McClellan v. Zwingli — 53 N.Y. St. Rep. 751

Majority

p. 751

Betsey E. McClellan, App’lt, v. Lucy Jane Zwingli, Resp’t.

(Supreme Court, General Term, Third Department,

Filed July 8, 1893.)

Headnote

1. Deed—Presumption op delivery.

Where a deed is properly acknowledged and in the possession of the grantee, delivery will he presumed.

p. 752

2. Ejectment—Title of plaintiff’s qrantob must be shown.

The fact that the deed under which the plaintiff claims is more than thirty years old does not change the rule which requires the plaintiff in ejectment to show title or possession in his grantor; especially in the absence of evidence showing that the deed ante-dated the occupancy of the defendant of the land in suit.

Appeal from, judgment dismissing the complaint on the merits, entered upon report of a referee, in an action of ejectment.

The action was commenced by the present plaintiff’s husband, who has since died, and the action has been continued in her name. The parties occupied adjoining premises, separated by a division fence, and the action was to recover possession of the premises occupied by defendant, who was the sister of the original plaintiff.

On the trial plaintiff introduced in evidence a deed executed in 1856 by one Blair and wife to her husband, purporting to convey both lots.

At the close of plaintiff’s evidence the referee dismissed the complaint, finding that the -deed was "not shown to have been delivered, and that the grantors therein were not shown to have owned or been in possession of the premises in question, and, therefore, that plaintiff had not proved any title or right to possession.

S. W. Russell, for app’lt; Westfall & Graham (C. M. Westfall, of counsel), for resp’t

We think the finding of the referee that the deed under which plaintiff claimed title was not shown to have been delivered was erroneous. Being properly acknowledged and in the possession of the plaintiff, delivery will be presumed.

But the error of the referee in the regard above mentioned did not injure plaintiff, for the reason that she failed to show any title to the premises in suit. The deed referred to was received in evidence by the referee, and after plaintiff had introduced the same she rested without any evidence showing title in the grantors named in said deed or any possession in said grantors of that portion of the premises occupied by the defendant

In Adams’ Trial Evidence (page 705), the proof required in such a case is correctly stated, viz.: “Plaintiff relying on a

conveyance to him from a grantor other than the state must show that his grantor had either title or possession claiming title.” The fact that the deed under which plaintiff claimed was more than thirty years old does not change the rule which requires in such a case proof of the title or possession of the grantors. This is especially true in the absence of evidence showing that the deed ante-dated the occupancy of the defendant of the land in suit. In this case there was no evidence whatever showing the title of plaintiff’s grantors to the premises occupied by defendant or that said grantors had ever been in possession thereof.

Tim judgment should be affirmed, with costs.

Mayham, P. J., Putnam and Herrick, JJ., concur.