Page images
PDF
EPUB

2

feet wide, and extends along the shore of Lake Ontario for a distance of nearly half a mile. While somewhat irregular in shape, it may, for all practical purposes, be described as being bounded on the north by Lake Ontario, on the east by the old outlet of Buck Pond, so called, on the south by Buck Pond and the John Tennison farm, so called, and on the west also by said farm. The tract is a part of township No. 2, short range of townships in the town of Greece, Monroe county, N. Y. The township is bounded on the east by the Genesee river, extends westerly for its entire length along the shore of Lake Ontario, and contains over 20,000 acres, besides 5 ponds, each covering a few hundred acres. In 1803 this township was owned by 16 tenants in common-among others, Sir William Poultney and Oliver Phelps. In that year one William Shepard made a map and survey for the owners of said township, dividing it into lots, two of which were numbered 45 and 43, respectively, each containing about 300 acres, exclusive of the area covered by Long Pond, which was located in lot 45, and Buck Pond, located in lot 43. These two lots, which are the only ones directly involved in this controversy, abut upon the lake and adjoin each other; lot 43 lying immediately easterly of lot 45. By deed dated October 4, 1804, to which the Shepard map and survey were annexed, and made a part thereof, the owners partitioned the township among themselves. Lot 45 was allotted to Sir William Poultney, and lot 43, together with lot 44 and other lots lying still further to the east, all being of substantially the same size, was allotted to Oliver Phelps. In 1817 one Valentine Brouthers made a map and survey of lot 45, dividing it into separate parcels and making a description of each. By deed dated January 7, 1831, which was duly recorded on the 22d day of September, 1832, the Poultney estate conveyed to one John Tennison one of said parcels, being a farm lying in the easterly part of lot 45, which was described by metes and bounds, "containing one hundred twenty-three and ninety-one one-hundredths acres, as surveyed by Valentine Brouthers, be the same more or less.” On the ist day of April, 1847, John Tennison, by an instrument in writing, leased the farm to Delos Lewis, who is the father of the plaintiff, and was the husband of Ann Lewis, deceased, a daughter of John Tennison, now deceased. Delos Lewis continued to occupy the premises from that time as such tenant, residing thereon with his wife until the death of John Tennison, which occurred about the year 1860. By deed dated January 19, 1861, which was duly recorded January 21, 1861, in which the premises are described precisely the same as in the deed from the Poultney estate to John Tennison, the other heirs of John Tennison, deceased, conveyed the Tennison farm to Ann Lewis, plaintiff's mother, and the wife of Delos Lewis. Under such deed she, with her husband, occupied said farm until the year 1881, when she (Ann Lewis) died intestate, and her husband, Delos Lewis, became tenant by the curtesy, with remainder to the plaintiff, John T. Lewis, her only heir and next of kin. By quitclaim deed dated the 21st day of August, 1890, which was duly recorded, Delos Lewis conveyed his life estate in the farm or premises described in the Tennison deed to the plaintiff, John T. Lewis, and he thereupon became vested with the whole title to said premises, and continued to own and was in possesand 120 New York State Reporter sion of the same at the time of the commencement of this action. As we have seen, lot 43, which was immediately east of lot 45, and other lots lying east of lot 43, were allotted to Oliver Phelps by the partition deed referred to, which is the common source of title of all the parties to this action. It must be conceded that by the allotment under such partition deed, and by mesne conveyances, which it is unnecessary to enumerate, the defendants acquired the record title to the premises in dispute, if such premises were located in, and were a part of, lot 43.

The theory of the action, when brought, was that the plaintiff was the owner in fee of the lands in dispute, because they were part of lot 45, and covered by the deed from the Poultney estate to John Tennison, and by the mesne conveyances to the plaintiff. In the complaint, after alleging "that the plaintiff is the owner and seised in fee and is in possession of the following described real property," and then describing such property by metes and bounds, it is further alleged "that the plaintiff has been in possession of said real property for upwards of one year next preceding the commencement of this action as sole tenant, claiming it in fee, and that he holds the same as heir at law of Ann Lewis, deceased, and as purchaser by deed from Delos W. Lewis, and was in possession at the commencement of this action; that the defendants unjustly claim an estate or interest in the said property, claiming to have obtained the same by purchase from the heirs of Oliver Phelps, deceased, and claiming to be the owners in fee of said property.” To such complaint the defendants made answer, denying that the plaintiff was the owner of or had been in the possession of the premises for a year previous to the commencement of the action, and alleged that they (the defendants) were the owners in fee simple of the premises in dispute. Thereupon the plaintiff served a reply in which he alleged, in substance, and so far as it is important to note, that he had acquired title to the premises "under a claim of title exclusive of any other right, founding the same upon written instruments as being conveyances of the premises in question, and there has been continued occupation and possession of the premises for more than twenty years under the same claim, before the commencement of this action.” And it was further alleged, in effect, that such being the title, possession, and claim of the plaintiff, the conveyances to the defendant were champertous, and therefore void.

