author: By the Court :—Sedgwick, Ch. J.

text:
    CHARLES W. DOHERTY, et al., as Grantors of Charles Jones, Respondents v. GEORGE W. MATSELL, Jr., et al., Appellants.

      Void or voidable tax lease, possession under, effect of on owner—Statute of limitations, when it begins to run—Matters not constituting claim outside of a tax lease—Unequivocal hostile claim necessary.

    Possession under a void tax.lease will not constitute adverse possession against the true owner where the possessor makes no claim except under the lease.
    In such case the statute of limitations does hot begin to run until the expiration of the tax lease, and the true owner has twenty years thereafter within which to bring ejectment.

      The erection by such tax lessee of buildings on the leased premises, renting the buildings and exclusively controlling them, do not of themselves establish a claim hostile to a claim under the lease; nor do they in connection with an assignment and a deed of the character next hereafter referred to.
    An assignment by a lessee in a tax lease of “ all my estate, etc., which I now have by means of said indenture or otherwise ” (the indenture referred to being the tax lease), accompanied by a quit claim deed simultaneously executed by the lessee and his wife, do not indicate or establish any actual claim outside of the tax lease.
    The tax lessee upon (after making such assignment and quit claim deed) re-entering into possession during the running of the tax lease without any re-conveyance or re-assignment might then begin a possession adverse to the owner in fee; but to do so he must unequivocally make an actual claim hostile to any claim under the tax lease.
    Before Sedgwick, Ch. J., Freedman and Truax, JJ.

      Decided June 20, 1888.
    Appeal from judgment.
    Action of ejectment, commenced October 19, 1883.
    The facts sufficiently appear in the opinion.
    The case was tried before O’Gormar, J., without a jury. At the conclusion of the testimony the judge granted a motion to. dismiss the complaint, writing as follows:
    “In this action of ejectment, the general term of this court directed a new trial, for the purpose of determining the question left undisposed of at the former trial, whether the plaintiffs had good title in the premises in dispute. 54 Super. Ct., 29. As to a claim to adverse possession, which'had been set up by the defendants by reason of the-occupancy of the premises by George Matsell, senior, under certain tax leases, the general term held, that such adverse possession did not exist, chiefly becaus'e the owner of the fee had not, during the running of these leases, the right to immediate possession, and could not have succeeded in action of ejectment against said Matsell, senior.
    “At the recent trial before me without a jury, the defendants changed their plan of defense, and produced evidence for the purpose of proving that these tax leases were absolutely void; that they presented no obstacle to the recovery of possession by.the owner in fee, and that, therefore, said Matsell, senior, had adverse possession as against the owner.
    “It is convenient to deal first with this new contention on the part of the defendant, because, if he can sustain it, the plaintiffs’ action must fail.
    “The first of these tax leases was executed in Sep- ■ tember, 1848, by the mayor, etc., to said George W. Matsell, senior, for the term of twenty-five years, which wrould not expire until September, 1873. This lease, soon after its execution, duly recorded at the request of Matsell, senior, and he thus called public attention to his title as tax lessee. Matsell, senior, first entered into possession of the premises in 1849, and, as far as appeared, under that tax lease. There is no evidence that he then or afterwards, made any other claim of title.
    “ He remained in possession of the premises, built on them, collected rents, until he conveyed them to one Mickle, by a quit-claim deed, dated February 28,1857. He then also assigned the tax lease to Mickle, for a valuable consideration ($5,057), as stated in the deed of assignment. Mickle thereupon entered into possession, and received rents, etc., for a year, when he resigned his possession to Matsell, senior, who re-entered upon the premises, but without any written conveyance to him by Mickle, or any reassignment to Matsell, senior, of the tax lease.
    “ During the whole occupancy of the premises by this Matsell, before his conveyance to Mickle, he never in any way disaffirmed- or impugned the validity of the tax lease to him, or set up or claimed any other title to the premises than that which depended on the tax sale.
    “In executing the quit-claim deed, no other title was asserted by Matsell, and his assignment of the tax lease to Mickle for $5,057, was not only inconsistent with any claim that the tax lease was invalid, but was a direct admission that it was valid and valuable.
    “ The defendants now claim that that tax lease was absolutely void.
    “I am not of that opinion.
    “At the worst it was only voidable and was effectual until its invalidity was asserted and proved in some legal proceeding to avoid the sale.
    “No claim that it was invalid was made by the owner in fee or by Matsell, senior, during the whole term of the- lease, for twenty-five years. Matsell, senior, derived from it and enjoyed all substantial advantages and emolument, as if it was a valid lease, and he could not have been allowed to impugn its validity, after its term had expired. Ingraham v. Baldwin, 9 JSf. Y. 46. A tenant, accepting the advantages of a lease, is estopped from denying the title of his lessor, or the truth of the recitals in the lease. Bridges v. Wyckoff, 67 A7". Y. 130.
    “If Matsell had any interest in the premises, other than that which he deserved under the tax lease, it was for him to show that interest. Bedell v. Shaw, 59 A7". Y. 49.
    “ Whether the lease was void or voidable, Matsell, senior, held under that title and none other, up to .the time of his quit claim deed to Mickle, and if that title was, as is now claimed, void, Matsell, senior, had no title under a written instrument, as under section 370 of the Code, or under a claim of title without a written instrument, exclusive of' all other title, as under section 371 of the Code; and he was a mere intruder and trespasser on the premises. These sections of the Code are only declaratory of the rules of law in force when these transactions occurred. Mere occupancy of land is not adverse possession. In order to constitute adverse possession, sufficient to defeat an ejectment, the defendant must show that his occupation was under claim of title, hostile to every and all other title. Sturges v. Parkhurst, 50 Super. Ct. 306, 307, 311; Bliss v. Johnson, 94 2V. Y. 242. The requisites of adverse possession are occupation and the quo animo. Jones v. Smith, 73 N. Y. 205.
    “ Up to the date of the quit-claim deed of Matsell, senior, to Mickle, the former had no such adverse possession of the premises in question.

