People v. Ladew

This litigation is already venerable. It. relates to the title of Big and Little Osprey Islands in Raquette Lake. In October, 1901, an action in ejectment was brought by the People against Ladew to recover possession of the larger island. The plaintiff succeeded at Trial Term and in the Appellate Division. It rested its title on three tax deeds dated respectively in 1875, 1881 and 1884. The defendant proved title to the land as against the original owner by adverse possession. (People v. Ladew, 189 N. Y. 355 , 358.) We held that as the predecessors of Ladew were in occupation of the island when the deeds were given and as no notice to redeem required by statute had been served upon them, the deeds were void and we granted a new trial. A second action of the same character was begun in 1909 with regard to Little Osprey. With these two actions pending the conservation commission in 1912 authorized the attorney-general to discontinue them. Thereafter

Clearly the original judgments were unauthorized. The conservation commission had consented merely to a discontinuance of the actions, not to a judgment that would be conclusive. Nor had the court gone further. (Laws of 1911, chap. 647, sec. 9.) The People were entitled to relief. Whether the order as made would have been modified had an appeal been taken — whether the defendant might not have claimed that the judgments entered on a conditional stipulation should be vacated entirely leaving the two actions pending when the condition failed — these questions are not before us. The order was made. It was never properly questioned. It was in other actions, not in the present. No appeal from this judgment can bring it up for review. Being then simply judgments for dismissal, these judgments are not a bar to the present action. (Code Civ. Pro. sec. 1209.)

On this trial the state relied on two sources of title. In 1786 a patent for these and other lands was given to Robert G. Livingston. Through various mesne con

1. As-to the title of the state under the tax deed. In 1871 a, large tract of land, including the islands in question, was sold for unpaid taxes for the years 1861 to 1865. These proceedings were under the authority of chapter 427 of the Laws of 1855 having to do with the lands.of non-residents. The land was bid in by the state. (Sec. ■ 66.) Within two years of the sale the owner or occupant might redeem. (Sec. 50.) If no redemption is had the comptroller shall at the end of the period execute a tax deed of the land sold which shall vest in the grantee an absolute estate in fee simple (Sec. 63) and shall be presumptive evidence that the sale and all proceedings prior thereto, from and including the assessment of the land, and all notices required by law to be given, prior to the expiration of the two years allowed to redeem were regular. (Sec. 65.) However, if at the end of. the two years allowed for redemption the land is in .the actual occupancy of any one, notice to redeem . must be given to such person within the additional, term of two years, and no tax deed may be recorded, unless such notice is given. (Sec. 68.) No title passes if such notice is not given. (Sec. 72; Bush v. Davison, 16 Wend. 550 ; Ostrander v. Reis, 206 N. Y.

In the former case of People v. Ladew it was found that one Dunning had actually occupied Osprey Island under a claim of title from 1869 to 1881 and that no notice was ever served upon him. We, therefore, held that the deed was void. The present record'is not the same. It is now found that one Murray first occupied the island in 1868. Upon it he built an inclosed camp where he entertained large numbers of tourists,' using it for a part of each summer and fall until 1874. Dunning was Murray’s guide. He also occupied the camp parts ■ of each year during Murray’s absence. Apparently he remained there winters making it his chief camp while trapping. He raised vegetables and there kept his outfit for hunting and trapping but did not claim to own or have exclusive possession of the islands. Under such findings were Murray or Dunning'or both actual occupants - of Osprey Island in 1873, two years after the sale?

“ Actual occupancy ” implies more than casual or temporary presence on the land. It need not be such a possession as would constitute adverse possession, but there must be some elements of permanency. In Jackson v. Esty ( 7 Wend. 148 ) Carpenter had actual possession and occupancy and held such possession and the betterments under a conveyance although he did not claim title to the land. In Comstock v. Beardsley ( 15 Wend. 349 ) the words, Judge Nelson said, were used in the same sense as the word “ occupant ” was used in' chapter 262 of the Laws of 1823, relating to the assessment of taxes. Under that act clearly neither Dunning nor Murray would have been taxable. In Bush v. Davison ( 16 Wend. 550 ) Phillips was in possession of a dwelling house as a tenant at sufferance. In People ex rel. Russell v. Doty ( 234 N. Y. 559 ) a vacant lot was cultivated each year by a tenant, and such use of the land was open and notorious. More nearly in point is People ex rel.

