Fogal v. Pirro — 23 N.Y. Super. Ct. 100

Majority

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Catharine Fogal et al., Plaintiffs and Respondents, v. Joseph Pirro, Defendant and Appellant.

Headnote

1. The mere production of an ancient deed by the party claiming under it, does not entitle him to read it in evidence without further proof.

2. As against an action of ejectment by the remainderman, the statute of limitations does not begin to run in favor of a person in possession under the termor, till the determination of the precedent estate.

3. Where a mortgage executed by husband and wife, of lands belonging to the wife in fee, and of which the husband is tenant by the curtesy, is foreclosed after the death of the wife, by proceedings against the husband, without joining the heirs of the wife, the purchases takes only the life estate; and it makes no difference that the Sheriff’s deed on the sale'purports .to convey the fee. And the mortgage being extinguished by such sale, an action by the heirs of the wife to recover the land from the purchaser, after the death of the husband, cannot be sustained as an equitable action to redeem; nor can it be sustained in the aspect of an action in the nature

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of ejectment, where, as in this case, a deed under which the wife claimed, which was in the nature of a release to her by numerous heirs of her devisor, was executed by only a part of those named in it as grantors, and neither acknowledged or recorded, nor proved to have been delivered. Per Barbour, J.

(Before Bosworth, Oh. J., and Barbour and Monell, J. J.)

Heard, April 23;

decided, December 27, 1862.

This action was brought by Catharine Fogal, Sophia Randall, Peter Provoost, Amanda Tyte, Charles M. Day, John Fogal, Alexander Tyte and Colloon Randall, against Joseph Pirro and John Raab, to redeem a certain lot in Essex street, New York City, alleged in the complaint to belong in fee to the plaintiffs, from the operation of a mortgage, and to regain the premises.

The complaint alleged, that on the 9th of November, 1804, Peter Colyer, of Kings County, was seized in fee and possessed of three lots of ground, in the City of New York, one of them being on Eagle street; that he then made his will, whereby he gave to his three daughters, Eve, Margaret and Catharine, each one lot of land, and died soon after, without having revoked or altered such will, and leaving his said three daughters and other children, and his widow, him surviving, and that at the time of the testator’s death each of the said three daughters was married—Eve, to John Provoost; Margaret, to George Tiebout; and Catharine, to John D. Provoost.

That by a deed dated May 10, 1805, made between Margaret Colyer, widow of Peter Colyer, Charles Colyer and Catharine his wife, Jacobus Colyer and Jane his wife, Peter Colyer and Eve his wife, William Van Cott and Jane his wife, John Provoost and Eve his wife, George Tiebout and Margaret his wife, and John D. Provoost and Catharine his wife,—reciting, among other things, that the said Charles, Jacobus, Peter, Jane, Eve, Margaret and Catharine were the children, devisees and heirs-at-law of Peter Colyer, deceased, that doubts had arisen respecting the construction of his will, and that the parties desired to carry the intention of the testator into effect—the said

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parties, other than John D. Provoost and his wife Oathaine, granted, bargained and sold to the said Catharine and to her heirs and assigns forever, the lot of ground in Essex street, which was the subject of this action; and that the said Catharine was and continued in possession of such lot, up to her death, in 1810.

That in June, 1809, John D. Provoost and Catharine his wife executed a mortgage to Ezekiel Bishop, covering the lot in Essex street, and also a lot in Charlton street, which belonged to John D. Provoost, to secure to Bishop the payment of $800, one year from the date of the mortgage.

That Catharine, the wife of John D. Provoost, died in February, 1810, leaving her husband and her children, Margaret, Catharine, Eliza, Sophia and Peter, surviving, and that Margaret, the widow of Peter Colyer, died in 1811.

That after the death of his wife, John D. Provoost continued to hold possession of the Essex street lot until September, 1815.

That in July, 1815, a foreclosure suit was brought in chancery, upon the said mortgage, by Bishop against John D. Provoost as sole defendant, which resulted in a decree of foreclosure and sale to satisfy the amount then due, with cost, amounting in all to $1,077.98; and that in September, 1815, the lot in Charlton street was sold under the decree for $850, to James Stansberry, and the lot in Essex street to Bishop, the mortgagee, for $750, who respectively paid their bids, and received deeds of conveyance in fee from the master. That in Eovember, 1815, Bishop conveyed the Essex street lot to John Ackley; in 1822, Ackley conveyed it to William Eelson, who died in possession; in 1850, the lot was sold under a judgment in a suit to which none of the plaintiffs in this action were parties, to John Raab, who received a deed of conveyance therefor, from the Referee and Eelson’s heirs, and entered into possession; and in August, 1856, Raab conveyed the premises to Pirro, the defendant in this action.

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That John D. Provoost died in 1841. Margaret, daughter of Catharine Provoost, married E. Morgan, and in 1832 died without issue, and intestate. Eliza, another daughter, married Charles Day, and in 1838 died, his widow, leaving two children—Charles M., one of the plaintiffs in this action, and Amanda, who married Alexander Tyte, (and who was, with her husband, named as plaintiff.) Catharine,. daughter of Catharine Provoost, married John Eogal, (both plaintiffs.). Sophia, another daughter of Catharine Provoost, married Colloon Randall, (also plaintiffs;) and that all the last named persons, as well as Peter Provoost, were still living. That the mortgage executed by John D. and Catharine Provoost to Bishop, if not satisfied by the decree, had been fully paid and satisfied; that the defendant had possession of the premises, claiming to be the owner in fee, and refused to surrender or to inform the plaintiffs what, if anything, was due upon the mortgage.