      “ Mickle, holding or appearing to hold, under a deed from Matsell, senior, might have claimed adverse possession, as against the owner in fee, for the year during which he, Mickle, did occupy the premises, but there is no ground whatever for any presumption that Mickle ever acquired, or claimed to have acquired any title to the premises under the quibclaim deed, specially, and apart from the title depending on the tax lease, assigned to him by Matsell, senior, simultaneously with the execution of the quit-claim deed. On the contrary, the only reasonable presumption is that the tax lease was the written instrument on which he relied, to which the quibclaim deed was merely subsidiary. The tax lease was the only written instrument that Matsell, senior, had to show for any title, or color of title, which he may then have claimed. Mickle, therefore, had no possession adverse to the plaintiffs.
    “ What was the attitude of Matsell, senior, on his re-entry, after Mickle had retired? This, the defendants regard as the cardinal question in this case, for, if Matsell, senior, on re-taking possession, acquired any title, on which adverse possession could be founded, a period of twenty years adverse possession might be claimed against the plaintiffs.
    “ Matsell, senior, when he re-entered, had no written reconveyance from Mickle to him, and no re-assignment to him of the tax lease. So far, he has no written title, and there is no evidence that he made any claim of title, exclusive of all other title, as required by section 372 of the Code. But he soon secured a written conveyance to him, on which he might support a claim to right of entry and possession. A tax lease was executed by the mayor, etc., to one Owens, in November, 1861, and assigned by Owens to him, Matsell, senior, for value, in 1862. This lease was for fifteen years and would not expire until November, 1876, and, for all that appears, he held under that lease as his only ground of title.
    “ It is now claimed that this lease also was absolutely void. As I have said as to the former lease, Matsell, senior, never, in any way, impugned the validity of this lease during its existence. If he did not hold under that lease as his claim of title, he was as wholly without title as he had been before he executed his quit-claim deed to Mickle. In either case he had no adverse possession.
    “ There is still another aspect of the case, as to which a word should be said. Accepting the defendants’ proposition that the two tax leases were absolutely void, they yet would, be valid as licenses, enabling Matsell, senior, to enter upon the premises and collect the rents thereof. In such a case, possession so obtained does not constitute adverse possession. St. Vincent’s Asylum v. Troy, 76 N. T. 113.
    “ Matsell, senior, executed a deed of bargain and sale of the premises to his son, George W.'Matsell, junior, on April 22, 1870, and Matsell, junior, entered upon and has continued to occupy the premises until the commencement of this action, October 19, 1883.
    “ The only claim of adverse possession, in my opinion, which can be made with any semblance of authority, by the defence, is during the one year during which it is claimed that Mickle held under a written instrument— that is, the quit-claim deed from Matsell, senior, and the period when the defendant, George W. Matsell, son of Matsell, senior, held actual possession, after execu-. tion of the deed of bargain and sale from Matsell, senior, to him, April 22, 1870', and the time of the commencement of this action, October 19,1883, which two periods, together, would not amount to twenty years.
    “ The question as to whether the tax leases were, by reason of defects in the proceedings, antecedent to their execution, voidable, and could have been set aside, if proper and timely measures had been taken, either by the owner in fee, to set aside the sale, or by the lessee, to recover the money paid by him, need not be discussed.
    “ Conceding that they were voidable, neither the owner in fee, nor the tenant, Matsell, senior, did take any such measures and the leases became unassailable, and binding on all parties concerned, by the inaction of those who were in a position to impugn them.
    “ The tax leases, as against the parties to them, and as against the owner in fee, were not invalid, but were effectual and binding. Clark v. Mayor, etc., Super. Gt., January 3, 1888.
    “ But even granting that these leases were invalid, there is enough of evidence, direct and inferential, that Matsell, senior, treated and bought, and used these tax leases as muniments of title, that he sold one of them for a considerable sum of money, and that he never made any claim to title to the premises, on any other ground.
    “ It is my opinion that the evidence fails to support the claim of adverse title in Matsell, senior, or in the defendant, Matsell, junior, for a period long enough to defeat this action.
    “ The only remaining question is as to the title of the plaintiffs.
    “In an action of ejectment the law requires that the plaintiff prove that he or his ancestor, predecessor, or grantor, was seized, or possessed, of the premises in question, within twenty years before the commencement of the action. Sherman v. Kane, 86 JY. Y. 64. Plaintiff can recover only on the strength of his own title, not on the weakness of his adversary. Bowers v. Arnoux, 33 Super. Ct. 530.
    “The various objections made by the defendants to the testimony, on the part of the plaintiff, in support .of their claim of title for more than twenty years before the commencement of this action are not well taken. The testimony of Samuel Waldron was as clear, distinct, and definite as to transactions which occurred in 1828, and as to the seisin and possession of Yallis Hopper at that time as could have been expected, and was properly admitted as evidence.
    “ The objections to the admissibility of the various deeds put in evidence by the plaintiffs are not sustained. Hunt v. Johnson, 19 JSf. Y. 279, 293.
    “ The identity of the premises as described in the deeds with the premises in suit, is sufficiently proved by Holmes the surveyor, and by the maps, plaintiff’s Exhibits 3 and 13. The identity of the parties to the several deeds is sufficiently proved.
    “ The objection as to the deed by Bayley and wife, to James Hathaway, that the execution by the wife was not properly acknowledged, is not material. The deed of the husband alone conveyed all the estate subject to a contingent and inchoate right of dower in the wife, capable of maturing only on his death. There is no proof that either the husband or wife here, is living or dead. In any case the husband had the questionable right to transfer by deed, two thirds of the property. Witthaus v. Schack, 105 JST. Y. 339. The right of even a widow to dower, until it is admeasured, is a mere chose in action, and only a claim.
    “ The objection as to the informality of the execution of the will of Mary O. B. Penniman, is not material. There is evidence that the devisees under the will were also the heirs-at-law of the testatrix, and the only person to inherit, if no will had been made. Their conveyance to John Doherty, the plaintiff’s intestate, was valid.
    “ As to the maps produced on behalf of the plaintiffs, they were taken from the register’s office, and had been in the custody of that public officer for many years, and in public use. In my opinion they were entitled to be regarded as public documents, subject to public use, and as such, admissible in evidence.
    “The objection to the deed to Charles Jones from his grantors, is not sustained. The description of the property is sufficient for identification.
    “ The proof of legal title submitted by the plaintiffs is, in my opinion, sufficient, and the best that under all the circumstances could have been expected, and could have been procured. The legal title being upheld, possession within the time required by law is presumed. Code Civil Pro., § 368; Florence v. Hopkins, 46 Ah Y. 182.
    “ The various objections on the part of the defendants to admissibility of evidence are overruled, and exceptions allowed.
    “ The defendant’s motion to dismiss the complaint is denied.
    “Let judgment be entered, giving to the plaintiffs possession of the real property in question, with costs.”

      Thomas H. Bar owslcy, attorney, and John C. Shaio of counsel for appellants, argued:—
    I. Upon the appeal from the former trial of this action the general term held that the right of the plaintiffs to bring an action of ejectment was suspended by the tax lease under which plaintiffs alleged that defendants occupied the premises or claimed title; and held that the presumption being that the lease was valid, the adverse possession urged by the defendants could not avail them while in possession under the tax lease because : (a.) Adverse possession could not be originated while in possession under the tax lease. (b.) The only paper title claimed by Matsell, senior, was apparently for a term of years, and that fact Avould not support a presumption of a claim of higher estate for the mere fact of possession. The defendants now obviate this by showing the tax lease to be void and forming no impediment to the right of the plaintiffs to institute their action at any timé.
    II. The tax leases made by the mayor, aldermen and commonalty of the city of New York to George W. Matsell, Sr., and Francis Owen were null and void for failure to comply with the requirements of law preliminary to the making of said leases. These facts and conclusions were found below:
    (1.) That the lease Avas given upon a sale for the taxes of 1841 and 1842. (2.) That the paper purporting to be a certificate of the assessors to the tax for 1841 was not verified. (3.) That there was no certificate for the tax for 1842. (4.) That the affidavit of the service of the notice demanding payment of the taxes for 1841 is not in accordance with the statute and is insufficient. (5.) That the notice demanding payment of the taxes for the year 1842 is insufficient, defective and void. (6.) That the taxes of 1841 and 1842 were illegally assessed upon the premises because the oath of the ward assessors Avas not in tfye form and was not signed or verified as required by the statute. These facts render the tax lease void. Bensel v. Gray, 44 Super. Ct. 372; Donohue v. O’Connor, 45 Ib. 278; Johnson v. Ellwood, 53 N. Y. 431; Brevoort v. Brooklyn, 89 Ib. 128 ; Shattuck v. Bascom, 105 Ib. 39. The lease being void no right could be acquired under it. The right of the owner to bring ejectment was never for an instant suspended by it. It was as if it never existed. Possession of the premises described cannot be referred to it. It can have no effect on the character of the possession. No estoppel can arise out of it; and would not even if it were valid. Sands v. Hughes, 53 N. Y. 287.

