Cook v. Travis

Headnote

In an action of ejectment, it appeared that in 1818 the title to the premises in question was in Peter Young; who was the common source of title of the respective parties. In October of that year, S. S. Munn recovered a judgment against Young and A. Cutler, which was docketed on the 24th of October; and in November following, John Mowatt, jun. recovered a judgment against the same persons, which was docketed on the 12th of that month. Executions were issued on these judgments; and under that issued upon the Munn judgment, the premises were sold toH. D. Barto the latter part of December, 1819', . or early in 1820. Under the one issued upon the Mowatt judgment, the premises were sold to W. Platt, about the same time. Peter Young was then in possession of the premises, and continued in possession until 1850, claiming title under a life lease from Jacob J. and John J. Young. No deed was executed to Barto, by the sheriff, until April 22, 1853. Barto conveyed to Jacob J. Young and John J. Young, by deed dated November 7, 1820, which was recorded the 17th of the same month. In the description of the premises in this deed, it was stated that they were purchased by Barto, at a sale by the sheriff, under the Munn judgment. John J. Young conveyed to Andrew J. Cutler and others, by deed bearing date May 22, 1847, proved June 27,1840, and recorded the 8th of October thereafter. The defendant was in possession of the premises as tenant of Andrew J. Cutler. A deed was executed by the sheriff to Platt, on the sale to him, dated February 2, 1820, acknowledged the same day, and recorded the 26th of February, 1820. Platt conveyed the premises to J. S. Beebe, by deed dated February 21, 1820, and recorded April 2, 1828. Beebe conveyed to A. Cutler, by deed dated February 27,1828, and acknowledged and recorded November 11, 1828. A. Cutler executed a mortgage of the premises to the N. Y. Life Insurance and Trust Co. dated November 29th, 1832, which was recorded on the 5th of December, 1832. This mortgage was foreclosed, and the premises were all sold under the judgment in the foreclosure suit, to the mortgagees, who took a deed from the sheriff

dated the 13th and recorded the 14th of February, 1852. The Trust Co. conveyed to E. Baker, by deed dated April 12th, 1852, acknowledged the 19th and recorded on the 31st of the same month; and the plaintiff deduced title from Baker.

Held, 1. That A. Cutler, at the time of the execution of the mortgage by him to the N. Y. Life Insurance and Trust Co., having a regular paper title to the premises, duly recorded, through the judgment of Mowatt against Peter Young, and the records not showing any deed from the sheriff on the sale to Barto, the mortgagees were, under the recording acts, entitled to a preference for the mortgage over the title under the Munn judgment; unless at the time of taking the mortgage, they had notice of that title.

2. That the record of the deed from Barto to Jacob J. and John J. Young, containing a recital of the sale under the judgment, was not such notice. And that there being no record of a conveyance to Barto, and no evidence of notice that he made any claim to the premises, the)' were not required to search for a conveyance by him, and were in no way affected by the record of such conveyance.

3. That Peter Young being the acknowledged owner of the premises, in fee, and his entire title having been sold and conveyed under the Mowatt judgment, the possession by him, thereafter, being of the same character as before, without any apparent change, the fair inference, and legal presumption, from his continued possession, was that he was in under Platt, the purchaser and grantee of the sheriff, and those coming under him.

4. That the mortgage lien must be preferred to the title of the grantees in the deed from Barto.

5. That there was no such adverse possession as would avoid any of the conveyances in the plaintiff’s chain of title. That Peter Young, while in possession, was estopped by the'sale and conveyance under the Mowatt judgment, and by the decree in the foreclosure suit, to which he was a party, from setting up a title in himself; and that Henry and A. J. Cutler going into possession under Peter Young, they were estopped, in like manner with him, from disputing the title sought to be enforced by the plaintiff.

6. That the mortgage having priority, notice to the mortgagees, of the hostile title, at the time of the sale under the decree in the foreclosure suit, or, subsequently, to any person claiming under that sale, could not affect their title under the mortgage. That the protection which the mortgagees might claim, could not be impaired by a subsequent notice; and that it extended to all persons claiming title through the mortgage, whether they had notice at the time of the purchase or not.

It is a general rule that the possession of land is notice to others of the possessor’s title. But the rule is not universal. The notice is merely an inference; it may not arise in some cases; it may be repelled in others; and in others it may be restricted to some particular title or claim.