Upon the pleadings as thus framed, and upon the opening of plaintiff's counsel, the defendants made a motion at the commencement of the trial to compel the plaintiff “to elect upon which title he will standwhether as heir at law of Ann Lewis, as alleged in the complaint, or as purchaser by deed from Delos W. Lewis of Shelly title, on the ground that the two titles are absolutely inconsistent and hostile to each other.” The motion was denied upon the ground, as we must assume, that by the pleadings or opening it did not appear that the written instruments referred to in the reply or opening were any other than the deed from the Poultney estate to John Tennison, and the mesne conveyances of the Tennison farm to the plaintiff. Of course, it would not do for a plaintiff to claim in the same action that he had acquired title to premises by adverse possession, under a claim of title founded upon a certain written instrument, and at the same time assert that he had acquired such title by virtue of a claim of title founded upon another and different instrument, in no manner connected with the first. The provision of section 369 of the Code is :

"Where the occupant or those under whom he claims entered into possession of the premises under claim of title exclusive of any other right, founding the claim upon a written instrument as being a conveyance of the premises in question.”

We think it cannot be held that a person may acquire title to premises by adverse possession, under a claim of title founded upon several instruments in writing, where such instruments are not in any manner connected, or made by the same grantor. In other words, that a claim of title cannot be founded upon all of such instruments, unless they all relate to or originate in the same source of title. Whatever ambiguity there may have been as to plaintiff's claim under the pleadings, it is made entirely apparent by the evidence given by him, or in his behalf, upon the trial.

The plaintiff, upon the trial, endeavored to prove: First. That he was the owner of the premises in question by virtue of the Tennison deed and the mesne conveyances to him. In other words, that the premises in question were a part of lot 45, and were included in and covered by such deed. Second. That although the disputed premises were not actually within lot 45, or included in the Tennison deed, he nevertheless became the owner by adverse possession, because he or his grantors were in possession, claiming to own the same under a claim of title founded upon the Tennison deed and the mesne conveyances to him, for a period of more than 20 years before the commencement of this action. Third. That even if the premises in question were not a part of lot 45, were not included in the Tennison deed, and he did not acquire title to the same by adverse possession, under a claim of title based upon the Tennison deed or the mesne conveyances to him, yet he became the owner of such premises by adverse possession under a claim of title founded upon a written instrument, under and by virtue of the Shelly and Nash deeds, so called, the history of which deeds is briefly as follows: As early as 1855, and for some years thereafter, one Jonathan Shelly, who was a fisherman, lived on the shore of Lake Ontario, in a shanty which he had erected some distance east of the old outlet of Buck Pond, and east of the premises in dispute. Some time prior to 1863 Shelly moved onto the disputed premises and erected another shanty, in which he lived. In the year 1863 a man by the name of Eli Nash, who was also a fisherman, and lived in another shanty on the shore of the lake, entered into an agreement with Shelly to purchase his (Shelly’s) shanty, and agreed to pay therefor the sum of $25. Nash went to a lawyer to procure a conveyance of the shanty from Shelly to himself, and was advised by such lawyer to have Shelly execute a deed of the entire beach on Lake Ontario between the old outlet of Buck Pond, on the east, and the Tennison premises, on the west, in order to prevent Shelly from building another shanty upon such premises. A deed was prepared accordingly by the attorney, which described the entire premises in dispute. It was executed by Shelly and delivered to Nash, and bears date June 5, 1863. In the same year Delos Lewis, who at the time was lessee of the Tenand 120 New York State Reporter nison farm, purchased the Shelly shanty from Nash for the sum of $50, and Nash executed to Delos Lewis a deed bearing date December 20, 1863, which contained the same description as the deed from Shelly to Nash, and which also purported to convey the entire premises in question. By deed dated March 13, 1891, Delos Lewis assumed to convey the same premises to his son John T. Lewis, the plaintiff in this action. Neither of said deeds were recorded until the 27th day of July, 1891, and not until after, as it is claimed, the plaintiff had acquired title to the premises therein described by adverse possession, under a claim of title founded upon such written instruments. The Shelly and Nash deeds had lain dormant for nearly 30 years, and, so far as the evidence discloses, no one except those immediately connected with the giving of such conveyances knew of their existence. There is not a particle of evidence to indicate that Delos Lewis ever said to any person during that time that he claimed to own the premises under or by virtue of the Nash deed, or that he ever intimated to any one that he had such an instrument. The premises were not assessed to him; he paid no taxes; there was absolutely nothing to indicate during all those years that he had title to the premises by virtue of a written instrument, or that he claimed to have.

