Green v. Horn

The parties to this action claim title through one William Caldwell, who died May 1, 1848, possessed of a large tract of land, of which the lot in dispute was a part. By a codicil to his will he devised an undivided one-third to Eliza McGillis, during life, with remainder to her children. The undivided two-thirds he gave to Helen Louisa Parmelee and Catherine E. Van Cortlandt. In August, 1851, an action of this tract was commenced, and an interlocutory judgment, directing partition and designating commissioners to make the partition, was duly entered. The commissioners made partition. by dividing the property into two parcels, one of which, known as “Lot 20 of the Garrison Ground,” containing 56 acres, was allotted to Eliza

“all that piece or parcel of land, situate, lying and being in the town of Caldwell j Warren Co., State of New York, being portion of lot twenty (20) Garrison Ground, beginning at southeast comer of Steam Mill Lot at a point in the west line of the Glens Falls and Lake George Plank Road, being north 61 degrees and 31 minutes west from the center of a culvert under said plank road, and running thence west of north five (5) chains thirteen (13) links to the east line of Dieskan street; thence south three (3) degrees west along the street five (5) chains twenty-five (25) links; thence north eighty-six (86) degrees east four (4) chains twenty-five (25) links to Plank Road; thence north twenty-eight (28) degrees thirty (30) minutes east two (2) chains fifty (50) links, containing one (1) acre twenty-five (25) rods more or less.”

This deed was recorded in Warren county clerk’s office December 24, 1881. The defendant claims' that it embraces the premises in question. January 8, 1902, Elizabeth G. Horn by warranty deed conveyed the same premises, by similar description, to the defendant, and the deed was recorded April 17, 1902. The plaintiffs claim title through a quitclaim deed from the devisees, named in the wills of Helen Louisa Parmelee and Catherine E. Van Cortlandt, made February 1, 1905, which includes the land in dispute.

In disposing of the plaintiffs’ motion for a direction of a verdict, the learned trial court said:

“I find nothing here to justify me or the jury in finding that this possession by defendant was adverse; and I do not think it necessary to send the question of possession to the jury, because I regard the possession as peaceable and not adverse.”

Assuming that the claim of the defendant and his grantor was not founded upon a written instrument, I am of the opinion that there was evidence that they claimed to hold the premises adversely.

The witness Morris Stanton testified, “I do not remember when Mrs. Horn bought there; I remember her claiming ownership there,” and the proof shows many facts and circumstances attending the possession from which a jury might properly conclude that it was adverse. It is unnecessary to recapitulate these facts or circumstances in detail. It is sufficient to say that the evidence on the part of the defendant tends to show that the defendant grantor entered into the actual possession in 1881, when she received her deed, and thereafter occupied and exercised acts of ownership over it; that her possession was definite, positive, visible, and notorious; that she protected it with a

To perfect title by adverse possession it is not necessary that the true owner should have had actual notice, or that the claimant should have assented in public in so many words his claim or ownership. A claim of title may be made by acts as well as assertions. New York Cent. & H. R. R. R. Co. v. Brennan, 12 App. Div. 103 , 42 N. Y. Supp. 529 ; Barnes v. Light, 116 N. Y. 34 , 22 N. E. 441 . In the Barnes Case it was said that “possession, accompaniéd by the usual acts of ownership, is presumed to be adverse until shown to be subservient to. the title of another.” However that may be, I think that the premises in controversy are included in the deeds under which the title was claimed.

The description is clear and explicit. The starting point of the first line is a point in the west line of the Glens Falls & Lake George Plank Road, the third line extends to the plank road, and it appeared by the undisputed evidence of the plaintiffs’ surveyor that the fourth and last course “would include the property in the gore and more too.” Taking into consideration the entire description, I think the conclusion is warranted that the grantor intended to convey to the plank road. The fact that there was a mistake in a course or distance is immaterial, as the legal presumption is that all grants and conveyances are made with reference to an actual view of the premises by the parties thereto, as to its state and condition at the time; that courses and distances and quantities must yield to natural or artificial monuments or objects; and courses must be varied and distances varied so as to conform to the natural or ascertainable objects or bounds called for by the grant. Wendell v. People, 8 Wend. 183 , 22 Am. Dec. 635 .

If I am right in the conclusion that the lines given in the deed describe the lands in dispute, and the original entry was under it, the possession was adverse, however groundless the title. De St. Laurent v. Gescheidt, 18 App. Div. 121 , 45 N. Y. Supp. 730 ; Munro v. Merchant, 28 N. Y. 9 ; Sands v. Hughes, 53 N. Y. 287 . In the Munro Case it was held that a deed purporting to be executed by virtue of a power of attorney, which was not proved, affords sufficient color of title on which to found adverse possession under the statute.

There was also evidence which would have warranted the jury in finding that the deed to the plaintiffs was void. If the defendant was in adverse possession under his deed, when they recorded their deed of the premises, it was absolutely void as against the defendant (Real Property Law [Laws 1896, p. 603, c. 547] § 225; Arents v. Long Island R. R., 156 N. Y. 1 , 50 N. E. 422 ; Dever v. Hagerty, 169 N. Y. 481 , 62 N. E. 586 ), and whether or not the defendant was in actual possession, holding adversely under his title at the time the subsequent deed was made, was a question of fact for the jury.