The Revised Statutes had originally provided that notice to redeem must be given to one in actual occupancy “ at the time of the conveyance.” (R. S. part 1, chap. 13, tit. 3, sec. 83.) In 1830 notice was required as now to an occupant at the expiration of the time to redeem. (Laws of 1830, chap. 108.) It was held that these two acts were not inconsistent; that both notices were required. (Hand v. Ballou, 12 N. Y. 541 .) As the act of 1855 did not specifically repeal this section of the Revised Statutes it is said we should now hold that the two provisions are still consistent and that both still stand. The act of 1855, however, is intended as a complete codification of the law. The provision that a deed given, if there is no occupant at the end of two years from the sale and no redemption, shall vest an absolute title in the grantee (Sec. 63) is repugnant to the idea that any further notice is required. The holding of the trial judge, therefore, that occupation in 1875 was immaterial is right. No notice to redeem was required.

The appellant, however, offered in evidence certain facts which if admitted would have shown that the taxes for the years in question never became a hen on the land. The board of assessors of Hamilton county for these years did not ascertain or extend, nor did they by resolution levy the tax upon the assessment roll of the various towns. They did not ascertain or extend the tax to be

So treating it, the title of the owners was not divested by the sale or the subsequent deed. The tax itself and the sale were absolutely void. (People v. Inman, 197 N. Y. 200 .) Any presumption of regularity that may have existed is rebutted. All this the state concedes.

In 1874, and before the tax deed was given, Dunning went into permanent possession of the island. He then made an oral claim of ownership and excluded other people therefrom. He built an ice house, cultivated a few rods of land and lived there until 1879, calling it and making it his home and asserted ownership, “ basing his claim upon nothing else than that he had gone into possession when no other person was there.” Even if, as has been held, this did not constitute adverse possession as against the true owners, there is no room for finding that during these years possession, actual or constructive, was in the state. In 1879 one Durant applied to the commissioners of the land office to purchase Osprey Islands. The application was denied but Mr. Durant was appointed custodian of the islands to protect the scenery and prevent' trespasses. The appointment was at pleasure and without compensation. But Dunning was still in possession and the respondent expressly admits that he remained in possession until he deeded it to Durant in 1881. On several occasions Durant and

Any implied finding, therefore, that Durant was in possession of the islands as custodian or any. express finding to that effect is opposed by the uncontradicced evidence. Being no longer custodian, any possession he may have acquired after November, 1881, was not possession by the state. And his possession such as it was continued until he conveyed to Ladew in 1891.

In 1885 two acts were passed affecting the Tax Law. With chapter 453 we have no present concern. Chapter 448 provided that any conveyances that had heretofore been executed by the comptroller, after they had been recorded for two years shall, six months after the act took effect, be conclusive evidence that the sale and all proceedings prior thereto were regular. TMs provision was not applicable, however, to any action, proceeding or application begun within six months.

As to this statute, standing by itself it is enough to

Such then was the situation in 1891. The state had no title to the land. It had no possession actual or constructive. The title was vested in the successors of the original patentee from the state. Durant was in occupation. Whether he held adversely or not we need not consider. In any event during that year he conveyed the premises to Joseph H. Ladew who later conveyed them to his wife, Jennie. Ladew thereupon entered upon the islands “ and has since continuously occupied the same, claiming title thereto and using said premises, spending large sums of money thereon for improvements, and he and his grantee, the defendant Jennie H. Ladew, liis wife, have since said deed from Charles W. Durant occupied and used said premises to the exclusion of all others to the present time.” The larger island contains seventeen acres of land; the smaller one acre. The uncontradicted evidence is that Ladew paid all taxes, received rent, cleared a portion of the island for a farm and garden, kept cows for a time and fenced in a pasture for them, made paths through the woods, built a summer house on the smaller and new buildings scattered over the larger. . This was adverse as against the true owners within the meaning of sections 369 and 370 of the Code. (Trustees of East Hampton v. Kirk, 84 N. Y. 215 ; Monnot v. Murphy, 207 N. Y. 240 ; Koch v. Ellwood, 138 App. Div. 584 .)