The plaintiffs demanded judgment, requiring the defendant to surrender the premises, or that an account be taken of the amount, if anything, due upon the mortgage, and that, on payment by the plaintiffs of that amount, the mortgage be declared satisfied, and the defendant be required to surrender.

The answer admitted the conveyance from Raab to the defendant Pirro; alleged that at the time of the commencement of this action the defendant had, and still had, a valid title to, and was in possession of, the premises, as owner in fee; that the defendant, his predecessors and grantors, have held and possessed the premises adversely to the pretended title of the plaintiffs for more than twenty years prior to the commencement of the action; and that neither the plaintiffs nor their ancestors had been seized or possessed of the premises within that period; and denied everything in the complaint not admitted in such answer.

Upon the trial, before Mr. Justice Hoffman, in March, 1860, the plaintiffs proved the title in fee to have been in

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Peter Colyer, by a conveyance made to him in 1784. They then read in evidence the will of Peter Colyer, mentioned in the complaint, dated Kovember 9th, 1804. The devise to the plaintiff’s ancestor, Catharine Provoost, is in the following words: “Item—I give and bequeath to my daughters Eve, Margaret and Catharine, each one lot of land, lying in the City of Kew York, situate, one in Eagle street, two in Essex street.”

The plaintiffs then offered in evidence, as an ancient deed, without further proof, a paper purporting, in the body of the instrument, to be a deed, executed by the widow and children of Peter Colyer, dated May 10, 1805, which was objected to by the defendant, admitted, and exception taken.

They also proved the mortgage executed by Provoost and wife to Bishop, in 1809, with the decree and sale on foreclosure, in 1815, as stated in the complaint; that the complainant received the full amount of his decree, including costs, out of the proceeds of the sale; and that the remainder of such proceeds, being $511.94, was paid over to John D. Provoost, the defendant in such foreclosure suit. Also, that John D. Provoost died in 1841, leaving five children, of whom Sophia and Catharine were married before their father’s death, and, with their husbands, were still living. Eliza married Charles Day, and survived her husband (who died in 1838) some years, and died leaving two children, Charles Day and Amanda Tyte. Margaret died in 1832, leaving no issue, and her husband had since deceased; and Peter was yet living.

Catharine Eogal, one of the plaintiffs, and wife of another plaintiff, was then offered as a witness by the plaintiffs; the defendant’s counsel objecting, on the ground that she was the wife of one of the plaintiffs. The objection was overruled, and the Court directed that the witness be sworn on behalf of the plaintiffs other than herself and her husband; the defendant’s counsel excepting. In giving her testimony, after stating that she was the daughter of John D. Provoost, and giving some details of marriages

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and deaths in the family, she said: “ I recollect that my mother had a lot in Essex street; I have been on the lot in Essex street as long as I remember, and during the life of Aunt Tiebout; she had possession of it; my mother granted her the use. I know that lot; I played on it.” Upon her cross-examination, she said: “My mother is dead ever since I was ten years of age; my father was living when I played on the lot in Essex street; nobody lived there in 1837; it was vacant; there was no house on it as long as my mother lived; there were two lots in Essex street that we played on.” No further evidence was given by this witness, or any other, touching the possession of the property by Catharine, or her husband.

Oolloon Bandall, one of the plaintiffs, and husband of another, was also offered as a witness, sworn in the same manner, and testified as to marriages and deaths in the family, under like objections and exceptions.

The plaintiffs then rested, when the defendants’ counsel moved to dismiss the complaint; which motion was overruled and exception taken.

The defendants proved the conveyance to Baab in 1850; that he then entered into possession, erected buildings, received rents, &c.; and also his deed to Pirro, and the entry of the latter in 1856; and the case was then argued and submitted.

The Judge, in a written opinion, decided that the plaintiffs Eogal and Bandall were entitled to redeem the whole or a portion of the mortgaged premises, and, by an order of Court sent the cause to a Beferee, to take and state an account, showing the amount due upon the mortgage, . assuming that $227 was due in 1815, and computing interest after August, 1841, (the date of the death of John D. Provoost,) and also the amount paid by Bishop and the several persons holding under him, for improvements, taxes and assessments, and the amount of the rents and profits received, or which, by due care and diligence? might have been received by them, and to report; to which order the defendants excepted.

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The Referee reported in detail, showing (with corrections made by the Court) the amount due against the mortgagors to be $5,534.07; which was excepted to by the defendants.

Upon the coming in of the report, the cause was again brought on to be heard on the pleadings, proofs and Referee’s report, before Mr. Justice Hoffmax, at Special Term in April, 1860, when he held, that although some of the plaintiffs were barred by the statute of limitations, the others, who were not barred, were entitled to redeem their share of the land, on payment of their portion of the debt, and thereupon a judgment was entered, dismissing the complaint as to the plaintiffs Peter Provoost, Amanda Tyte, Charles M. Day and Alexander Tyte, (upon the ground that they were barred by the statute of limitations,) directing that Catharine Eogal, SophiaRandall, John Fogal and Colloon Randall pay to the defendants, within three months, $2,767.03 being one-half of the amount found due, and that, upon such payment being made, the defendant execute and deliver to them his deed, conveying to them one undivided moiety of the premises,- and directing that the complaint be dismissed as to those plaintiffs, in case they should fail to pay within the time limited.