      HI. The plaintiffs have failed to show that they or their ancestors, predecessors or grantors were seized or possessed of the premises in dispute within'twenty years before the commencement of this action. Code Civil Proc., § 365. The tax lease being out of the way (it not impeding for an instant an action of ejectment, not operating as an estoppel, and possession not being referable to it) the question is were the possession and acts of defendants of such character as to constitute adverse possession so as to cause the running of the statute of limitations against the plaintiff. We contend that they- were. George W. Matsell acquired a tax lease of the premises in September, 1848, and in 1849 entered the premises which were then unenclosed, vacant lots and erected five buildings thereon and enclosed the same with a substantial fence or enclosure. He received and appropriated the rents of said premises to his own exclusive use until 1857 when he assigned the lease and executed a quit claim deed of the premises to Andrew H. Mickle, who entered into the use and occupation of said premises under said deed, and remained thereon and received the rents thereof until the year 1858. In the year 1858 George W. Matsell re-entered the premises and remained in possession thereof until 1864. He received the rents of said premises and remained in occupation thereof until in 1864. The act of Matsell, in conveying the premises to Mickle is significant in attempting to ascertain the character of his possession. Such an act cannot be regarded as a recognition of any outstanding, superior or paramount title and must be taken as a definite declaration of ownership showing a hostile possession and holding towards all other persons. The ownership of the tax lease did not preclude him from asserting a dominion over the premises so as to begin an adverse possession as against the plaintiffs, and, according to Sands v. Hughes, 53 N. Y. 287, this was the legal effect of the conveyance by Matsell, to Mickle. The adverse possession once begun (Sherman v. Kanes, 86 N. Y. 57) there must have been some recognition of the title of the plaintiffs by Matsell, before his act of disseising, dispossessing or ousting Mickle could make him, quoad the plaintiffs, a mere trespasser. That is an attempt to relieve the plaintiffs’ case of fatal weakness, because they must show possession or seisin within twenty years. Matsell could only be a trespasser upon the property of Mickle, who was then in possession, because trespass is only and always a breach of or attack upon the possession, pure and simple. At that time and since the plaintiffs have been out of possession. The plaintiffs have not attempted to prove that the tax lease of 1848, was owned by Matsell, at the time of his reentry, and there is no proof whatever that the lease was re-assigned by Mickle to Matsell. There are two requisites to adverse possession, occupancy and the quo animo. In the case at bar the occupancy of Matsell is conceded. The quo animo must be established by acts; it is made out: (1st.) By entering upon the vacant lots and erecting the buildings thereon and appropriating the rents. (2d.) By executing a deed to Mickle and thereby assuming the ownership of and dominion over the premises, thus commencing an adverse possession. (3d.) By disseising Mickle, thereby asserting a right equal to the party disseised. Sands v. Hughes, 53 N. Y. 287. Sedgwick and Wait on Trial of Title to Land, §§ 754, 758; LaFramboisy. Jackson, 8 Cow. 609 ; Bradstreety. Huntington, 5 Peters U. S. 439; Monroe v. Merchant, 29 Barb. 402 ; Humbert v. Trinity Church, 24 Wend. 611. The quo animo having once been established, it is presumed to continue until the contrary appears. Jackson v. Thomas, 16 John. 300; Crary v. Goodman, 22 N. Y. 177. We, therefore, submit that the plaintiffs have wholly failed to bring their case within § 365 of the Code of Civil Procedure, by showing seisin or possession within twenty years before the commencement of this action—i. e., October 19, 1883.

      Alexander Thain, attorney and of counsel for respondents, on the questions raised on the appeal and then considered in the opinion, argued, among other things:
    I. The possession of George W. Matsell, having been commenced in 1849, and there being no evidence of title in him other than the tax lease, it will be presumed that his possession was under that lease. In fact, he assigned the lease to Mickle in 1857 and gave quit claim deed to accompany it at the same time. There is no evidence of any oral or other declaration of Matsell, making any other or different claim of title. The lease to Matsell shows that he took the same because of the neglect of “the owner” to pay the taxes; and he took for the term of twenty-five years, and for that term only, against the owner of the fee for the reason, that “ the person claiming title ” had not redeemed. This is more than presumptive—it is direct evidence that Mat-sell entered ‘‘ under and subordinate to the legal title.” Code Civ. Pro., § 368. If he had any other claim or interest the burden was on him to show it. Bedell v. Shaw, 59 N. Y. 49.
    II. The tax lease continued in operation for twenty-five years from September 25, 1848, and expired on the 25th of September, 1873, so that George W. Matsell and his successors in interest were rightfully in possession during the continuance of that lease, and had the right to remain in possession for one month thereafter, for the purpose of removing buildings, etc. Robinson v. Phillips, 65 Barb. 418; S. C., 56 N. Y. 634. The plaintiffs had no cause of action by way of ejectment, until September or October, 1873, and then it was that the adverse possession began ; or about ten years before the commencement of this action. No adverse possession could be acquired under the tax lease. Gross v. Welwood, 90 N. Y. 638 ; Bedell v. Shaw, 59 Ib. 46 ; Hoyt v. Dillon, 19 Barb. 644. The case of Sands v. Hughes (53 -N. Y. 287) is not in conflict, but rather in confirmation of this doctrine. There the plaintiff attacked the lease, and the court ruled, that if there was no lease, then defendants’ possession was not subordinate to, but rather adverse to the legal title; while if the lease were conceded defendants could not be ejected until after the expiration of the term.
    III. Possession under a tax lease “ in its beginning and ever since admits that there is a rightful title in fee, elsewhere than in the defendants, and that it is in the plaintiff, and admits that it was under that rightful title that possession was taken and is kept up. It is not a claim to the entire title or a claim to the fee. It is not a claim in utter hostility to the true title.....It is for the occupant to show that under that title he has a right to possession, for his possession" does not begin in hostility to that title, but in accord with it.” Bedell v. Shaw, 59 N. Y. 49.
    IY. The lease distinctly refers to some person other than George W. Matsell as the owner, as that the owner had, by notice been required to pay said taxes and that the owner of said five lots did neglect to pay said taxes that neither the person claiming title to said five lots, or any one in his behalf, did redeem (fol. 240); and that the lots were transferred to George W. Matsell for the term of twenty-five years “ against the owner or owners thereof and all claiming under him or them” (fol. 241).
    Y. The mayor not having contested the lease and the owner having seen fit to allow Matsell to use the property during the twenty-five years, in consideration of the payment by him of the tax; and his successors having had the benefit of the contract into which he entered, they cannot now repudiate it, or be heard to claim either that the lease is void or voidable. Upon its face the lease is in every respect regular and the recitals therein contained show that a valid estate was created in George W. Matsell for the term of twenty-five years. As against the parties to a deed and those who claim under them by matter subsequent, whether by privity of blood, estate or in law, recitals are conclusive. Abbott's Trial Evidence, 712, § 31; Torrey v. Bank of Orleans, 9 Paige 649; 1 Greenleaf on Evidence, §§ 23, 24; Bridges v. Wyckoff, 67 N. Y. 130. As against the owner of the fee or any person not a party to the instrument, itself, or a privy to such party, recitals are not conclusive, unless so made by statute. Brown v. Goodwin, 75 N. Y. 412. To maintain his position for the purpose of the present case, the defendant is understood to assert that the act of the mayor, etc., of New York was ultra vires. The principle of ultra vires, it is understood, can only be invoked by a person against Avhom the power is sought to be used, and is never permitted to be pleaded by one who has received the full benefit of the act complained of.
    VI. The lease being void, did not make it the less an instrument under which the lessee had claimed. St. Vincent Asy. v. Troy, 76 N. Y. 113. In Bedell v. Shaw, 59 N. Y. 46, the lease was held to be void, but that did not prevent the plaintiff’s recovery, although the defendant had been in possession over twenty years.
    VII. At most, these tax leases were voidable only, and can only be disputed or impeached by plea, act or otherwise, at the instance or election of some person— usually the party injured—entitled so to do. Wait’s Void and Voidable Acts, § 426; Anderson v. Roberts, 13 John. 515. In the case at bar, the defendants claiming through George W. Matsell, Sr., will not be heard to dispute the validity of a contract to which he was a party, and as to which he and they have received the full benefit intended thereby. The cases of Bensel v. Gray, 44 Super. Ct. 372, and Donohue v. O’Connor, 45 Ib. 378, are not in point. See Bedell v. Shaw, 59 N. Y. 49. No case can be found Avhere a party Avho has enjoyed the full benefit of a contract has been permitted to come into court subsequently, and gain any advantage by an allegation of its invalidity, unless, perhaps, in the case of an infant or other person not sui juris.

