Belcher v. Belcher

This is an action in ejectment to recover a house, which constitutes part of a larger property conveyed by the several deeds hereafter mentioned, including the deed to plaintiff. The entire property was formerly owned by Martin Stone, at the time of his death in the year 1876. In 1883 the defendant was living on the property with her husband, Yelles Belcher, and his adopted son, Edward C. Belcher, apparently under some arrangement with the representatives of Stone. In the latter year the executors under the will of Stone, by virtue of a power to convey real estate contained in the will, executed to said Edward C. Belcher a contract to convey the property, which contract contemplated the execution of the deed in 10 years and provided that Edward C. Belcher should immediately have possession of the premises. He, with Yelles Belcher and the defendant, continued to reside there until 1893, when Yelles Belcher died. Thereupon the defendant excluded Edward C. Belcher from the house in-question, and has ever since continued to hold it adversely. Edward C. Belcher constructed other dwellings on the property. In 1894, pursuant to the contract of sale, the executors of Stone conveyed to him the property. In 1899 he married the plaintiff, and in the same year conveyed it to her. The record title of plaintiff, is complete. Defendant claims neither record title nor title by adverse possession. At the trial, in response to a question by the court, her counsel announced that she claimed to have held the property adversely since the year 1893; that being the year of her husband’s death. He further stated:

“We don’t claim adverse possession ripened into title before this action.”

s The court found as a fact, in accordance with defendant’s contention, that she had occupied the house exclusively since 1893. She has at no time had or claimed possession of any part of the premises, except the house in question. Even if she had claimed, and it had been found by the court, that she had been in adverse possession since the time of the Stone contract to- Edward C. Belcher in 1883, it would avail her nothing as a claim of title by, adverse possession, for the reason that this action was begun in 1900, less than 30 years thereafter.

The action is resisted on the ground that the conveyance to plaintiff was champertous under section 335 of the real property law (Laws 1896, p. 603, c. 547), which declares that:

“A grant of real property is absolutely void if at the time of the delivery thereof such property is in the actual possession of a person claiming, under a title adverse to that of the grantor.”

_ That defense, however, is unavailable to one who makes no claim of title, but is simply in possession of the property, not claiming to be rightfully in possession. It is not sufficient, even, that he may claim title, but must disclose some specific alleged title, that the court may see that it is adverse to that of the grantor. Dawley v. Brown, 79 N. Y. 390 , 396; Arents v. Long Island Railroad Company, 156 N. Y. 1 , 7, 50 N. E. 422 ; Crary v. Goodman, 22 N. Y. 17O.

Finally, the defendant complains because she was not permitted to prove that her husband furnished the consideration of the conveyance by the Stone executors, and that the deed was taken by Edward C. Belcher because of the embarrassed financial circumstances of her husband. If this were a fact, it would have been a fraud on the creditors of her husband, and unavailable either to him or to her, especially as against the plaintiff, who for anything that appears is an innocent purchaser of the property for value.

The judgment is right, and should be affirmed, with costs. All concur.