The defendant Joseph Pirro excepted to some of the findings of facts and conclusions of law filed by the Judge, and appealed to the General Term. The plaintiffs Peter Provoost, Charles M. Day, Amanda Tyte and Alexander Tyte, excepted to so much of the judgment as dismissed the complaint as to them, but did not appeal.

Charles C. Egan, for the defendant, appellant.

I. The complaint should have been dismissed.

1. It did not state facts sufficient to constitute a cause of action. (Dunlap v. Gibbs, 4 Yerg., 94 ; Hoare v. Peck, 6 Sim., 51; Cuthbert v. Creasy, 4 Bligh, O. S., 125; Fyson v. Pole, 3 Younge & Coll., 266; Story’s Eq. Pl., 484, 503, 529; 3 R. S., 5th ed., 503, § 78; Humbert v. Trinity Church, 7 Paige, 195; 3 Atk., 313 ; Jenner v. Tracy, 3 P. Wms., 287,

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n. b; Beekman v. Frost, 18 Johns., 544 , 560, per Spencer, J.; Giles v. Baremore, 5 Johns. Ch., 545 , 553; Kidd v. Cheyne, 18 Jur., 348; Story’s Eq. Pl., § 426; 1 Story’s Eq. Jur., 365, and note.)

2. The whole of the premises were claimed by all, and three could under no circumstances recover. (Cole v. Irvine, 6 Hill, 634 ; Gillett v. Stanley, 1 Id., 121; Miller v. McCan, 7 Paige, 451; Adams’ Eq., 3d Am. ed., 674; Story’s Eq. Pl., 3d ed., § 185; 1 Story’s Eq. Jur., §§ 484, 490; Henley v. Stone, 3 Beav., 355.)

3. Ho disabilities were alleged, and on the face of the complaint the rights of all the plaintiffs were gone by lapse of time. (Beekman v. Frost, 18 Johns., 544 , 560; Giles v. Baremore, 5 Johns. Ch., 545 , 553; 3 Atk., 313; 3 P. Wms., 287, n. b.)

II. Catharine Provoost was not shown to have been seized in fee of the premises at her death. 1. The pretended will was improperly admitted. (Jackson v. Luquere, 5 Cow., 221 .) But it gave her only a life estate. (Harvey v. Olmsted, 1 N. Y. [1 Comst.], 483; Olmstead v. Olmstead, 4 Id., 56; Edwards v. Bishop), Id., 61; Mesick v. New, 7 N. Y. [3 Seld.], 163.) 2. The unrecorded deed was improperly received in evidence as an ancient deed. (1 Greenl. Ev., 9th ed., 28, § 21; 1 Id., § 144; citing Jackson v. Luquere, 5 Cow., 221 ; Jackson v. Lamb, 7 Id., 431; Wilson v. Betts, 4 Den., 201 ; Hewlett v. Cock, 7 Wend., 371 .) 3. It was not executed by four of the parties in interest and referred to, nor acknowledged by any, and, therefore, could not pass a title to the estate of a feme covert. 4. There was no evidence that the parties executing it were the children of Peter Colyer. (Jackson v. Browner, 18 Johns., 37 ; Stokes v. Dawes, 4 Mason, 268; Jackson v. Russell, 4 Wend., 543 ; S. C., in error, sub nom. Russell v. Jackson, 22 Id., 277; Carver v. Jackson, 4 Pet., 83 ; Schermerhorn v. Negus, 2 Hill, 335 .) 5. The deed, if it conveyed anything to Catharine Provoost, gave her but five-sevenths. 6. Catharine Fogal was an incompetent

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witness. (1 Greenl. Ev., §§ 334, 335; Hasbrouck v. Vander voort, 9 N. Y. [5 Seld.,] 153.)

III. Upon condition broken, the legal'title to the estate became absolute in Bishop, and he could have obtained possession without even notice to. the plaintiffs, either by ejectment or advertisement. (1 Rev. L. of 1813, 373, ch. 32, §§ 5, 10; Phyfe v. Riley, 15 Wend., 248 .)

The sale under decree of foreclosure in equity, was equivalent to sale under the power by advertisement. (See Doolittle v. Lewis, 7 Johns. Ch., 45 ; Slee v. Manhattan Co., 1 Paige, 48, per Walworth, Chancellor; Stat. of 1842 ch. 277, § 8.)

IY. In the absence of proof of title in Catharine, as well as to quiet the title, the Court will presume that he was seized in fee, by deed or otherwise. (1 Greenl. on Ev., §§ 16 and 17; Ricard v. Williams, 7 Wheat., 109 ; Brattle Square Church v. Bullard, 2 Metcalf, 363.)

Possession less than twenty years, coupled with circumstances indicative of ownership, has been held sufficient for the presumption of a grant. (Sumner v. Child, 2 Conn. R., 607, 628, 632, per Gould, J.; Clark v. Faunce, 4 Pick., 245 .)