The rule, like all rules of circumstantial evidence, must be governed by the particular circumstances of each case, and have a reasonable operation.

THIS action was brought to recover possession of States 100 acres of lot 44, Ovid, commenced August 1, 1854. The complaint stated that Baker, being the owner of the premises, agreed with Daniel Tyler to exchange the Lodi farm for Tyler’s farm in Hector; and on the 21st of February, 1853, they exchanged conveyances accordingly, for their respective farms ; Baker, covenanting to give and insure to Tyler possession of the Young farm, and deeds were recorded. Tyler was to pay $1400 on the exchange, of which he paid $800. That Baker and Murlin, who were partners in trade, becoming embarrassed, conveyed, March 25, 1853, all their property to Cook, Carson and Murlin, the plaintiffs, in trust, to pay creditors. That the defendant took possession of the Young farm and refused to give it up to Tyler, and Tyler therefore brought an action in the supreme court for relief, and to have the bargain of exchange rescinded, and the Tyler farm reconveyed by the assignees, and the supreme court gave judgment accordingly ; and the assignees, under the order of the court, conveyed to Tyler the Hector farm, and Tyler conveyed the Peter Young farm to the assignees, who became seised. That the defendant entered upon the possession and withheld it. The defendant answered, 1st. A general denial. 2d. That Andrew J. Cutler was the owner of the Peter Young farm, and on the 24th May, 1854, leased to the defendant till 1st May, 1854, and the defendant received and held possession as his tenant. 3d. That the plaintiffs, and those under whom they held, had not been seised or possessed within 25 years. 4th. That A. J. Cutler, and those under whom he held, had held adversely for more than 25 years, and the deeds under which the plaintiffs claimed were therefore void. 5th. That Tyler, claiming title and possession, served notice upon Cutler under the act to determine conflicting claims, requiring Cutler to appear and assert his title, <fcc. That Cutler appeared and pleaded, December 7,1853, that he had been in possession for three years, and that issue was still pending. The present action was tried before Judge Welles at the Seneca circuit, September, 1855. On the trial the following facts were shown: November 9, 1818, John Mowatt, jun. obtained a judgment in Tompkins common pleas,

docketed the 12th, against Abraham Cutler and Peter Young, for $799 and costs, upon which an execution was issued to the sheriff of Tompkins, in which county these premises then were, tested May 27, 1819, returnable September 7, and received by the sheriff July 13, 1819, to collect $463.83 and interest. The sheriff, under this execution, sold the Young farm, which was purchased by William Platt, and the sheriff conveyed to him as purchaser, February 2,1820, all the right and title of A. Cutler and Peter Young, in the usual form. This deed was duly acknowledged on the same day, and recorded February 26, 1820. William Platt conveyed to J. S. Beebe, February 21, 1820; deed was proved by A. Cutler, subscribing witness, before a commissioner, and. .recorded April 20, 1828, and Beebe conveyed to Abraham Cutler, February 27,1828; deed recorded August 11, 1828. In August term, 1828, an ejectment suit was commenced in the name of James Jackson, upon the demise of Abraham Cutler, against John Stiles, Peter Young tenant, and judgment for the plaintiff entered and recorded, signed and filed February 20,1829, upon which a writ of possession was issued to the sheriff of Seneca, returnable October 31, 1829, and returned by the sheriff, “ served as required.” Asgill Gibbs was the plaintiff’s attorney in the ejectment suit, and was a witness on the trial, and testified that the suit was brought by him for Abraham Cutler, to recover the 44 Ovid 100 acres then occupied by Peter Young, and that he issued the writ of possession and delivered it to the deputy sheriff, with directions to deliver possession of the premises to Abraham Cutler. On the 29th of November, 1832, Abraham Cutler and Catherine his wife executed a bond and mortgage to the New York Life Insurance and Trust Company, the mortgage being for the premises in question, conditioned for the payment of $4000, payable December 1, 1842. The mortgage also covered and conveyed a farm of 150 acres in Hector. The mortgage contained a covenant from Abraham Cutler for the payment of the money with semi-annual interest, with the usual power of sale in case of non-payment, and also a proviso that if default should be made in the payment of the semi-annual interest for thirty days, the