      VIII. The proof offered by the defendants on their own behalf does not tend to show that the defendants or George W. Matsell under whom they claim, had or claimed any other or different title than that conferred by him by reason of the tax leases to which reference has been made. By Exhibit A., George W. Matsell undertook to quit claim to one Andrew H. Mickle the lots in question, describing them by their numbers upon tax map for the years 1841 and 1842, which were the years that the taxes were levied, upon which his lease was based. Tfiis deed is dated the 28th day of February, 1857, precisely the same day that Matsell transferred to Mickle by indorsement thereon, the tax lease which he had previously acquired. This quit claim deed contains no covenants of any kind whatever, and in it is not an assertion of any title whatever in George W. Matsell. The most that can be claimed for it is an accompaniment to the assignment indorsed upon the tax lease. [It does not show that Matsell had or claimed to have any other or different title than the tax title, or that his interest which he acquired in 1848, was anything beyond the term of years conferred by the tax lease.] Under this assignment of the tax lease, and the accompanying quit claim deed, Mickle seems to have gone into possession of the property into 1857, and remained there about one year, when he restored possession to George W. Matsell; and as there is no record of any conveyance by Mickle, or assignment of the tax lease, and both Mickle and Matsell having, by their own act, recognized its validity, it is fair to assume that Matsell’s re-entry was as tenant to Mickle, and subject and subordinate to the title which Mickle accquired by assignment of the lease which then, by its terms, had about fifteen years to run.
    IX. Except the attack upon the leases, the full benefit of the term of which the defendants have had, no new proposition was presented for the consideration of the court other than had already been considered by the general term on the motion for a new trial. Doherty v. Matsell, 54 Super. Ct. 29.
    X. 1.—The theory of the defence appears to be, that to establish an adverse possession, all that is necessary is to show that one trespassed upon the land of the owner and put on some improvements, and that by so doing, without more, at the end of twenty years the trespasser is transformed into the owner, whereas the reverse is the law. Howard v. Howard, 17 Barb. 605. 2.—On one setting up an adverse possession, is thrown the onus of making out such adverse possession by positive proof. Jackson v. Winthrop, 12 Johns 368. 3.—The requisites of an adverse possession are the fact of possession and the quo animo. Jones v. Smith, 73 N. Y. 205. 4. “ If the custody and possession is shown to be equally consistent with an outstanding ownership in a third person, as with a title in the one having the possession, no presumption of ownership arises solely from such possession.” Rawley v. Brown, 71 N. Y. 89.

       Consult Doherty v. Matsell, 54 Super. Gt. 17.

   By the Court :—Sedgwick, Ch. J.

In this case, the important question is whether the possession of George W. Matsell, senior, was adverse to the plaintiffs, otherwise the true owners. • The plaintiffs proved sufficiently legal title in their ancestors in title. One of them was Henry P. Robertson, and the assessment of the tax, under the sale for which Matsell, senior, took the lease to be referred to, described Robertson as occupant and owner.

The time of Matsell’s possession, that is in question, was from 1849 to 1864, excepting for about one year, when one Mickle was in possession.

In 1849, Matsell entered into possession, and from that year to 1857, did such things in respect of the premises as building upon them, renting the buildings, and exclusively controlling them as matter of fact, that, if that were all the evidence as to his claim, it may be conceded that he would have been in adverse possession. But he entered under a tax lease, held it, and afterwards assigned it in 1857- Whatever he did was consistent with his being a lessee under a tax lease and there was no proof that he made any claim excepting under that lease. Therefore he claimed only for the term of the tax lease, which with his acts did not oust the plaintiff of the remainder or of the fee. Until after the term expired, the plaintiff was not put to an action, if he chose to acquiesce in Matsell’s claim.

On or after 28th of February, 1857, Matsell went out of occupation, one Miclcle going into possession. Mickle went in under the following circumstances. Matsell, senior, assigned to him “ all my estate, etc,, which I now have by means of the said indenture or otherwise,” referring to the tax lease. Evidently the word otherwise ” does not "indicate any actual claim in fact made outside of the tax lease. At the same time, he made a deed bearing the same date and acknowledged at the same time, before a notary. The deed and the assignment of lease are to be treated as one instrument so far as claims under them are to be considered. So far as the lease guides the claim, Mickle’s position was the same as was Matsell’s, senior, theretofore. So far as the deed affects the nature of the claim, as there was no claim in fact outside of an inference from the acts of the parties and from the instruments, Mickle’s claim must be taken to be according to the legal nature of the instrument. The deed was a quit claim deed that conveyed any interest in the land in the grantor, but nothing more. The joining of the wife did not enlarge any actual claim under the deed. It provided for contingencies only as to there being some estate of inheritance, which the grantee did not claim existed. The actual claim of Mickle, was according to the inferences, of an interest under the lease, just as Matsell senior’s had been, which allowed an action to the owner as soon as the term expired. Bedell v. Shaw, 59 N. Y. 49. In my mind it makes no difference that the lease was void or voidable or valid. In no respect did that alter or expand the actual claim, made by the adverse possession.