V. Provoost never had an estate, as tenant, by the curtesy in these premises. The will gave but a life estate to Catharine Provoost. There was no proof that she was an heir of Colyer, or that she was married to Provoost; nor that the plaintiffs were the heritable issue of John D. and Catharine Provoost; nor that there was seizin in fact, or possession in her before her death. (2 Black. Com., 126; 1 Roper, 4, 6, 9; 4 Kent, 28, 30; Doe v. Hutton, 3 Bos. & P., 643; Perkins, § 453; Co. Litt., 29.)

YI. Whatever estate Provoost had, yielded to and was merged in the greater, the legal estate, held by Bishop, the mortgagee, on condition broken. (4 Kent, 45; Cooper v. Whitney, 3 Hill, 95 ; Chesterman v. Gardner, 5 Johns. Ch., 31 ; Story’s Eq. Jur., § 629, p. 697; Power v. Lester, 23 N. Y. R., 527.)

But the conveyance, if it did not operate by way of

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release or extinguishment, certainly did by way of forfeit-, ure. (Co. Litt., 251, a. b., 302, b.; 4 Kent., 34, 35; Cooper v. Whitney, 3 Hill, 95 ; Packer v. Rochester & Syracuse R. R. Co., 17 N. Y. R., 283.) No entry by him, after her death, could avail him to create or revive a tenancy. (1 Rop., 9; Perk., § 453; Co. Litt., 29.) The recovery in the foreclosure suit, even if defective as to plaintiffs, defeated the tenancy; and such recovery never having been reversed or set aside, no tenancy thereafter existed. (1 Rop., 42, and note ; Perk., § 475; 3 R. S., 5th ed., 28, §§ 151, 152; Adair v. Lott, 3 Hill, 182 .)

VII. If the mortgage by Provoost and wife was intended to pay his debt, then it was a disposition of her inheritance or estate absolutely, (on non-payment,) subject to no after reckoning or claim of hers. (1 Rop., 138; 3 Bro. C. C., 213; Neimcewicz v. Gahn, 3 Paige, 619.)

VIII. Plaintiffs in foreclosure, .lose rights by lapse of time. (Anon., 3 Atk., 313; Jenner v. Tracy, 3 P. Wms., 287, note b; Doe v. Jesson, 6 East, 80, and note, quoting stat. 21 Jac., 1, ch. 16, § 1; 1 Rev. L. of 1813, 185, 186, ch. 183, § 3; Jackson v. Schoonmaker, 4 Johns., 390 ; Beekman v. Frost, 18 Id., 544, 560.)

IX. An adverse possession commenced in 1815, (see Clapp v. Bromagham, 9 Cow., 530 ,) and ripened into a right of possession in twenty years; and ten years thereafter, (allowed for the disability of infancy,) tolled the right of entry' of the plaintiffs. (1 Rev. L. of 1813, 185, 186; 4 Johns., 390 ; 3 Cruise’s Dig., 368, tit. 29, ch. 1, § 3; Taylor v. Horde, 1 Burr., 60, 119; 2 Salk., 421; 1 Ld. Raym., 741; Smith v. Burtis, 9 Johns., 174 ; Smith v. Lorillard, 10 Id., 339, 356, per Kent, Ch. J.; Jackson v. Ellis, 13 Id., 118; Jackson v. Wheat, 18 Id., 40.) The statute bar applies as well to actions in equity as at law. (Humbert v. Trinity Church, 24 Wend., 587 , 607.)

X. The right to redeem is maintained upon the disability of marriage existing, not in 1815, but in 1841. This would be tacking a disability upon a disability, in violation of the statute. When the statute has commenced

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to run against the ancestor or other person, under whom the plaintiffs claim, it continues to run notwithstanding any disability that may accrue. (Demarest v. Wynkoop, 3 Johns. Ch., 129 , 138; Fleming v. Griswold, 3 Hill, 85 .) The statute begins to run when possession is taken from the mortgagor, which, in this case, was in 1815. (Jackson v. Wheat, 18 Johns., 40 ; Demarest v. Wynkoop, 3 Johns. Ch., 129 , 138; Doe v. Jesson, 6 East, 80; Jackson v. Johnson, 5 Cow., 74 ; Cholmondeley v. Clinton, 4 Bligh, O. S., 1.) Tenancy of Provoost existed, at best, only as to the surplus which was paid into Court, which the heirs could not be delayed in securing, except the interest on such surplus for life. (Cunningham v. Knight, 1 Barb. S. C. R., 399; Jackson v. De Witt, 6 Cow., 316 ; 3 R. S., 5th ed., pp. 31 and 33, §§ 6 and 24; Id., p.43, § 20; Blydenburgh v. Northrop, 13 How. Pr. R., 292, 295, 296.)

Provoost will be regarded in equity as guardian for plaintiffs, and liable to account as such for the surplus. (Van Epps v. Van Duzen, 4 Paige, 70.)

XI. The assumption that $227 is due on the mortgage, is against the allegations in the complaint, as well as the evidence; makes the defendant a trustee of the legal estate for the benefit of the plaintiffs, which by our law in the case of a paid mortgage he cannot be deemed. (Jackson v. Crafts, 18 Johns., 110 and 114.)