mortgagees might foreclose, or enter a decree for the whole amount of principal and interest. This mortgage was recorded December 5, 1832. On the 31st of March, 1843, the New York Life Insurance and Trust Company filed a bill in chancery to foreclose this mortgage, against Abraham Cutler and wife, and making, among others, the heirs of Noadiah Shannon, the Seneca County Bank, John De Mott and Peter Young, parties defendants. Notice of lis pendens was filed in the Seneca county clerk’s office, March 29,1845. Abraham Cutler and wife did not appear or answer in that suit, and a decree in the usual form was taken against them pro confesso. The Seneca County Bank and Peter Young appeared and put in separate answers in the foreclosure suit. The separate answer of Peter Young set forth, in substance, that the execution of the bond and mortgage by Abraham Cutler and ' wife to the Trust Company was admitted as set forth. That the defendant Peter Young claimed an interest in the Lodi farm, (premises in question,) part of mortgaged premises. That he became the purchaser in 1798, and had a perfect title, and had been ever since in possession, and denied that Abraham Cutler had the title. That Peter Young became security for Abraham Cutler for goods purchased in New York, and among others, to John Mowatt, jun., of whom Cutler, in the fall of 1816, purchased goods on credit to the' amount of about §400, for which Young became security. That Mowatt obtained judgment against Cutler and Young in 1818 or 1819, upon which execution was issued to the sheriff of Tompkins, and Young’s farm advertised and sold, and bid off by William Platt, who took the sheriff’s deed from N. Halsey. That in 1821 Platt, in consideration of having the Mowatt judgment paid, conveyed the premises to J. S. Beebe, who, about 1825, in consideration of the payment of the Mowatt judgment, and a judgment in favor of S. B. Munn, against Cutler and Young, in a case where Young had also become liable as security for Cutler, conveyed the Young farm and other property to Abraham Cutler and Peter Young. That when Cutler and wife mortgaged to the New York Life Insurance and Trust Company, he had no other

title than that derived from Beebe. That as advised by counsel, the judgment of Mowatt against Cutler and Young being upon a demand on which Young was only security, Cutler had no right to purchase for his own benefit, and held the title in trust for Young, of which the complainant had notice, and therefore acquired no lien. That at the time of giving the mortgage, Cutler owned a farm in Hector, also included in the mortgage, which was sufficient in value to pay the mortgage. That in-1837 Cutler and wife conveyed this farm to H. Shannon, whose heirs were made defendants, expressly subject to the payment of $2500 of the mortgage due the Trust Company, and he insists that the Hector farm should be first sold and the Peter Young farm released. This foreclosure suit was brought to a hearing upon pleadings and proof before L. H. Sandford, assistant vice chancellor, and a decree entered September 30,1846, by which it was ordered that the Hector farm should be first sold to the amount of $2500, and the interest to accrue, and § of the costs, and the Peter Young farm should be next sold to the amount of $1500 and its arrear of interest and § of the costs, and in case of any deficiency of the Hector farm, the balance was made chargeable on the Peter Young farm, and for any final deficiency in both, Abraham Cutler was decreed to be personally liable. Peter Young was also made personally liable for the extra costs by reason of his defense. The decree was duly enrolled February 10, 1852.

This decree was affirmed by the supreme court at general term, on appeal, September term, 1849. The Peter Young farm was sold under this decree by the sheriff of Seneca, and bid off by the Hew York Life Insurance and Trust Company for $500, and a sheriff’s deed given to the company February 13,1852, and recorded February 14,1852. The sheriff’s report was filed and an order of the supreme court in equity entered, confirming report, March 6,1852. The Trust Company sold and conveyed the Peter Young farm to Elijah Baker, April 12, 1852, and the deed was recorded April 21,1852. Baker and wife conveyed to Daniel Tyler, February 21,1853, for the consideration of $6360, with covenants of seisin and warranty; deed