After Mickle had been in possession about one year, and in 1858, without any re-conveyance by Mickle of any estate or interest and no re-assignment of the lease, Matsell, senior, went into possession, occupying and controlling them, until 1864, as he had done before he transmitted possession to Mickle.

There is no doubt that he might have then begun a possession adverse to the owner of the fee. To begin it, he had to make some other claim than he had previously made. An equivocal position in this regard, does not begin adverse possession. By reason of the continuity of possession and of claim down to Mickle and the nature of Mickle’s claim, and his going into possession again, without further actual hostile claim, I am of opinion, that it was not proved that he made any other claim than he had formerly made, or than Mickle had made. I wish to repeat that the acts of occupation were as consistent with a claim to a term only as with a claim to the fee, and were of the same nature as those before his assignment of the lease to Mickle.

Thinking that no adverse possession was begun before 1864, the result is that the direction of the court should be sustained and the judgment affirmed with costs.

Freedman and Trttax, JJ. concurred.


source: Caselaw Access Project

author: By the Court.—Sedgwick, Ch. J.

license: Public Domain

text:
    AMOS R. ENO, Respondent v. THE METROPOLITAN ELEVATED RAILWAY CO., Appellant.

      Award for lands taken, recovery of with interest from party for zvhose benefit the land was taken, although such party had deposited the money pursuant to an order of the court.

    Where in proceedings instituted by a railroad company (the defendant in this action, formerly known by the name of the G.lbert Elevated Railroad Company) for the condemnation and acquisition of lands, under the general railroad act (Laws of 1850, chap. 140) as amended by Laws of 1876, Chap. 198, the commissioners awarded the damages for one parcel to unknown owner, and for another parcel to A. R. E. (the plaintiff herein), as owner or person interested, against the objection of A. R. E., who insisted that the awards should be made to him „ specifically, and so reported; and thereafter the supreme court at general term after hearing counsel for A. R. E. in opposition by its order bearing date December 16,1879, confirmed the report of the commissioners, and ordered that the company deposit the amount of the awards in the Shoe and Leather Bank, and that on making such deposit it should be entitled to enter upon the possession of, and use for the purposes of its incorporation, during its corporate existence, the lands in respect whereof the awards were made; the company had theretofore entered into possession of the premises; and thereafter it deposited in the Shoe and Leather Bank the amount of the awards to an account known and designated as unknown parties to be hereafter designated by the court “in the matter of the Gilbert Elevated Railroad Company” and thereafter the general term of the supreme court on appeal made an order bearing date June 8, 1886, whereby it modified the report of the commissioners, so that said damages so awarded as aforesaid should be awarded to be paid to A. R. E., and confirmed the report as so modified ; and further ordered that the sums of money theretofore deposited in respect of such awards in the Shoe and Leather Bank pursuant to said order of December 16, 1879, together with any accumulation of interest thereon, if any, growing out of such deposit, be paid by said bank to such A. R. E., and thereafter the company making no new deposit under the order of June 8, 1886, and doing nothing towards paying the awards to A. R. E. and not procuring the two general term orders to be recorded in the office of the county clerk in the books there kept for the records of orders in condemnation proceedings, A. R. E. procured such orders to be so recorded, and then demanded of the company payment of the amounts so awarded with interest thereon from December 16, 1879, which being refused, A. R. E. brought action therefor against the company.

      Held, That plaintiff was entitled to recover the said sums awarded with interest thereon from December 16, 1879.
    Before Sedgwick, Ch. J., Freedman and Truax, JJ.

      Decided June 20, 1888.
    This action is brought to recover the amounts of two awards made by commissioners appointed in proceedings for the condemnation and acquisition of land instituted by defendant with interest from December 16, 1879.
    The facts sufficiently appear in the opinions and head notes.
    The cause was tried before O’Gorman, J., and a jury. At the conclusion of the evidence counsel for defendant moved that the complaint be dismissed, or, that a verdict be directed for the defendant upon the following grounds: First. That the only statutory action which is described in the act of 1850, and its amendments, is an action to recover an award with interest, upon the ground that the order confirming the award has been entered; and more especially that the money directed by the award has not been paid. That this is not such an action as is prescribed by the statute, because the money has been paid, and the order has been substantially regarded and its provisions complied with and acquiesced in. Second. That no facts have been shown sufficient to constitute a cause of action in the plaintiff, or to enable plaintiff to recover any substantial amount. Third. That there is no cause of action at law for the recovery of such an award as this, with interest, outside of the statutory provision contained in that act and its amendments. Counsel for plaintiff moved the court to direct a verdict in favor of the plaintiff for the total amount of $5,089, with interest from December 16, 1879, to the date of trial, said interest amounting to $2,493.61, from December 16, 1879, to date. The trial judge granted the motion of plaintiff’s counsel, and delivered the following opinion:

      “ It is somewhat difficult for the court to express any conclusion on a question of this kind on the first impression. But I have to direct the jury one way or the other, and it is proper that I should say why I shall do, what I intend to do.
    “ All this proceeding depends upon the constitutional doctrine that private property shall not be taken for public use without compensation.
    “ It was at one time thought that that provision went far enough to prevent a public corporation from taking private property, that is, actually entering upon the possession and use of private property, without first paying the compensation. The legislature, however, in aid of these great public institutions, and in the expectation of their carrying out the beneficent purposes for which alone the state gave them authority to do these acts, provided that they might take possession without actual payment on adopting certain legal courses wrhich protected the property owner and assured that he should at some time be paid for his property that was taken. Now, the intention always was that the corporation should compensate the property owner. The legislature in its establishment of a special course of proceeding in this matter provided that while certain facts were still in doubt as to the ownership of the property, the award should be made by the commissioners specifying the amount to be paid and until the person who was entitled to that amount was finally ascertained, the amount to be paid should be put in the safe keeping of a bank to be designated by the court.
    “ In this case that step was taken under the impression, which subsequently turned out to be unfounded, that there was some doubt as to the title of the plaintiff in this case to the property taken. The court directed that the money due to the rightful owner should be put in the safe keeping of a bank until it was ascertained who was the rightful owner. Subsequently, upon appeal, the court decided that it had been mistaken before, in supposing that there was any doubt as to the legal ownership, and they accommodated the order that they then made to the form and substance of what ought to have been the order when first made, and they authorized the bank to pay the money with interest if any into the hands of the plaintiff in this case.
    “And now this action is brought by the owner, not against the Shoe and Leather Bank, under any statutory proceeding, but against the company, on the ground, I suppose, that they have taken the plaintiff’s property, and have not given him any compensation for it to the extent that he considered himself entitled to compensation.
    “Then the question settles itself down to this: What party should lose the interest that by right, and according to ordinary custom, should have accrued, and should have been payable to the person who was entitled to receive that money, when the commissioners made the award that the money was due to the rightful owner ? Should it be lost to the rightful owner ? Would it be carrying out the great constitutional principle of giving him compensation for his property if he did not also receive the interest which naturally would have accrued on the amount which was decided to have been due to him at the time the award was made ? It seems to me that justice and equity, if it can be administered in this proceeding, require that he should have interest. I do not see anything to prevent the application of the ordinary principle that interest accrues on the amount held to be due. I do not see any reason why it should not be applied in this case. And if these views are correct, and I believe now that they are, I will direct a verdict according to the request of the plaintiff’s counsel.”
    From, the judgment entered upon the verdict rendered pursuant to the direction of the court, the defendant appeals.