The parties seeking redemption must redeem both pieces' of land. (1 Story’s Eq. Jur., 365 ; 2 Ves., Jr., 376 ; 2 Fonb. Eq., B. 3, ch. 1 § 9, n.) If the plaintiffs are permitted to redeem, the sum of $750, with interest, must be paid. (2 Fonb. Eq., B., 3, ch. 1, § 13; Adams v. Brown, 7 Cush., 220 ; Adams’ Eq., 9th ed., 315; Balch v. Onion, 4 Cush., 559 ; Parkist v. Alexander, 1 Johns. Ch. R., 394; 1 Story’s Eq. Jur., 469, § 439.)

XII. Ackley and the subsequent grantees, bona fide purchasers, cannot be defeated by. the unrecorded deed. (4 Kent’s Com., 93; Dickerson v. Tillinghast, 4 Paige, 215 ; Story’s Eq. Jur., 440, 699, §§ 411, 631.)

XIII. The decree is founded upon proof of disabilities

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and other matters not charged in the complaint. (Kelsey v. Western, 2 N. Y., [2 Comst.] 500.)

John Townshend, for plaintiffs, respondents.

I. The decree below is too favorable to the appellant; it ought to. have declared the mortgage satisfied by the sale in 1815, and that all the plaintiffs were entitled to recover possession of the premises, as in ejectment, and without payment for improvements.

II. The cause of action did not arise until the death of John D. Provoost, in 1841. The question is not whether a remainderman may redeem, but whether he must redeem, pending a life estate. Pending the life estate, there could be no adverse holding, as to those in remainder. There can be no cause for a redemption of action until the right is expressly or impliedly disavowed. A redemption by those in remainder would have inured entirely to the benefit of the tenant for life.

III. The exceptions to the witnesses, Catharine Fogal and Colloon Randall, were too broad. (Brown v. Richardson, 20 N. Y. R., 472.) Besides, it seems as if the witnesses might have been examined generally. (Marsh v. Potter, 30 Barb., 506 ; Babbott v. Thomas, 31 Id., 277; Shoemaker v. McKee, 19 How. Pr., 86 ; Barton v. Gledhill, 12 Abbotts’ Pr., 246.) The case of Hasbrouck v. Vandervoort, (9 N. Y., [5 Seld.,] 153,) does not apply.

IV. The unrecorded deed of 1805 was properly admitted, as an ancient deed. (Troup v. Hurlbut, 10 Barb., 354 ; Staring v. Bowen, 6 Id., 109; Clark v. Owens, 18 N. Y. R., 434.)

V. Most of the exceptions arising on questions to the witnesses are rendered immaterial by the decree being adverse to the plaintiffs, Provoost, Tyte, and Day. (Walker v. Dunspaugh, 20 N. Y. R., 170.)

VI. The facts found at Special Term will be received as the facts in the case, and are not the subject of exception and review thereupon.

The deed of May 10th, 1807, was admitted in evidence, without any proof beyond the production of the paper. There was no other evidence of its prior existence; none as to its custody, or where it came from when produced at the trial, and of course, no evidence that the plaintiffs, or either of them, ever had possession of the premises in question, under it. This decision is, clearly, erroneous. (Wilson v. Betts, 4 Denio, 201 ; and Clark v. Owens, 18 N. Y. R., 434.)

The questions: when did the plaintiffs’ right of action accrue, and when did the statute of limitations begin to run ? are not free from difficulty.

When Catharine and John Eogal were married, is not stated in the findings of fact, nor is it stated in them when Sophia and Colloon Randall were married.

The findings of fact do not state that Ezekiel Bishop claimed to own in fee. Although they state that he conveyed iu fee to John Ackley, on the 25th of November, 1815, (having bought the premises on the 4th of September, 1815,) they do not state that Ackley was ever in the actual possession of the lot.

They state that Ackley and wife conveyed in fee, on the 8th of November, 1822, to William Nelson, “ who held the same during his life in fee, and after his death his heirs or devisees held said lot, claiming said lot in fee, until the 22d of January, 1850.”

Whether the plaintiffs Catharine and Sophia, were, or whether either of them was married prior to February 8, 1822, the date of the conveyance to Nelson, does not affirmatively appear; nor do I deem it important to ascertain.

The foreclosure and sale in Chancery did not affect their title as heirs of their mother. She had died before that suit was brought, and they were not parties to it.

If the mortgage was satisfied by the sale in Chancery, so that their estate ceased to be incumbered by the mortgage, the statute of limitations, as against an action of ejectment, would not begin to run, until the death of the

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tenant by the curtesy. If the mortgage is to be treated as satisfied, their legal title is clear, and the statute is no bar, they being at the time of the death of the tenant by the curtesy, under the disability of coverture, and that disability being still continuing. (Jackson v. Johnson, 5 Cow., 74 , 94, 102, 103; Same v. Schoonmaker, 4 Id., 390; Casborne v. Scarfe, 1 Atk., 605.)

They had no right of entry, nor any right of possession during the existence of the estate by the curtesy. And during the continuance of that estate, their right as heirs of their mother could not be defeated by a claim of adverse possession commencing while that estate existed, and after the death of their mother, and not founded on title derived from her. Jackson v. Johnson (supra) is directly in point.

Whether an action to redeem is barred, though an action of ejectment may not be, I am not disposed to decide, at present.