recorded March 7,1853. On the same day Tyler and wife conveyed to Baker the Tyler farm in Hector, for the consideration of $4900; deed recorded March 1, 1853. On the 24th of March, 1853, Baker and Murlin executed a deed of assignment to Cook, Carson and Daily, the plaintiffs, recorded the same day. This deed recited that Baker and Murlin were partners, (with others;) that they had purchased the interest of the other partners and assumed payment of the debts of the old firm, and were unable to pay their debts, and therefore conveyed all their real and personal estate, whether copartnership or individual property, to assignees, in trust to sell and pay their debts. Daniel Tyler afterwards brought his action in the nature of a bill in equity, in the supreme court, against Baker the assignee, and other parties, asking to have the exchange rescinded, and the money paid in exchange repaid, on the ground that Baker had failed to perform his covenants, and that Tyler could not get possessionand on the 13th of June, 1854, the supreme court gave judgment in Tyler’s favor accordingly, declaring the exchange null and void, and the assignees were decreed to reconvey to Tyler his Hector farm, and that Tyler thereupon should reconvey to the assignees the Peter Young farm, and the assignees were to repay the money paid on the exchange. In pursuance of this decree the farms were re-exchanged, and Tyler and wife conveyed the Young farm to Cook, Carson and Daily, the assignees, June 15, 1854, by deed recorded July 29. The defendant was in possession at the commencement of this suit, under a lease from Andrew J. Cutler, commencing May 12, 1854, and ending April 1, 1855. On the 27th of June, 1845, Peter Young, for the consideration of $2000, as expressed in the deed, paid by the grantees, conveyed-the Young farm, being the premises in question, to Catherine Cutler during her life, and after her death, to her eleven, children and heirs, Catherine, Sarah M., Minerva, Martin and Clinton, Mary Jane, Eliza Ann, Henry D. B-, Andrew J. and Julia Cutler, always excepting and reserving to Peter Young, grantor, the said premises, to hold and keep possession thereof during his natural life, for his use and benefit exclusively.

This deed was recorded June 27, 1845. Henry D. B. Cutler, by quitclaim deed, on the 27th of January, 1849, conveyed to Andrew J. Cutler all the grantor’s undivided eleventh part of the premises in question, describing it as the States hundred 44 Ovid, “ which has been owned or been in the possession of Peter Young, and which Henry D. Barto purchased at sheriff’s sale under an execution issued out of the -supreme court, on a judgment in favor of Stephen B. Munn, against Peter Young and Abraham Cutler, and which Barto conveyed to John J. Young and Jacob Young, by deed of November 7, 1820, recorded,” &c., and being the same land conveyed by John J. Young to Andrew J. Cutler and others, (naming the children and heirs of Catherine Cutler,) May 22, 1847. On the 20th of August, 1835, Peter Young and wife mortgaged the premises, being the farm now in possession of Peter Young and wife, to secure the payment of $1075 in bond of P. Young to John De Mott, recorded September 4th, 1835. This was the plaintiff’s case as shown on the opening.

The defendant’s counsel, on opening, stated that Peter Young, prior to 1818, was the owner of the premises; that S. B. Munn recovered a judgment against Young and Abraham Cutler, issued execution, and the premises were bid off at sheriff’s sale by H. D. Barto, and the sheriff gave, or was to have given, a deed; that Barto conveyed to John J. and Jacob Young, of New Jersey, who took possession under this deed, and continued in possession by Peter Young, their tenant, who had a life lease, till they sold to Andrew J. Cutler and the other Cutlers, May 22, 1847, and since then Andrew J. Cutler by himself, or tenants, had been in possession. That the defendant held under Andrew J. Cutler. The plaintiff’s counsel objected to the evidence of the facts stated in opening, on the ground that the defendant and A. J. Cutler were estopped from denying Peter Young’s title, or from setting up an adverse title. The evidence was admitted, subject to this objection. The defendant thereupon, under- objection, proved the following facts: That S. B. Munn, October 24, 1818, recovered judgment, by confession on bond and warrant of attorney, against Abraham