In 1893 again two acts were passed to which we must refer. Chapter 413 was merely a curative act and did not make legal the sale of 1871. Chapter 711 repealed the pertinent sections of chapter 453 of the Laws of 1885

This argument may not prevail for several reasons. The authority given included only “ wild, vacant and forest lands.” Under the findings these lands might not be .said to be vacant 'in 1894. At the time Ladew certainly was in actual occupation of the islands, and other provisions of the statute show that what the legislature had in mind was the distinction between occupied and vacant land. This construction and this ■construction only would make the statute effective. Constructive possession is attributed to the holder of the paper title in the absence of any adverse holding. That rule may be changed. Where a tax deed was given to

It follows that no tax title to the property in question was ever acquired by the state;

2. As to the paper title of the state. In 1786 the state granted township 40 of Totten & Crossfield’s Purchase in Hamilton county containing 25,200 acres to Robert G. Livingston. In 1852 the title to the greater part of this township, including the islands in question, was vested in Abner Benedict. His grantor had conveyed some lands in the township, not including, however, the land in dispute, to Joel Benedict and he himself conveyed to Mark H. Beecher a quarter of some seven thousand acres, also not.touching the two islands. In that year Abner Benedict conveyed to Mead, Sackett, Hay and Platt 8,000 acres as yet undivided and also four-fifths of his interest in the balance of the township after deducting 18,350 acres. Apparently the original survey underestimated the amount of land contained’ in said township. Apparently also the 8,000 acres lay outside of the islands and they were not included in the 18,350 acres. . In 1866 the interest of these grantees was vested three-fourths in Mead and one-fourth in Platt. Platt’s interest was incumbered by a mortgage given to one

A grant of real property is absolutely void if at the time of the delivery thereof such property is in actual possession of a person claiming under a title adverse to that of the grantor. (Real Property Law of 1896, sec. 225.) And this was true also at common law. Ladew’s possession was adverse possession under this rule. (Arents v. L. I. R. R. Co., 156 N. Y. 1 ; Green v. Horn, 207 N. Y. 489 .) But the statute does not forbid grants directly to the state. Our laws as to champerty and maintenance come to us from the far past. The statute 32 Hen. VIII, ch. 9, forbade the sale of pretended rights or titles in land by one not in possession under penalty of forfeiture of its value one-half to the crown, one-half to him who sued therefor. The disposition of the penalty is some indication that a grant to the king was not prohibited. The purpose of the statute was to discourage corruption in the court or the use of influence “ by great persons by whom the poor might be oppressed.” None of these dangers might, in theory at least, occur because of the action of the sovereign. So, it is said that the assignment of a chose in action, champertous if made to a subject was valid if made to the king. (35 Law Quarterly Review, 143, 146.) This statute did not initiate a new policy.. It did not prohibit what was before permitted. If it impliedly recognized as valid a grant to the king it was because such a grant had theretofore been allowed.'

