McTeague v. McTeague — 5 N.Y.S. 130

Majority

p. 130

McTeague v. McTeague et al.

(Supreme Court, General Term, First Department.

March 29, 1889.)

Headnote

Partition—Adverse Possession.

In an action for partition it appeared that defendant and her predecessors in the title, who had taken possession of the premises in 1861, claiming in good faith under a deed, had from that time on exercised acts of exclusive ownership; had collected the rents, dispossessed tenants, and paid taxes; all of which facts were known to and acquiesced in by plaintiff, who claimed under a deed from one of defendant’s predecessors, executed in 1859. Meld, that the action was barred.

Appeal from circuit court, New York county.

Action for partition by Joseph P. McTeague against Mary and Charles Mc-Teague. From a judgment entered on the verdict of a jury, and the findings of fact and conclusions of law made by the trial judge after verdict, and from an order denying plaintiff’s motion to set aside the verdict and for a new trial, he appeals.

Argued before Van Brunt, P. J., and Brady and Macomber, JJ.'

Thomas J. McKee, for appellant. Thornton, Marie & Kiendl, for respondents.

The action is for the partition of certain real estate situated on Third avenue, near 111th street, in the city of New York, consisting of a corner lot and a lot adjacent. The defendants Charles and Mary were the children of Patrick McTeague, deceased; the plaintiff and the other defendants were the children of John McTeague, deceased. John had owned the corner lot, and in his life-time had mortgaged it to the Northern Dispensary, who foreclosed, and Patrick bought the property at the sale. Patrick owned the adjacent premises, having obtained the deed thereof from the owner, one Carnley, in 1858. Though the action was brought to partition both of these lots, at the trial the plaintiff abandoned any claim to the corner lot, and abandoned the case against Charles W. McTeague, who owned it. The question, therefore, relates solely to the rights of the defendant Mary McTeague. Lydia Ann Carnley, by deed bearing date April 14, 1858, conveyed these premises to Patrick McTeague; Patrick McTeague in turn conveyed them to Charles McTeague; Charles McTeague conveyed to Elizabeth McTeague; and the last-named" devised the same in fee to the defendant Mary McTeague. . The contention of the plaintiff is that his father, John Mc-Teague, had received a deed of these premises from Patrick McTeague (in whom was the record or legal title) in the year 1859. The record of such a deed is shown in the evidence. The defendant Mary McTeague and her predecessors under the Carnley deed are shown to have been in possession of the premises certainly from the year 1861, claiming title thereto in good faith. They had claimed to own the premises by virtue of such title; had exercised acts of exclusive ownership thereon; had collected the rents, and dispossessed tenants, and paid taxes-from that time until the beginning of this action. The plaintiff, and those under whom he claims, had knowledge of these open, visible, and emphatic acts of ownership, and acquiesced in them for upwards of 20 years, and consequently they are too late to com

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plain of them now. Without considering the question whether, under this form of action, the question can properly be presented, the judgment should be affirmed, with costs. All concur.