Cutler and Peter Young, in the supreme court, for $2000 debt and costs, the specifications of indebtedness then required by statute being, in general, items for goods, &c., and therefore supposed to be defective. That an execution was issued to the sheriff of Tompkins, who levied on and sold the Peter Young farm, which was bid off by H. D. Barto, who was attorney for Munn, as his trustee, about February 20, 1820. Barto had taken the acknowledgment of the deed of the plaintiff to Platt on the 2d of February. Before the sale the attorney for Mowatt served an order for the stay of proceedings on the Munn judgment, with notice of motion to set it aside, on account of the defective specification. It was therefore concluded to buy in the Mowatt judgment, which was done by J. S. Beebe, as agent for Munn, and the motion and stay of proceedings being therefore waived, Barto went on with the sale under the Munn judgment, and Barto, as agent of Munn, bid in the premises at sheriff’s sale, and Barto, without taking a deed from the sheriff, conveyed the premises to John and Jacob Young, on the 7th of November, 1820 ; deed recorded November 17. Barto never saw them, but delivered their deed to Van Horne of Ovid, who paid $600 consideration, as their agent. Barto, under the plaintiff’s objections, testified that this conveyance was made by the consent of Beebe. Beebe who was called as a witness by the plaintiffs, testified that he never knew of any conveyance from Barto to John and Jacob Young, and never directed or authorized Barto to give any such deed. Barto testified that he never received a deed from the sheriff under the Munn judgment. The only deed executed by the sheriff under that judgment was after the commencement of this suit, when the sheriff, at the solicitation of Abraham Cutler, executed a deed prepared for him by Cutler’s counsel, at their office. This deed bore date April 22,1853, and when executed was delivered over directly to Abraham Cutler, Barto being present. The object in giving this deed was stated at the time to be to supply a defect in the title. At the time of the sale by the sheriff, Peter Young was in possession of the premises. This deed was objected to when offered in evidence, for the reasons stated by

the plaintiff’s counsel in the case, and was admitted under objection. Catherine Cutler, the wife of Abraham, was the daughter of Peter Young. John J. Young quitclaimed to the children of Abraham Cutler, May 22, 1847; deed recorded October 8, 1849. A quitclaim deed from Eliza Ann, Catherine, Sarah, Minerva, Abraham, jun., M. Y. Burén (Cutler,) De Witt Clinton (Cutler,) Mary and Julia Cutler, to Abraham J. Cutler, dated September 1, 1851, releasing all the right of grantors to the premises in consideration .of $1, was given in evidence. Abraham Cutler (the elder) died July 1, 1854; Peter Young died August 5, 1855. Peter Young was examined de bene esse as a witness by the defendant, Sept 23,1854, and his deposition read in evidence. Young testified (under objections of the plaintiff’s counsel) that at the time of the deed from Barto to Jacob and John Young, they gave to Peter Young and wife a lease during their respective lives of the Young farm, the lease being now lost or mislaid. That he had never made any bargain with any one to give up his interest in the life lease. That when Jacob and John J. Young conveyed to the Cutler heirs, nothing was done about Young’s interest in the life lease. That when he left the farm on the 9th of November, 1849, he gave up possession to Henry and Andrew J. Cutler, who agreed to support him and give him every thing he wanted for a living, and bury him when he was dead. That before the farm was bid off by Barto, Young claimed under a life lease, and before that under a title. Peter Young’s wife died about a week before Peter Young gave up possession to Henry and A. J. Cutler. The plaintiff proved by J. S. Beebe that he was agent of S. B. Munn, and placed his demand against Cutler and Young in H. D. Barto’s hands for collection. That after being satisfied that Munn’s judgment was imperfect, he told Mr. Platt, Mowatt’s attorney, to go on and sell under the Mowatt judgment, and he would pay him the judgment and take the title, which he did, and afterwards (February 28, 1828) sold the property to Abraham Cutler and gave him a deed. This was done under Barto’s advice. That he never authorized Barto to convey to John and Jacob

Young, as he had the title in his own hands. There was some conflicting testimony as to the fact whether Peter Young or Abraham Cutler were in possession of the Young farm, which it is not deemed material to state.

The defendant’s counsel moved for a nonsuit, on the grounds: 1st. That the defendant had shown an adverse possession in Andrew J. Cutler and those from whom he derived title, for a sufficient length of time to bar the claim of the plaintiffs. 2d. That there was an adverse possession shown at the time of the execution of the several deeds under which the plaintiffs claimed; that John and Jacob Young were in possession by their tenant, Peter Young. 3d. Notice was given to the Trust Company of the claim of Andrew J. Cutler at the time of the sheriff’s sale under the decree. 4th. Baker had notice of this adverse claim when he purchased. A. J. Cutler was in possession by A. Brodrich, his tenant. 5th. Tyler had notice of Cutler’s title before he purchased. 6th, That no docketing of the judgment of Mowatt had been proved. 7th. That neither the plaintiffs, nor those under whom they claim, had been in possession since 1819, and that the action was barred by the statute.

His honor the judge refused the motion for a nonsuit, and directed a verdict for the plaintiffs, subject to the opinion of the supreme court,' at general term, on a case' to be made by the plaintiffs, with leave to either party to turn the case into a bill of exceptions or special verdict.