11.

It was urged as a defense to the action (1) that the proceedings prior to the sale and conveyance were illegal, and insufficient to show compliance with the statutes in regard to such matters; and (2) that, if those proceedings were in every respect regular, the plaintiff failed to consummate his title by not serving the statutory notice to redeem upon one Hill, who, the defendants claimed, was in the actual occupancy of the premises at the time specified in the statute for the serving of such notice. But the question raised by the second of these propositions was submitted to the jury, with direction that in case they ‘found, from the evidence, that Hill was not in the actual occupancy of the land, or some part of it, on that day, then their verdict should be for the plaintiff; but that, in case they found he was in the actual occupation of the whole or part of the lot on that day, they should render a verdict for the defendants.’ There was evidence from both parties upon this question. That Hill did not live upon the lot, but resided elsewhere with his family, was a conceded fact. He resided upon lot 1, and the argument of the appellant is to show that as lot 1 adjoined lot 3, (the lot in dispute,) the two lots were to be regarded, not separately, but as one. Such might be the inference under certain circumstances. Land may be in the possession or occupancy of a person within the meaning of a statute, although he resides elsewhere. But there was evidence showing, not only that Hill did not live on lot 3, but also that he in no sense occupied or possessed it. Such property as he at one time had upon it he removed; and there was not only an actual abandonment of any possession which he before had, but there was an intent to abandon and altogether quit and forsake it. Indeed, the case states that the testimony given tended to show that Hill, before the 23d of September, 1873, in anticipation of the conveyance by the comptroller, entirely abandoned the property. If there was evidence tending to any different conclusion, it was not uncontroverted; and we think the learned trial judge committed no error in submitting the question to the jury. Such was the opinion of the learned court at general term, and, concurring in that conclusion, the verdict of the jury must be deemed conclusive upon that point in favor of the plaintiff.

Under the other proposition, it is argued by the learned counsel for the...