Kennedy v. Smith

at hand, the premises last referred to, or the greater part thereof, were acquired by Michael Roberts in 1850 and are described in the deed as follows: “ Commencing at a point in the south line of said lots and the center of the Abbott Road, one chain and 81 links west from the southeast corner of said lot 51 and running thence north 25 degrees, 15' east 10 chains; thence north 74 degrees and 3/4 west, 2 chains; thence south 25 degrees and 15', 10 chains to the center of the Abbott Road; thence south 74 degrees and 3 /4 east along the center of the Abbott Road 2 chains to the place of beginning, containing 2 acres of land.” As aforesaid, there were other conveyances to Roberts. On June 26, 1857, Michael Roberts and Louisa, his wife, conveyed, by the description last above given, said premises to George Fix. He also purported to convey additional land to said Fix, but as near as I can ascertain the exceptions from the conveyance, as found in the deeds, except much of the second described parcel, at least to such an extent as to leave the rectangular piece above referred to as having its southeast corner at the junction of Abbott road and South Park avenue. On the 26th day of November, 1857, said George Fix and wife gave a deed to Louisa Roberts of lands, by a description exactly the same as the one used in the conveyance to Fix except that in the first described parcel in the deed to Fix is found “ one chain of 81 links west from the southeast corner of said lot No. 51,” and in the deed from Fix and wife to Louisa Roberts it reads “ one chain and 81 links west from the southwest corner of said lot No. 51.” In the complaint the same line is given as “ one chain, eighty-one links to the southwest corner.” The question presented here does not depend wholly on a correct interpretation of the foregoing deeds, as will later appear. It should, however, be borne in mind that at the time of the transfer to Fix these deeds were supposed to cover all of the lands owned by Michael Roberts, except the property in dispute which is the rectangular piece having its southeast corner at the junction of Abbott road and South Park avenue. Michael Roberts died intestate in June, 1862. He died on these premises where he was residing with his wife, the said Louisa Roberts, a boy fourteen years old by his former marriage, and two younger girls, the issue of the marriage with said Louisa. The widow continued to carry on the business and support her family alone until March 7, 1864, when she married one John Stamp. There were children, issue of this marriage, but only descendants of children of Michael Roberts are antagonistic to the claim of the plaintiffs. The youngest of the children of Michael Roberts became twenty-one years of age in 1877. The stepson of Louisa, William Roberts, went west when a young man, married, and is the ancestor of

one branch of these defendants; the other defendants descended from the two daughters, except where husbands or wives, surviving, are made defendants. After the death of Michael Roberts until the marriage of Louisa to Stamp she carried on the business, occupied the property, and treated it as her own; after her second marriage as aforesaid, she and her husband carried on the business, extended it, and made improvements and repairs at a considerable expense; paid taxes and insurance, and openly exercised authority and control over-the property. This continued until 1893 when they moved into another house, and thereafter Louisa Roberts Stamp rented the property and received the rents. During her occupancy large paving taxes were levied against the property by the city of Buffalo, which were paid by Louisa Stamp. One building was erected partly on the west half and partly on the east half of this property. She had negotiated for the sale of the property, but a sale was not made. John Stamp died in 1900, after which his widow, Louisa, attended to these matters until she died in 1919. It appears from the record that all of the children shared, more or less, in the fruits of her effort, labor and industry. The stepson* William, had been advanced by her sums at various times, to a greater amount than his father was worth in his lifetime. Louisa Stamp left a last will and testament, in and by which she disposed of an estate of about $30,000, including the property in dispute, the value of which was conceded upon the trial to be $5,000. After her death these plaintiffs rented the property, paid taxes and insurance thereon and treated it as part of her estate. There came a time when the plaintiffs had an opportunity to sell the property, the whole piece, and from the search and the plat incorporated in the same it was discovered that there was an apparent flaw in the title of the deceased to the east part of said premises. This piece of land had always been inclosed by a fence and there was no line of demarkation separating the two parts. This action was brought by the executors for the purpose of determining where the title rested. The descendants of Michael Roberts set up the defense that Michael Roberts never parted with title to the east part. In view of the condition of the descriptions and records the plaintiffs could not claim a clear record title in their testatrix, but do assert that a title, in fact, did ripen in her by adverse possession. That the conveyances constitute a basis for the claim of color of title in Louisa Roberts Stamp cannot well be questioned, and all other facts necessary to create a title by adverse possession were found in favor of the plaintiffs. The court held that the title was in the defendants. As appears from the opinion of the trial court the decision is based

upon the relation of defendants to plaintiffs’ testatrix; that she held said premises as doweress and guardian in socage of the children and subordinate to their rights, ■ but intimates that if it was not for such relationship plaintiffs had made a case for a decision in their favor. The court finds that she claimed to be the owner, but refused to find that she believed she was the owner. I cannot reconcile this latter finding with the facts appearing in the record; it imputes a fraudulent color to the acts and attitude of Louisa Roberts Stamp, which the evidence, does not sustain. None of .the children lived on this property after 1875, and all but William lived in the vicinity of this property during the life of their mother after 1857. Until this action was commenced none of the defendants ever claimed they had any interest in the property. Adverse possession, as a legal proposition, is adverse possession,' no matter against whom it runs. The plaintiffs have proved a title by adverse possession, and the only question here is, shall we withhold its application in this case because an appeal for such holding is made to the equity side of the court? In an effort to do equity to one party we must avoid being inequitable to the other party. When the equities' are cast up between these parties the balance is found in favor of the plaintiffs. The courts have held that a title by adverse possession will hold as against heirs. As above observed, no child is asserting a claim here; there cannot be any claim of the relation of guardian in socage, or otherwise, for the last forty years. For the purpose of this action, under the circumstances appearing here, the defendants should be regarded in the light of any heirs. The title in plaintiffs’ testatrix should be upheld. (Criswell v. Noble, 61 Misc. Rep. 483 ; affd., without opinion, 134 App. Div. 994 .)

Adverse possession commenced to run in favor of plaintiffs’ testatrix before the heirs, defendants here, were born and continued until her death. (Becker v. Van Valkenburgh, 29 Barb. 319 ; Zapf v. Carter, 70 App. Div. 395 .) Plaintiffs’ testatrix acquired her title to whatever of these lands that were conveyed to her by a deed from George Fix and wife some six months after Michael Roberts, her husband, had deeded to Fix. The record does not show what arrangement existed between Roberts and Fix; the deed from Fix to Louisa Roberts six months later suggests that whatever that arrangement was, it was later assumed by Louisa Roberts, plaintiffs’ testatrix, and it must be presumed that since that time she held the whole parcel under claim of color of title. Defendants never asserted any right to or interest in this property until the commencement of this action. The right to assert such claim existed in our laws since before the youngest child of Michael and Louisa