. The law in this respect has been ' codified by our statutés and as it exists to-day is contained in them. (Sedgwick v. Stanton, 14 N. Y. 289 .) No reason exists-

This conclusion brings us to a more difficult question. The immediate grantor to the state was Mr. Webb. The conveyances to him were made while Ladew possessed the land adversely. Under such circumstances did any title pass to the state? It certainly did. riot acquire a greater estate or interest than Webb possessed ór eorild lawfully convey. (Real Property Law [Coris. Laws, ch. 50], sec. 245.) What estate did he possess? What-might he convey? In answering these questions we are ..to remember we are dealing with rules governing the. álienation of land inter vivos, rules, therefore, having their roots in the feudal law. Reasoning based on the supposed

After the Conquest feuds might not be aliened. (2 Blackstone, 71; 1 Pollock & Maitland, 329.) They'might be created. They might be resumed. Possibly this is the basis of the allowance of grants to and from the crown of land held adversely. It was but gradually, step by step, in one way and another, that the tenant acquired the right of alienation. But always this right implied that the alienee might be and actually was inducted into possession. (4 Kent, 448; Digby History of Law of Real Property, chap. 3, sec. 12.) Feoffment and livery of' seisin, whether in deed or in law, fines and recoveries, release or surrender (3 Jacob’s Law Dict. 65; McGregor v. Comstock, 17 N. Y. 162 ) — it was everywhere assumed. Or consider ejectment. The claimant at first must make a formal entry upon the land before he could constitute a lessee for years and the casual ejector must actually oust this tenant. Later while title, lease, "entry and ouster must still be stated, the real defendant was only permitted to be heard if he confessed all these prerequisites except title. Possession before the tenancy might be created must still be conceded before a recovery was possible. If the transfer' was by feoffment no charter was requisite. It was but evidence of the transfer and of the conditions attached thereto. (Tiedeman [3d ed.], sec. 536.) Therefore quite logically the statute of 32 Henry VIII did not declare the attempted alienation of land held adversely void. It was unnecessary. All it did was to prohibit the ‘transfer unless the alienor had been in possession for a whole year, under severe penalties. At least by the Dukes Laws, however, a deed became necessary in the colony of New York. No alienation of lands “ shall be. holden good in law except the same be done by deed in writing, under hand and seal and deliveredand possession given upon part in the name of the whole by the seller or his attorney'” with an exception not materiál here

Meanwhile the idea of possession broadened. At first doubtless it meant actual physical occupation of the land. Later the owner was in possession if the land was occupied in subordination to his title or if the land was vacant. He was never in possession if the land was held adversely to him. Yet he might give a deed valid in form. The deed might be recorded. Feoffments with livery of seisin and fines, although still possible until the time of the Revised Statutes were in little use. By analogy with transfers of personal property it might be believed that such a deed passed some right of entry or chose in action. The revisers, therefore, adopted an express provision that every grant of lands held adversely should be absolutely void, referring to an act passed in 1801 (1 R. L. 173) which had, however, but substantially re-enacted the statute of Henry VIII. (R. S. part 2, chap, 1, title 2, art. 4, sec. 147.) This was an excess of precaution. Indeed in Massachusetts, in the absence of such a statute it has been held that at common law the same effect would result. (Brinley v. Whiting, 5 Pick. 348 .) We had already so held. (Jackson v. Vredenburgh, 1 Johns. 159 .)

What was the result? Title remained in the grantor. (Chamberlain v. Taylor, 92 N. Y. 348 ; Livingston v. Proseus, 2 Hill, 526 .) If he later obtains possession and then again conveys to the same grantee, the second deed is valid. (Dawley v. Brown, 4 N. Y. St. Repr. 406 .) If he later convey to an adverse possessor, although'the latter

The grantee, therefore, might never bring an action in ejectment in his own name. He had obtained nothing — no title, no right of entry, no chose in action of any kind. He had the bare right if his grantor ever legally ousted him in adverse possession to claim by estoppel the benefit of that result. And having that right we permitted him, if his grantor assented, to prosecute an action of ejectment in his grantor’s name. (Chamberlain v. Taylor, supra.) But assent was essential. If the grantor refused there was no remedy. (Lawber v. Kelly, 9 Bosw. 494 .)