      Davies & Rapadlo, attorneys, and Edward 8. Rapallo, of counsel, for appellant, argued:—
    I. The trial court erred in directing a judgment in favor of plaintiff, for the amount of the awards with interest from the date of the general term order of confirmation ; and the trial court erred in refusing to dismiss the complaint upon the merits. The plaintiff appears to claim that the order of confirmation of the Commissioners’ report, made December 16, 1879, which order directed the deposit to be made in the Shoe and Leather Bank, was reversed upon an appeal to the general term, and that the defendant can derive no protection from having relied upon that order, and from having obeyed its directions. This order however does not reverse the order which directed the defendant to deposit the money in the Shoe and Leather Bank, nor does this order direct the defendants to pay to Amos R. Eno the money or the amount of the awards, but, on the contrary, the order recognizes the deposit as having been made ; it modifies the reports of the Commissioners, so as to make the award to- Amos R. Eno, and then directs the Shoe and Leather Bank to pay the money on deposit with that bank to Amos R. Eno. The defendant in this case, the petitioner in the former proceedings, was entitled, therefore, to pay the money as directed by the original order; to enter upon the property; the rights of all parties to the proceedings were cut off, and after once paying the award the defendant had no further concern with the money, nor could it demand the money again from the Shoe and Leather Bank, as the same was deposited there to await the further order of the court. The statute authorizes the maintenance of no such action as the one at bar, but, on the contrary, expressly designates the grounds upon which such an action can be maintained, and the principal and most important ground specified by the statute does not exist in this instance, to wit, the non-payment or failure to make deposit of the money, as directed by the order.
    II. The payment of money into court, or the deposit of money in accordance with an order, in these proceedings, is in effect a substitution of the money for the land, and the condemning corporation is then justified in entering upon possession of the premises. The learned justice, at trial term, appears to doubt whether the acts of the legislature would be constitutional if they should be construed as authorizing the payment of compensation, not to the true owner, but by deposit in bank, especially if the true owner should suffer a loss of interest thereby. We contend that the constitution is complied with, by an act of the legislature which directs the deposit of the money, for the owner. Mills on Eminent Domain, § 76, p. 100; § 147, p. 181: “If the owner refuses to take the compensation awarded, the court may order the money to be paid into court for his use, and thereupon the condemning party is justified in entering on the premises. After such deposit the title passes and no refusal on the part of the owner or protest will constitute the condemning party a trespasser.” Evans v. Harfner, 29 Miss. 141,148, 149; Montgomery & W. P. R. R. Co. v. Walton, 14 Ala. 207-208; Hueston v. Eaton & Hamilton R. R. Co., 4 Ohio St. 685, 688, 689; In re N. Y. C. & H. R. R. R. Co. to acquire land, 60 N. Y. 116, 117, 120 ; Beeker v. Boone, 61 Ib. 317, 322.
    HI. The statute as to recording the order of confirmation has been complied with, in all essential particulars, and defendant is entitled to the full protection of the proceedings. The provisions of the statute (2 R. S., p. 1552, § 18) that a certified copy of the order so to be made as aforesaid shall be recorded at full length in the clerk’s office of the county in which the land described in it is situated.....If the company neglect to have such order recorded, and to make payment or deposit as herein provided for the period of ten days after the date of such order,” etc., are directory and not mandatory. Sedgwick on Statutory and Constitutional Law, p. 396; Pease v. Morrice, 2 A. & E. 94; Empire City Bank, &c., v. U. S. Fire Ins. Co., 18 N. Y. 199, 220; People ex rel. Westcott v. Holley, 12 Wend. 481-3; In re Broadway Widening, 63 Barb. 572, 593; Wiggin v. Mayor, 9 Paige Ch. 16-24; Striker v. Kelly, 7 Hill, 9, 24; People v. Cook, 8 N. Y. 67-93; Gale v. Mead, 2 Den. 160-1; Thomas v. Clapp, 20 Barb. 165; Wetherill v. Mosher, 9 Hun, 412, 415; Doughty v. Hope, 3 Den. 249-252; People v. Carpenter, 14 N. Y. 86, 93; Hall v. Fettle, 6 Hill, 38, 42 ; Marchant v. Saergworthy, 6 Hill, 646; People v. Allen, 6 Wend. 486-8.

      John E. Parsons, attorney, and of the counsel for respondent, argued:—
    I. The condemnation proceedings determined that the plaintiff was the owner of the property and was entitled to the awards. It fixed the amount. The company having taken possession as of December 16,1879, the plaintiff was entitled to be paid as of that time. If the payment were deferred, interest necessarily ran upon the awards. It was no answer for the defendant to say that under the authority of the order of December 16, 1879, it paid the amount to the Shoe and Leather Bank. The decision of the general term upon the appeal was that that order was erroneous; that it should have ordered the payment to be made to the plaintiff. The order in the respect in question was reversed. From that order the defendant can obtain no advantage. Kessel v. Zeiser, 102 N. Y. 114; Blackshire v. Atch., T. & S. F. R. R. Co., 13 Kans. 514; Dater v. Troy, &c., R. R. Co., 2 Hill, 629.
    II. The general railroad act, under which the condemnation proceedings were taken,■ provides in' so many words that to entitle a railroad company to enter upon possession the award must be paid “ with interest from the date ” of confirmation. That act also expressly provides that the award, “ with interest thereon from the date of ” the order of confirmation, shall he a debt, &c. The general railroad act makes it a condition of an appeal by a property owner that he shall stipulate not to disturb the possession of the railroad company. By the act the entry into possession of the defendant took place legally as of December 16, 1879. The defendant entered upon actual possession previously. By the act the plaintiff could not prevent that possession. The provision of the order of December 16, 1879, directing the awards to be deposited having been reversed, the defendant became subject to the provisions of the Act. That made him liable to pay the awards with interest. That it shall do so is, therefore, in direct accord with the act. That it is in accordance with right and justice cannot be gainsaid. The defendant has had the enjoyment of the plaintiff’s property. The deposit of the awards in the Shoe and Leather Bank was of no benefit to the plaintiff. The provision for that deposit having been reversed, it ceased to afford protection to the plaintiff.
    III. The clause in the general term order of June 8, 1886, directing the Shoe and Leather Bank to pay the deposit to the plaintiff did not affect his right to the amount of the awards with interest. 1. The order did not assume to determine whether the plaintiff was or was not entitled to interest. It did not assume to limit or to establish the remedies to which the plaintiff was entitled. That is prescribed by statute. 2. The plaintiff might probably have received from the Shoe and Leather Bank the amount of the deposit, assuming that the bank would have been willing to pay, and have credited it on the debt. It would have left due to him the interest for which the statute made the company liable. The plaintiff was, however, under no obligation to collect that deposit. As matter of fact the plaintiff did offer to receive it under a stipulation that it should not affect his claim for interest. 3. The order was not pleaded in bar. Brazill v. Isham, 12 N. Y. 9. If it had been it could not operate to bar the plaintiff’s action, (a) It does not in terms pass upon the question of interest. That question could not be litigated in that proceeding. Stowell v. Chamberlain, 60 N. Y. 272, holds that no order or judgment is a bar unless the relief claimed to be barred could equally well have been awarded in the prior proceeding. (5) The general railroad act gave the general term no power on appeal either to require the Shoe and Leather Bank to pay interest or to dispose of the question of interest one way or the other. It is only in the single event of the award being diminished upon a re-appraisement that the court is empowered to render judgment for a return by the landholder of the difference. A failure on the part of the company to pay an award is enforceable only by action.
   By the Court.—Sedgwick, Ch. J.