If, as between the plaintiffs and the defendant now claiming to own the lot, the mortgage is to be deemed, in equity, a subsisting incumbrance, and he is to be deemed, in equity, an assignee of it, there are many reasons why the right to redeem should not be regarded as barred.

A doctrine or rule, which requires them to redeem, would impose on them the burden of paying off the mortgage, for the benefit of the tenant by the curtesy, while his estate as such tenant in connection with the other mortgaged property, might be worth more than the amount of the incumbrance. It would impose this burden, without conferring on them the right to the estate by the curtesy, or any interest in it. Though they should pay the mortgage debt, still they would have no right of entry or possession until that estate terminated.

And they would be compelled to do this, merely to preserve their legal right to bring ejectment, after the lite estate had ceased.

In 2 Atk., 333, (Anon.,) a redemption was allowed, and what was said, in regard to the excuse of there being a

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tenant by the curtesy, was not involved in the judgment, and is purely obiter.

Raffety v. King, (1 Keen, 602,) which reviews all the prior decisions, strongly supports the decision of the Judge at Special Term.

Instead of feeling at liberty to overrule his decision on this point, I prefer to not commit myself upon it, and not to pass upon the question, and to leave it open for further argument and consideration, upon a retrial of the action.

That the right to bring ejectment is not barred, if such an action will lie, all agree.

What interest either plaintiff has in the lot, upon the evidence before us, if it be not lost by lapse of time, it is useless to discuss. The case made on a new trial may be entirely different in this regard.

I concur in granting a new trial on the ground first stated, and place my concurrence on that sole ground.

Hothing can be clearer, to my mind, than that this action cannot be sustained, as a suit in equity, to redeem the land in question from the operation of the mortgage executed by Provoost and wife, in 1809. The defendant is neither a mortgagee in possession, nor is that mortgage a lien upon the premises; nor has he ever stood in the place of the mortgagees, except in regard to the life estate of John D. Provoost, which has terminated. At the time of the institution of the foreclosure suit, in 1815, Bishop, the mortgagee, had an equitable lien upon the land, by his mortgage, to the extent of the life estate therein of John D. Provoost, as tenant by the curtesy, in possession, and, also, of the estate, in fee, belonging to Catharine Provoost, at the date of the execution of the mortgage, if she was then, in fact, vested with such fee; and might, by foreclosure and sale, have reached either or both of those estates. If he had brought his suit against the heirs-at-law of Catharine, his decree would have covered the fee, subject to the life estate; in case he proceeded against the husband alone, he was entitled to a

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decree for the sale of the life estate only. For some reason,—perhaps, because he was advised that Catharine’s interest in the premises was, merely, an estate for life, and had terminated at her decease, in 1810, or, possibly, under the belief that the sale of the estate of John D. Provoost would be sufficient, together with the other lot, to satisfy his lien,—the mortgagee saw fit to proceed against the latter alone, and to sell his interest as tenant by the curtesy. If he was governed by the last mentioned estimate, his opinion was justified by the result; for the proceeds of the life estate of Provoost iu this lot, and of his fee in the other, were not only sufficient to pay the claim of the mortgagee, but left a considerable balance to be returned to Provoost. By that foreclosure and sale of the life estate, and without selling the estate in fee, the mortgage was fully satisfied and discharged; and the purchaser entered into possession, and, up to the death of John D. Provoost, occupied, with his grantees, the premises, not as mortgagee, but as the absolute owner of the life estate purchased by him at the foreclosure sale, and nothing more; Catharine’s heirs, in the meantime, remaining the owners of the fee, burdened with the life estate, but discharged of the lien of the mortgage. The purchaser at the foreclosure sale, who, in this case, was the mortgagee himself, not only by his purchase, became seized of the life estate which he bought, but, with his grantee, the defendant, became subrogated to all the rights of the mortgagee in that life estate; but only in such life estate. Ho interest in the estate in fee passed to the purchaser at the foreclosure sale, by subrogation or otherwise; for he did not buy that estate, and took none of the rights of the mortgagee therein. In few words, the defendant stands exactly in the shoes of John D. Provoost, whose interest in the premises, and only that, passed to the purchaser by the foreclosure sale. The fact that the Sheriff executed to such purchaser a deed in fee, is, in this regard, wholly unimportant. To decide otherwise, and hold that the grantee in such deed

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holds adversely to the owner of the fee, would be to establish the principle that any tenant for a term extending beyond twenty years, may, by his own deed, purporting to grant in fee, cut off* the rights of the real owners of that title, which would be monstrous. It seems clear, therefore, that the plaintiff cannot sustain this action as a suit to redeem the fee of the premises from the operation of the mortgage; there being no mortgage lien upon such fee, nor any person, since the decease of the tenant for life, entitled, by subrogation or otherwise, to claim redemption-money, or to remain in possession during the non-payment of moneys secured by mortgage. The interest, by subrogation, of the purchaser and his grantees, as well as their rights as owners of the life estate, terminated upon the death of John D. Provoost; and they never had any interest in the fee.