This was the situation when chapter 460 of the Laws of 1862 was adopted. Chapter 111 of the Code of Procedure had provided that an action should be prosecuted in the name of the real party in interest, who, as Judge Robertson pointed out in the Lawber case, was the grantor. This section was now amended. “ But an action may be maintained by the grantee of land in the name of his grantor when the grant or grants are void,” because of adverse possession. This amendment in no way changed the rule as to the effect of void grants. (Dawley v. Brown, 4 N. Y. St. Repr. 406 .) It conferred upon the grantor no property rights which he had not theretofore possessed. Its purpose may have been extremely narrow (Hamilton v. Wright, 37 N. Y. 502 .) At most it simply permitted him to bring the action in the name of his grantor as a matter of course without requiring the consent of such grantor theretofore necessary. This is implicit in our

We cannot, therefore, believe that because Mr. Webb’s grantors might have conveyed directly to the state and that had they done so the state might have maintained an action in ejectment in its own name, the same result follows when it needs trace its title through him. In the one case the conveyance is good, not void. Title passes and the right to enforce possession. In the second, nothing. The state may not acquire from Webb what he never had. If title passes, when? Clearly it is in Webb’s grantors after the conveyance to Webb. It remains in them if Webb chooses to convey to an individual. Does it pass directly from them to the state when Webb delivers his deed? Or may the state question a conveyance from the same grantors to Ladew? Webb could not. We cannot assent to these propositions. And if we do not when in 1910 the rule as to the effect of such conveyance was amended by adding “ the provisions of this section do not apply to a grant of such property made to the People of the state of New York, nor to a person where the title granted to such person shall thereafter, by grant or mesne conveyance become vested in said People,” we think more was effected than a mere change of procedure. Were that all the statute might be construed as retrospective in operation. But it alters the substance of the law. It provides for a transfer of title. At present the statute states that such a series of transfers as that before us would vest title in the People. They may sue and recover in their own name. This being so, under well-settled principles of construction we

3. As to adverse possession. The state having failed either to show title to the land in dispute or.possession prior to that of the defendants may not succeed in this action. As, however, because of the exclusion of the evidence necessary to show the invalidity of the tax deeds a new trial must be granted, it would be well for us to express our opinion upon the alleged title of the defendants, dependent upon adverse possession. This action was begun in July, 1914. Forty years from that time would take us back to 1874. Twenty years to 1894. It may well be that if the forty-year statute applied the defendants never acquired title. The nature of Murray’s possession as found was not adverse. Dunning’s possession, even if adverse, is found to have begun in 1874. It is not said, however, to have begun before July and there is no evidence to that effect. In truth it is to the contrary. Ladew’s possession in 1891 was adverse and continued to be so. As against the true owners he gained title in 1911. The state not being in any sense the owner we are not concerned with the longer statute.

The judgment appealed from should be reversed and a new trial granted, with costs in all courts to abide the event.

(dissenting). Assignments of choses in action, though often stated to be invalid at common law, were effective from early days to the extent of empowering the assignee to sue and recover judgment in the name of the- assignor (1 Williston, Contracts, §§ 408, 410). The power thus conferred might be delegated; and so the .result: was brought about that the name of the assignor was available to' sub-assignees or successive buyers as fully as'it had been available to the first buyer in the

Our simplified procedure has brought assignees into the open, but there remains one situation in which the law keeps them under cover. The statutory rule (Code Civ. Pro. § 1501; Civ. Prac. Act, § 994) that the grantee of lands adversely held must sue, if at all, in the name of his grantor, remains as a curious survival of procedural complexities now generally extinct (Civ. Prac. Act, § 210; Code Civ. Pro. § 449; cf. Code Civ. Pro. §§ 1909, 191Ó; Pers. Prop. Law [Cons. Laws, ch. 41], § 41). Ownership of the land is still in the grantor,'but the grantee is put in the same position in which the assignee of a chose in action

If these conclusions are correct, the recent amendments of the- statute are declaratory of pre-existing law. The state does not need their help to sustain its cause of action.

The judgment should be affirmed with costs.

Hiscock, Ch. J., Pound, McLaughlin and Crane, JJ., concur with Andrews, J.; Cardozo, J., reads dissenting opinion.

Judgments reversed, etc.