The defendant took proceedings to acquire real estate in two parcels belonging to the plaintiff. The commissioners assessed the damages, and against the objection of plaintiff, awarded them in the one instance to unknown owners and in the other to the plaintiff or parties interested in the land. The order entered confirming the award provided, in conformity with the statute, that the amount of the award should be deposited and the deposit was made. The plaintiff appealed, and on the appeal the order was modified so that it should award the damages to the plaintiff. As the order of confirmation stood in other respects, being only modified in the manner described, it spoke as of its first date and contained a requirement or an implication that a deposit should be made in such a manner that the plaintiff would be able to obtain it by demand, and also that the amount deposited should comprise the amount of the award and interest upon it, from the date of confirmation. The defendants did not make any new deposit. The defendants not filing the orders, etc., as modified by the order on appeal, in the way required by statute, but the plaintiff filing them, the plaintiff in my opinion had an action for the amount of the award and interest from the date of the order of confirmation.

I think the court was right in directing a verdict for plaintiff.

Judgment affirmed with costs.

Freedman and Truax, JJ., concurred.


text:
    JOHN HUTCHINSON, et al. v. FRANKLIN G. WALL, ET AL. In the Matter of the Application of the Plaintiff, Respondent, to compel John R. Foley, Appellant, to take Title.

      Foreclosure—Fur chaser when not relieved by reason of judgment directing payment of a claim not alluded to in the complaint.

    A purchaser on a sale under a judgment of foreclosure and sale entered on default of all of the defendants, adjudging that plaintiff be paid out of the proceeds of sale a claim for a sum of money theretofore paid by him as interest on a prior mortgage, will not be relieved on the ground that the complaint did not allude to such claim, and made no demand for relief in regard to it.
    Before Sedgwick, Ch. J. and Freedman, J.

      Decided June 20, 1888.
    Appeal by purchaser from order directing him to complete purchase made by him, at a sale under the judg- . ment in the action.
    The action was for the foreclosure of a mortgage.

      The complaint alleged, among other things, that the defendants' had failed to comply with the condition of the bond and mortgage, by omitting to pay the sum of two thousand five hundred dollars, which became due and payable on October 27, 1887, and there was justly due the plaintiffs upon the said bond and mortgage, the sum of two thousand five hundred dollars, with interest from April 27, 1887, to October 27, 1887, at the rate of five per cent, and thereafter at the rate of six per cent.; and demanded that the defendants and all persons claiming under them subsequent to the commencement of this action, be barred and foreclosed of all right, claim, lien and equity of redemption in the mortgaged premises; that the said premises be decreed to be sold according to law; that the moneys arising from the sale be brought into court; that the plaintiffs be paid the amount due on the said bond and mortgage, with interest to the time of such payment, and the costs and expenses of the action so far as the amount of such moneys properly applicable thereto will pay the same.
    The other facts sufficiently appear in the opinion."

      Thomas Darlington, attorney, and Samuel Jones of counsel, for appellant, argued :—
    I. The judgment in this case rendered was more favorable to the plaintiffs than that demanded in the complaint. Under § 1207 Code Civil Procedure this is prohibited Some of the defendants, more particularly Mrs. Chapman, are entitled to come in and set aside the judgment, and they are not confined to moving within the year., Simonson v. Blake, 20 How. 484; Andrews v. Moinlaus, 8 Hun 65; Willis v. Fairchild, 51 Super. Ct. 405. The case of Peck v. N. Y. & N. J. Railway, is not an authority against Mr. Foley, purchaser. In that case, Levy, the petitioner, was a bondholder, and the foreclosure Avas made by his trustee, for his benefit. He could not demand as a right to have the judgment vacated. The complaint was not before the court, and the court assumed that it was all right. The Peck foreclosure was all right and under that foreclosure, a good title was made and Demurest mortgage rights extinguished. Here as purchasers, we are directly interested. The judgment under which we are to take title, is a matter of record, must be examined by us, and we are directly chargeable with notice of its contents. The rule has been repeatedly declared that “the purchaser will not be compelled to accept a doubtful title, nor one where he can only acquire possession by litigation and judicial decision.” Jordan v. Poillon, 77 N. Y. 518; Shriver v. Shriver, 36 Ib. 575 and 584. The court of appeals merely decided that they had no jurisdiction of that case. The remarks of the court, having no jurisdiction, do not approve the course of the courts below; they say, p. 251: “It may have been improper.” On page 253 : “ The discretion may not have been wisely exercised, and injustice may have been done,” and they refer pointedly to “the petition of one situated like Levy.” In this case the parties ask relief against the purchaser. He, the purchaser, is rightfully here, and entitled to be heard. He is not an outsider. The complaint is here. It alleges only $2,500 and interest due and no more was due upon the mortgage, but upon some outside matters not alleged in the complaint, not a part of the mortgage, without bringing in the parties, or affording an opportunity of being heard, they take a judgment in direct violation of law.

      Leavitt & Keith, attorneys, and John Brooks Leavitt of counsel, for respondent, argued:—
    I. The order was right. Peck v. N. Y. & N. J. Ry. Co., 85 N. Y., 246; DeForest v. Farley, 61 Ib., 628 ; Blakely v. Calder, 15 Ib., 617; Thomas on Mortgages, § 1005.
    II. If the court will permit a stranger to the record to impeach collaterally, not its j urisdiction to render its decree of sale, but the correctness of its decision as to the amount to be paid to the plaintiffs out of the proceeds, it will then be time enough to discuss the question argued by the appellant, whether the court was in error in following the usual custom of allowing a second mortgagee to tack on to his security interest on a first mortgage paid by him. It does not concern Mr. Foley. He need not trouble himself about it. Nor can he be allowed to do so. Peck v. N. Y. & N. J. Ry. Co., and others cases, supra.

    III. Section 1207 of the Code cannot be invoked by a stranger to the action to support a claim that a judgment is without jurisdiction. See Opinion of Earl, J., in the Peck case, at page 250. .
    IY. Section 1207 was not violated. The judgment granted was not more favorable than the judgment demanded. See Peck case, supra.

    Y. Even if the court were wrong in determining the amount due, it was at most an irregularity, which can at any time, on the application of the right party, be corrected, without setting the sale aside. See Peck case, at page 251.
   By the Court.—Sedgwick, Ch. J.