But this is not, merely, an action in the nature of a suit in equity, to redeem the property from the lien of a mortgage ; it has a double aspect. If the facts warrant it, the plaintiffs may, under the pleadings, be entitled to a judgment, as in an action of ejectment, for the possession of the land itself, or of an undivided portion of it, without condition of payment on their part. Without pausing to consider, therefore, whether the defendant in this case may avail himself of an error in a judgment awarding to him several thousand dollars, as redemption-money, to which he is not entitled, or the question as to whether the Judge had jurisdiction, at Special Term, to render a judgment at all, after a trial, before him without a Jury, had shown, (as I think it did,) that the plaintiffs were not entitled to any relief in equity, I pass to the examination of the further questions involved in the suit, and presented upon this appeal.

Assuming that the plaintiffs are the owners in fee, as the heirs-at-law of their mother, there was no possession by Bishop or his grantees, prior to the death of John D. Provoost, adverse to the title of such owners ; the estate by the curtesy having been carved out of, and being held

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under and in subordination to the fee. They were, simply, tenants, though for Provoost’s life, and without payment of rent, of the owners in fee; and, as such, were liable to them for waste, &c. If, therefore, the plaintiffs are such owners in fee, they became entitled to the immediate possession of the premises, upon the death of Provoost ; and might then, or may at any timé within twenty years after, but not before that period, maintain their action, in the nature of an action in ejectment, for the recovery of such possession.

But, to enable the plaintiffs to succeed, it is absolutely necessary for them to show that Catharine Provoost died seized of the premises, or some portion of them, in fee. Her father’s will given in evidence, did not establish this; for the devise was in general terms, and contained no words of limitation or inheritance, and, therefore, passed only a life estate. (Harvey v. Olmsted, 1 Comst., 483.) Besides, even if the devise had carried a fee, the fee of this particular lot would not have vested in Catharine, to the exclusion of her sisters, by such devise alone, and without a severance by the three sisters of the property given to them, respectively, and the setting apart of this parcel to Catharine. It was, therefore, incumbent upon the plaintiffs, in order to entitle them to recover more than the share falling to Catharine as one of the seven heirs-at-law of her father, to show, that, by some act, subsequent to the death of her devisor, Catharine’s life estate became changed to an estate in fee in the lot in question ; and this they attempted to do by the production of the alleged deed of 1805.

This deed states, upon its face, that it is made by Margaret, the widow of Peter Colyer, and Charles Colyer, Jacobus Colyer, Peter Colyer, Jane Van Cott, Eve Provoost, Margaret Tiebout, and Catharine Provoost, (described in the deed to be the children, devisees, and heirs-at-law of Peter Colyer, deceased,) with their respective wives and husbands ; and, after setting forth the will of Peter Colyer, and reciting the fact that doubts have arisen whether the

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words contained in the will are sufficient to pass estates in fee to Jacobus, Eve, Margaret and Catharine, purports to grant and convey to each of the parties to such deed, from all the others, the lands devised to each of them by the will; one of the two lots in Essex street being designated and so conveyed to Margaret Tiebout, and the other, being the lot in controversy, to Catharine Provoost. But such deed is not signed either by Jane Van Cott or Margaret Tiebout, two of the alleged children of Peter Colyer, or their husbands; and purports to be signed only by Margaret Colyer, the widow, and Charles Colyer, Jacobus Colyer, Peter Colyer, Eve Provoost, and Catharine Provoost, five of the seven heirs-at-law, with their wives and husbands, although other seals are attached to the instrument, opposite blanks. The name of Jane Colyer, too, (stated in the body of the deed to be the wife of Jacobus,) appears twice among the signatures,.; one purporting to have been written by her, and the other attested by a mark or cross; and the three subscribing witnesses simply attest that it was “ sealed and delivered in presence of” themselves, without stating whether all the persons whose signatures are upon the paper, so sealed and delivered it, or only a part of them. Some of the persons, too, whose names appear among the signatures, signed in no other way than as marksmen ; and there is no evidence upon the face of the paper that such marks were made by those persons. Fo evidence, beyond what may be inferred from the production of the paper by the plaintiffs, themselves, was given touching its custody, at any time between the date of its alleged execution and the trial of the action; and it does not appear to have been either acknowledged or recorded.

It is fully* settled, with us, that an instrument purporting to have been executed more than thirty years before it is offered in evidence, is not entitled to be read as an ancient deed, upon presentation, merely, and without further proof of its authenticity. The bare efflux of time is not sufficient. Proof that the paner offered has for that period, ‘

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been in the custody of the party who, if genuine, would be the proper person to hold it, is essential. ETor is that enough. Evidence of possession under the deed, during the thirty years, or some other corroborative evidence of its authenticity, is also necessary. (Jackson v. Luquere, 5 Cow., 221 ; Jackson v. Lamb, 7 Id., 431; Hewlet v. Cock, 7 Wend., 371 ; Wilson v. Betts, 4 Denio, 201 .) In the case last cited, proof that the paper offered had been in the possession of the proper custodian for sixty years was held insufficient, in the absence of further corroborative evidence. And, beyond all this, it is essential to the admission of the instrument as evidence, that it be wholly free from any just grounds of suspicion. (1 Greenl. Ev., § 21 and note 4.)