86 N.Y.S.-26

At the time of the purchase by Delos Lewis from Nash, a man by the name of Lowden was occupying the Nash cottage, so called, with his consent, which cottage was located near the southwesterly corner of the premises in dispute, and, after obtaining a deed from Nash, Delos Lewis entered into a verbal agreement with Lowden by which he (Lowden) was given permission to occupy the Nash cottage and some portion of the premises for a yearly rental of $10, to be paid in work. Under such agreement Lowden occupied the Nash cottage from 1863 until the year 1893 or 1894, when he was sent to the Monroe County Poorhouse, and the cottage was pulled down by the defendant Beative, who claimed to own it.

The evidence conclusively establishes that Nash knew when he purchased from Shelly that he (Shelly) had no right, title, or interest in or to the property described in the deed executed by him; that he was simply a squatter upon the premises; had erected his shanty thereon for his own purposes, and to enable him more conveniently to carry on his occupation of fisherman. Also that Nash, who was likewise a fisherman, and had erected for his convenience a cottage or shanty upon the premises, was also a squatter thereon. The evidence also conclusively establishes that when Delos Lewis purchased the Nash cottage, and accepted the deed of the entire premises from him, he fully understood the nature of the possession of both Shelly and Nash, and knew that neither of them had any title to the premises which they assumed to convey,

Delos Lewis, who was called as a witness for the plaintiff, upon his direct examination testified:

"There was a time when Eli Nash or a man by the name of Shelly constructed a cottage of some kind down on the beach a little fish shanty. He was a hunter and fisher, and made his liring in that way. I knew at the time that Shelly conveyed whatever right he had there to Eli Nash. I did not see the papers executed, but I heard of it."

On cross-examination he stated : "I couldn't say how long I knew Shelly before he sold to Nash, but he was there a few years. Shelley's cottage or dugout was on the beach there. I don't know how long he was there. I can't tell anything about how Shelly tirst went there. He squatted down there and built up a shanty, and used to fish and hunt there.

I suppose Shelly sold his cottage to Nash.” And in answer to the question, "What did you understand Shelly had to give Nash?" the witness answered, “I did not understand he

had any."

When the whole evidence bearing upon the question is considered, we think it should be regarded as conclusively established that when Delos Lewis, the plaintiff's immediate grantor, took the deed from Nash, describing the premises in question, he understood that Nash had no title to the same, and also that Shelly, Nash's grantor, was equally destitute of such title. In other words, he knew they were both squatters upon the premises, and only owned, if anything, the shanties which they had respectively constructed for their own use and convenience.

We have thus far indicated the character of plaintiff's record title, so far as it is based upon written instruments, namely, upon the Tennison deed and the mesne conveyances to the plaintiff thereunder, and the Shelly and Nash deeds, and the mesne conveyances to the plaintiff following such deeds.

Upon a former appeal to this court in this action, the evidence being substantially the same as now before us, it was held, as matter of law, that the lands in dispute were not included in, and did not form a part of, lot 45; were not included in or covered by the Tennison deed; and that the plaintiff did not acquire title thereto by such conveyance, or by adverse possession under a claim of title founded thereon. 52 App Div. 617, 65 N. Y. Supp. 263. Following such decision, it was held by the learned trial justice upon this trial “that the Tennison deed describes land wholly within lot 45;

that the plaintiff has no record title under the Tennison deed to the land in question. * * * The Tennison deed, inasmuch as it does not convey the premises in dispute, cannot be made the foundation in this action of a title by adverse possession." Therefore the plaintiff's right to recover under or by virtue of the Tennison deed, or the mesne conveyances to the plaintiff thereunder, is eliminated from our consideration, yet the evidence bearing upon that issue is still before us, and if sufficient to indicate that Delos Lewis, plaintiff's immediate grantor, claimed to own the premises in dispute under a claim of title founded upon such deed, rather than upon the Nash deed, it may become important to determine whether or not he can successfully make a like claim of ownership, and found such claim of title upon the Nash deed. But passing that question for the present, does the evidence justify the finding of the jury that the plaintiff acquired title to the premises in dispute by adverse possession? The acquisition of such title is regulated, so far as important to note, by sections 369 to 372, both inclusive, of the Code of Civil Procedure. Such title can only be acquired in one of three ways:

First. "Where the occupant or those under whom he claims entered into possession of the premises, under claim of title, exclusive of any other right;

*

« PreviousContinue »