La Tourette v. Decker — 45 N.Y. St. Rep. 78

Majority

p. 78

Andrewette La Tourette el al., Resp’ts, v. Angeline Decker, Impl'd, App’lt.

(Supreme Court, General Term, Fourth Department,

Filed May 13, 1892.)

Headnote

1. Partition—Parties.

The seizin oí one co-tenant, unless proved to be adverse, is the seizin of.'

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all, and either may institute proceedings for partition although not personally in possession.

2. Same—Adverse possession.

One of the plaintiffs testified that the premises were occupied by defendant’s husband; that he had had charge of them since the ancestor's death. Defendant testified that she had had charge since her father’s death and was in possession. Held, that the referee properly refused to find that she was in exclusive possession.

S. Mortgage—Assignment.

A mortgage on the premises was given in 1833 to one B. In 1852 one H. made a written assignment thereof to defendant, executing it as administrator of B. Held, that in the absence of proof of the death of E., or that H. was her administrator, the referee was justified in refusing to find that defendant was the owner of the mortgage.

Appeal from, a judgment entered in Broome county January 27, 1890, on the report of a referee.

The action was to set aside certain deeds as void, and to partition the real estate described in the complaint. The appellant claimed title by deed to the premises first mentioned therein. She also claimed to hold a mortgage upon the same. The referee held that the deed under which the appellant claimed was void, because the grantor was of unsound mind at the time it was given, and refused to find that the appellant was the owner of a mortgage on the premises. He directed judgment, adjudging that the premises be sold, and that the proceeds thereof, after paying certain debts, be divided between the parties according to their respective interests as found by him.

3. Mach Smith, for app’lt; E. C. Moody, for resp’ts.

The appellant seeks a reversal of the judgment herein only so far as it relates to the premises first described in the complaint. The grounds upon which it is sought are :

1. That when the action was commenced she had a hostile title, and was in actual possession claiming the lands adversely.

2. That she held a mortgage on the premises, and her possession ought not to be disturbed until ‘the mortgage is paid, or its payment provided for.

The proof in this case is such as to render it unnecessary for us to determine whether, since the adoption of the Code of Civil Procedure, which provides for the trial of title in such actions (§ 1543), a subsisting adverse possession is a bar to an action for partition.

The only evidence contained in the record that bears upon this question is that of the appellant and one of the respondents. The ■latter testified: “ The river place (being the premises in question) is now occupied by James Decker, husband of Angeline; he has control of it; has had possession of it since April, 1884; lie has occupied it since my father’s death.” The appellant testified : “ I have had charge of it since my father’s death ; "x" * * I am now in possession oE it.” The referee refused to find that she was in exclusive possession of the land in question. Under this evidence, it cannot, we think, be held that there was a subsisting adverse possession in the appellant. The seizin of one

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co-tenant, unless proved to be adverse, is the seizin of all, and either may institute proceedings for partition, although not personally in possession. The possession of one tenant in common, is presumed to’ be that of all. (Hitchcock v. Skinner, Hoff, Ch., 21; Beebee v. Griffing, 14 N. Y., 235 ; Florence v. Hopkins, 46 id., 186; Culver v. Rhodes, 87 id., 348; Hulse v. Hulse, 5 N. Y. Supp., 747 ; 23 St. Rep., 123 .) Hence the judgment should not be reversed on the ground first stated.

This leaves for consideration the question whether the appellant was a mortgagee in possession. The only proof that tended to-show that she stood in the relation of a mortgagee of the premises was that a mortgage thereon was given by William La Tourette to Elizabeth La Tourette in 1833. In 1852, one Henry La Tourette made a written assignment of that mortgage to the appellant, and to his signature thereto he added the words, “Administrator of the estate of Elizabeth La Tourette.” There was no-proof whatever either of the death of Elizabeth La Tourette, or that Henry La Tourette was the administrator of her estate. Upon the evidence as it stood, we think the referee was justified in refusing to find that the appellant was the owner of that mortgage. Hot having been shown to be the owner of a mortgage upon the premises, she could not be treated as a mortgagee in possession.

We find no sufficient reason to disturb the judgment, and consequently think it should be affirmed.

Judgment affirmed, with costs.

Hardin, P. J., and Merwin, J., concur.