At the time this deed was read in evidence, none of these prerequisite facts had been proven. The production of the paper by the plaintiffs does not establish a presumption that it had been in their custody or that of their ancestor, from the day of its date; for each of the parties to it, all being grantees, was as well entitled to its possession as was Catharine Provoost, and, for aught that appeared, some one of them had held it until the day of the trial, notwithstanding they were her grantors. It is true that, after the deed was read in evidence, an attempt was made to prove that Catharine Provoost was in possession of the lot in controversy at some time previous to her death in 1810; and the Judge has found, as a fact, that John D. Provoost, and Catharine, his wife, were in the actual possession of the premises before and at the time of the execution by them of their mortgage to Bishop, in 1809.

Upon a careful consideration of the evidence embodied in the printed case, I find myself unable to concur with the learned and able Judge who tried the cause, in regard to this question of fact. There is no evidence whatever in the case tending to prove possession, to any extent, in Provoost or his wife, aside from what is contained in the testimony of Catharine Fogal; and that, it seems to me,

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is insufficient to establish such possession. She testifies, after the mists of more than half a century have gathered around her memory, that she played, when a child less than ten years old, not upon the one lot in question, but upon two lots in Essex street; being, probably, the two lots devised by Peter Colyer with another lot in Eagle street, to his three daughters, Eve, Margaret, and Catharine. If it may be inferred that the witness so played there by permission or the direction of her mother, therefore, it is quite as reasonable to suppose that the mother exercised this right by virtue of her claim to all three of the lots, and her ownership in freehold of one of them, not, as yet, then set apart to her or severed, as it would be to assume that she had or claimed sole possession of the one in question; for,' until partitioned, each of the sisters was equitably entitled to the possession, jointly with the other two, of either or all of the three parcels. The theory suggested will also apply to the alleged use of the lot stated by the witness to have been granted by her mother (who was incapable of making a grant without joining her husband) to Mrs. Tiebout, and the alleged possession of the latter; a possession, by the way, thus attempted to be proved, simply by the use of the legal term itself, without showing in what manner or to what extent it was had; possession, too, of a vacant lot, upon which there was no house, and where, notwithstanding such possession, the children of Mrs. Provoost were sent to play. But, be that as it may, I think the testimony of Mrs. Eogal, (as well as that of Colloon-Randall,) was inadmissible under the rule as it stood when such evidence was given. The case of Hasbrouck v. Vandervoort, (5 Seld., 153,) seems to me to be conclusive upon that point.

Besides this, it is quite apparent that the instrument is incomplete as a deed, and could never have been delivered to any of the parties, except for* the purpose of being executed by them. The object and design of all the parties appears, clearly, to have been, not merely to

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carry into effect the intention of Peter Colyer, as expressed in his will, but to go beyond that, and grant by and on the part of all the heirs-at-law, a particular lot, in severalty, to each of the three daughter's, in fee, in lieu of the life estate which she had, by the will, in an uncertain one of three lots, and, also, to grant and release to each of the other devisees the lands devised to them, respectively, as well as to covenant, as they did, with each other, that they would, severally, abide by the will, according to the construction thus given to it, and carry it into effect. The great object of each of the parties to the proposed deed, therefore, was to perfect and quiet the title to the lands devised to him; and such grant and release to himself constituted the consideration for his execution of the deed. This, then, being the motive of the parties, it is more reasonable to suppose that the deed was stopped in transitu by some of them, in its passage for execution, than to believe it was finally delivered to any of the parties, as a complete deed, before it was executed by all the grantees.

There is still another reason which ought, of itself, to have precluded the admission of the instrument, even if its execution by all the parties whose signatures appear upon it, had been fully proved;—that is, it did not prove, nor tend to prove, any fact stated in the complaint. Certainly, the title claimed by the plaintiffs to have been vested in their ancestor by a deed of a certain description, executed by fifteen persons named in the complaint, and in no other manner, cannot legally be proven by the pro-1 duction of a deed signed by eleven only of those persons. I am of opinion, therefore, that the deed was improperly permitted to be read, and that there is no evidence in the case tending to establish the fact that Catharine Provoost was ever seized or possessed of a fee in the premises, except as one of the seven heirs-at-law of her father.

Conceding, however, for a moment, that all of the persons named in the deed of 1805, as parties to it, were

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heirs of Peter Colyer, and his only heirs-at-law,—that the deed was duly delivered to Catharine Provoost by those persons whose signatures appear upon it,— and that it was properly received in evidence;—still, the judgment cannot be sustained, even upon the theory of the Judge himself. For, in that case, the two heirs-at-law who failed to sign the deed are the owners of two-sevenths of the premises. So, too, as to Eve Colyer, a married woman, who signed the deed, but failed to acknowledge it in the manner required by the statute then in force, so as to render it effective. (1 Webster’s L. N. Y., 478.) Nothing passed by her deed, and she remains the owner of another seventh. Surely, then, the plaintiffs who have obtained the judgment are not entitled to the possession of that portion of the premises which is represented by those three-sevenths, even though it may clearly appear that the defendant has no right whatever to such possession. They must rest upon the strength of their own title, and cannot avail themselves of the weakness of that of their adversary. I think, too, that the learned Judge erred in dismissing the complaint, as to a part of the plaintiffs, upon the ground that they were barred by the statute of limitations. The action was brought within twenty years after the death of the tenant for life; when the right of the plaintiffs to the possession accrued. For these reasons, I am of opinion that the judgment cannot be sustained upon any supposable theory, and that it should, therefore, be reversed, with costs, and a new trial granted.