Church v. Wright

This is an action of ejectment, and by the judgment the plaintiff recovers the possession of about 31 acres, of which the defendant has been in possession since 1858. The main question here is whether the referee erred in holding that the defendant had not made out the defense of adverse possession. The action was commenced April 3, 1894. On the 13th January, 1796, Stephen Van Rensselaer was the owner and in possession of a farm in the town of Berne, of which the premises in question are a part. At that date Van Rensselaer and one Thomas Hayes mutually executed, sealed, and delivered an indenture called a “manorial lease in perpetuity,” which provided for the payment of certain yearly rent by Hayes, his heirs and assigns, and gave to Van Rensselaer, his heirs and assigns, in the usual form, the right to re-enter for nonpayment of rent. Hayes entered into possession under the lease. On the 29th March, 1858, John Youngs, by warranty deed, conveyed to the defendant in this action 47 acres, part of the original farm, which included the premises here recovered. In this deed, after the description, there was the following clause: “Subject only to all demands that may be made a lien hereafter by Stephen Van Rensselaer or his heirs from this date.” On the 18th day of April, 1864, Stephen Van Rensselaer, son of the original grantor, and who had become the owner of all his rights in the property and in the covenants and conditions in the deed, commenced in the supreme court an action of ejectment against the defendant, Wright, to recover the possession of the farm, for and by reason of a breach of the covenant for the payment of rent, and on the 24th November, 1866, a judgment was duly entered awarding to the plaintiff therein the possession of that part of the farm of which Wright was in possession under said lease, and which was the same covered by the deed from Youngs. On tbe 2d May, 1864, Stephen Van Rensselaer transferred all his interest in the property and covenants to James Kidd and Peter Cagger, and on the 8th July, 1878, Walter S. Church became the owner of the same, and thereafter, and before the commencement of this action, the plaintiff became the owner of the same. It is found by the referee, that no rent has been paid for or on account. of the- premises here recovered since 1858; • that at the time of the commencement of the action the defendant was in

It is very clear that the possession of the defendant was subservient to the lease, at least down to the time of the entry of the judgment in 1866. It had been recognized by him in a deed of a portion of the premises in 1858. The presumption was that he was in under the lease. Bradt v. Church, 110 N. Y. 537 , 18 N. E. 357 . That such was the fact is in substance conceded. It is, however, claimed by the defendant that by the judgment the lease was terminated, and that at the date of its entry an adverse possession by the defendant commenced to run, which, after the lapse of 20 years, formed for him a perfect defense. The claim of the plaintiff is that, if the lease was terminated by the judgment, the plaintiff is entitled to the benefit of the provision of section 373 of the Code of Civil Procedure, and that adverse possession would not commence to run as against the plaintiff until the expiration of 20 years thereafter, and so had not continued for 20 years before the commencement of this action. Section 373 is as follows:

“Where the relation of landlord and tenant has existed between any persons, the possession of the tenant is deemed the possession of the landlord, until the expiration of twenty years after the termination of the tenancy; or, where there has been no written lease, until the expiration of twenty years after the last payment of rent; notwithstanding that the tenant has acquired another title, or has claimed to hold adversely to his landlord. But this presumption shall not be made, after the periods prescribed in this section.”

This section has received judicial consideration in several cases. Whiting v. Edmunds, 94 N. Y. 309 ; Bedlow v. Dock Co., 112 N. Y. 265 , 19 N. E. 800 ; Church v. Schoonmaker, 115 N. Y. 570 , 22 N. E. 575 ; Hasbrouck v. Burhans, 42 Hun, 376 . These cases support the proposition that under the section referred to presumptively adverse possession does not commence to run until 20 years after the expiration of the tenancy. The defendant, therefore, to sustain his view, must show something more than a simple termination of .the tenancy. In the Whiting Case, 94 N. Y. 314 , it is said:

“The possession of the tenant in subordination to the title of the landlord continues not only during the running of the term, but is presumed to be such, and to remain unchanged, until twenty years after the end of the term, and notwithstanding any claim by the tenant or his successors of a hostile title. Code, § 86; Code Civ. Proc. § 373. This presumption may be rebutted, but to do so effectively, and initiate an adverse holding, the tenant must surrender the possession to the landlord, or do something equivalent to that, and bring home to him knowledge of the adverse claim. 1 Waslib. Real Prop. (3d Ed.) 492; Jackson v. Stiles, 1 Cow. 575 ; Thayer v. Society of United Brethren, 20 Pa. St. 62 ; Towne v. Butterfield, 97 Mass. 105 .”

The defendant offered to show that in ¡November, 1888, a motion was made by the owner of the judgment of 1866 for leave to issue execution, and that this motion was, on appeal to the general term, denied. It was not suggested that the title of the plaintiff, or the existence of the lease, or the right of possession' of plaintiff or her

Judgment affirmed, with costs. All concur, except LAND ON, J., dissenting.