Freedman v. Oppenheim

This action was brought to compel a specific performance of a contract to exchange real estate, bearing date the lltli day of September, 1901. The defendant refused to accept the plaintiffs’ title on the grounds: First, that there was outstanding in one Mary Jane Houseman a one-fifth interest in the property, and second, that one J ames M. Cruser, who was the.owner of the other four fifths of the premises in question, liad never conveyed the same. Upon .the first trial of this action it appeared that in 1834 one Jacob Houseman was the record owner of the premises in question, and that he died intestate, leaving five children, four of whom conveyed their interest in 1844 to Moms H. Cruser, but no conveyance was found from his daughter Mary Jane Houseman. There was, however, evidence from one Susan L. Houseman, a niece of Mary Jane Houseman, to the effect that Mary Jane died at the'age of twelve years and was buried in the Staten Island cemetery which belonged to the church on the terrace, and that she had often seen the tombstone marking her grave; that it remained until four or five years ago when the graveyard was removed to another place; that the source of her knowledge was the statement of her father and mother and the family talk which she had often heard. If she died after her father and at the age of twelve years, she must have died intestate, unmarried and without issue, thus leaving her four remaining brothers her only heirs at law, whose title passed under their conveyance in 1844. As to the second objection made, to the effect that James M. Cruser never conveyed the title vested in him, it appears that he resided in Gloucester, Virginia, and that on the second day of June, 1845, a power of attorney purporting to have been executed by him, in which he appointed Edwin II. L’Amoureux his attorney in fact to convey the premises. This power of attorney was acknowledged before Edward E. McLane, a notary public in the city of Uorfoik, Virginia, who certified that on the second day of June in the year 1845, “personally appeared before me the within named James Monroe Cruser, to me known and acknowledged the above

Inasmuch as the trial court has not based its conclusions of law upon the record title shown by the plaintiffs, the alleged defects upon which the former reversal was based may not now be raised. Ilad they been raised by appropriate findings we should hesitate about condemning the record title, for the evidence with reference to the death of Mary Jane Houseman at the age of twelve years was sufficient to authorize a finding of fact to that effect, and as to the power of attorney to L’Amoreux and the deed executed by him which were made in 1845, nearly sixty years before the trial of this action, the court might have found, under the circumstances, that they were ancient documents entitled to be admitted in evidence, notwithstanding the alleged defects in the acknowledgment and certificate referred to. Indeed, it has been held repeatedly that a deed appearing to be of the age of thirty years nuiv be given in evidence without proof of execution if such account of it be given as may, under the circumstances, afford the presumption that it is genuine. (Enders v. Sternbergh, 2 Abb. Ct. App. Dec. 31 -36; 3 Johns, Cas. 283 ; Hewlett v. Cock

Hpon the question of adverse jiossession it will be found, upon comparing the findings with the requirements of the Code of Civil Procedure (sections 369-370) that the plaintiffs’ claim of title under a written instrument for upwards of twenty years, in every respect conforms to the requirements of the Code. It is contended, however, that the defendant ought not to be compelled to accept a title which is dependent upon parol testimony, and our attention is called to the case of Sims v. McElroy ( 160 N. Y. 156 ). It is true that in that case there was a comment from the judge writing the opinion, to the effect that a party ought not to be compelled to take title to premises where lie has got to defend his title by parol evidence, but in no place in the opinion does it appear that title by adverse possession clearly established does not in some instances furnish a marketable title. This question was fully considered in the case of Heller v. Cohen ( 154 N. Y. 299 -311). In that case FIartix, J., in delivering the opinion of the court stated : “ There are cases where title by adverse possession may, and will, be upheld. If there is no disputed question of fact, and the possession has been clearly adverse and undisturbed for the required period, the title maj’- be sustained. * * * To establish title by adverse possession, it must be shown that the person holding the possession did so in open hostility to the rights of the true owner.” It is quite true, as the learned judge remarked in connection therewith, that titles by adverse possession are not looked upon with favor by persons contemplating the purchase of property; but he concedes that there are cases in which the title will be sustained, and the question here is al to whether the adverse possession in this case is such as to make the title of the plaintiffs

The order of the Appellate Division should be reversed and the judgment of the trial court affirmed, with costs in all courts.

Cullen, Ch. J., O’Brien, Edward T. Bartlett, Vann and Chase, JJ., concur; Willard Bartlett, J., not sitting.

Ordered accordingly. •