Degrauw v. Warner

The conveyance to defendant includes the locus in quo, and so do several of the instruments executed at the time with intent to vest the title in him. The conveyance from plaintiff to defendant’s immediate grantor, executed and delivered at the same time, is defective by the omission of one or more courses, and the description is, therefore, .imperfect. But, as plaintiff had knowledge of all the conveyances, and of their object, was present when they were delivered, gave no notice of any claim on his part, and received the whole of the consideration money, we think he is clearly estopped from advancing any claim to the premises. The action is for trespass alleged to have been committed in 1889. The proof is that the defendant went into possession in 1887, immediately after the conveyance to him, and has remained in possession ever since. That proof was not disputed, and the correctness was conceded. The fact is fatal to this action. One out of possession cannot maintain an action for trespass while he is out of possession. Wood v. Lafayette, 68 N. Y. 181 .

The judgment must be reversed, and a new trial must be had, with costs to abide event.

Brown, P. J., and Dykman, J., concur in the result.