The action was in foreclosure of mortgage upon real estate. The judgment was taken by default against all of the defendants. It appears from the record, that the referee reported that the plaintiff had paid $507.50 as interest upon mortgages prior to the mortgage in action, and that the plaintiff was entitled to payment of the amount out of' the proceeds of sale. This conclusion of the referee was made part of the judgment. The complaint had not alluded to this claim of the plaintiff or made any demand for relief in regard to it.

The purchaser objected below, that he should not be compelled to take title because the defaulting parties could successfully object to the judgment so far as it gave plaintiff judgment for anything not demanded in the complaint, and those parties would after the purchaser had taken title have the right to have the judgment and sale under it, set aside.

In my opinion the rights of the defaulting defendants would be to have the judgment set aside so far only as it was defective in giving judgment for the amount of interest paid upon the prior mortgages, if they had such right, which it is not necessary to determine. This would not involve setting aside the sale.

The order is affirmed with $10 costs.

Freedman, J., concurred.


text:
    JOHN ROBINSON, as Administrator, &c., Respondent v. THE OCEANIC STEAM NAVIGATION CO., Appellant.

      Jurisdiction of action by non-residents against foreign corporation, on causes of action arising without the state. An action under Lord Campbell's act for a death, is an action in tort, and if the death and the injuries causing it occur without the state no court of this state has jurisdiction of an action therefor by a non-resident against a foreign corporation—Letters of administration issued in this state do not invest one, in fact a non-resident, with the character of a resident—Such want of jurisdiction is not waived by not being relied on in the answer—It may be raised on motion at any stage of the action—The granting of the motion does not violate § 2, Article 4, of the Constitution of the United States.

    No court of the state of New York has jurisdiction over an action for damages brought by a non-resident thereof against a foreign corporation upon a cause of action arising without the state.
    A cause of action to recover damages for the death, on an English vessel owned by an English corporation, on the high seas,, of a passenger being carried on- such vessel under a contract of carriage, which death was caused by the colliding on the high seas of that vessel with another, is not a cause of action for damages for a breach of contract to carry safely, but is an action in tort under Lord Campbell’s act, and arises out of the state of New York. No court of this state has jurisdiction over an action brought by a non-resident thereof on such a cause of action against such corporation—The transitory nature of the cause of action does not give such jurisdiction.
    Letters of administration issued by a surrogate of this state to a non-resident thereof, does not invest such non-resident with the character of a resident of the state for the purposes of an action against a foreign corporation. Notwithstanding the issue of such letters he still remains a non-resident.
    A waiver of such a want of jurisdiction does not flow from the fact that the defense is not set up in the answer.
    Such want of jurisdiction may be brought to the attention of the court at any time on motion, e. <7., by a motion at special term to set aside the summons and to dismiss the complaint for such want, even after issue joined by an answer not setting up such defense. And the court may then by granting the motion declare to the parties that for that reason no further proceedings should betaken.
    The granting of such a motion does not violate section 2, article 4, of the Constitution of the United States.
    Before Sedgwick, Ch. J., Freedman and Truax, JJ.

      Decided June 20, 1888.
    Appeal from an order denying defendant’s motion to vacate the summons and dismiss the complaint.
    The facts sufficiently appear in the special and general term opinions.
    The motion was heard below by O’Gorman, J., who in denying it, wrote as follows:—
    The facts as they appear bn this motion are these : the plaintiff sues as administrator of an infant, who while a passenger on board of a steamship owned by defendant corporation, was killed, as it is claimed, by the negligence or default of the defendants. The defendants are a foreign corporation, and this ship was a British ship, and the death took place on the high seas, on a voyage from New York to Liverpool, and within the territorial limits of Great Britain.
    Under the British law, as set forth in the complaint, an action may be brought by the administrator of a person whose death has been caused by the wrongful act, neglect or default of another, and damages may be recovered therefor.
    This action is brought under the provisions of that law.
    The defendant corporation voluntarily appeared in the action, served on the plaintiff’s attorney an answer and notice of trial, and the cause was set down for jury trial on the day calendar of March 17, 1888. Among the defenses set up in the defendant’s answer was the defense that this court had not jurisdiction of the subject of the action.
    A motion is now made to vacate and dismiss the complaint, with costs, on the ground that the plaintiff, as administrator, did not reside in the state of New York, and that this court, therefore, had no jurisdiction under § 263, subdivision 7, and § 1780, of the Code of Civil Procedure.
    The fact that the plaintiff administrator is not a resident of this state is not alleged in the answer, but only in an affidavit used on this motion.
    A motion in this case to compel the plaintiff to give security for costs, as a non-resident of the state, was granted by Judge Preedman at special term.
    In Brooks v. The Mexican Construction Company, 49 Super. Ct. 234, it was held by the general term of the court, that under §§ 266 and 1780 of the Code of Civil Procedure, this court had no jurisdiction over a foreign corporation in an action brought by a non-resident of this state, and that objection to the jurisdiction might be taken at any time, although not taken in the answer. The court of appeals dismissed the appeal on a matter of practice only.

      The plaintiff here contends, that the defendants, by their conduct in this action, have waived all objection to the jurisdiction of the court, unless such as is set forth in their answer; that this motion is made too late; is for the purpose only of delay and not in good faith ; and that the plaintiff, by reason of his having received letters of administration from the surrogate of the county of New York, is, in contemplation of law, a resident therein.
    Plaintiff also contends that the action is brought substantially on the ground that the defendants are liable in damages for their default in fulfilling their contract, made in the city of New York, to carry the deceased safely and with due care, and that the court has, therefore, jurisdiction under § 263, subdivision 2, or § 1780 of the Code of Civil Procedure.
    In the case of Popfinger v. Yutte, 102 N. Y. 42, a question similar to that here presented was considered carefully by the court of appeals. It was there held that the jurisdiction of the superior court continued to be as it had been on the 6th of December, 1869, the date of the constitutional amendment, and that subdivision 5, of § 263 of the Code, in so far as it purported to confine the jurisdiction of the superior court, was inoperative.
    The court also held that under § 266 of the Code, want of jurisdiction by reason of the non-existence of any of the jurisdictional facts specified in § 263, is a matter of defense, and is waived by appearance unless pleaded.
    The objection now made, that this action against a foreign corporation is not brought by a resident of the city, is one of these objections which, if valid constituted a matter of defense and must, therefore, be regarded as waived. To the same effect was the opinion of the court of appeals in McCormick v. Penn. R. R. Co., 49 N. Y. 308-9, the court holding that where there is jurisdiction of the subject matter or cause of action, consent may confer jurisdiction of the person, and that such consent may be expressed by a foreign corporation by appearing by attorney and answering generally in the action. It should be borne in mind that in the case at bar the action is transitory, and the cause of action, in contemplation of law, may, therefore, be treated as having arisen within the city of New York.
    The objection that the plaintiff administrator is not a resident of the city and state of New York, not having been especially pleaded as a defense, is therefore not sustained.
    The motion to vacate and dismiss the complaint is denied, with ten dollars costs.

      Wheeler, Cortis & Godwin, attorneys, and Lawrence Godhin of counsel, for appellant, argued:—
    I. The motion should have granted under § 1780 of the Code of Civil Procedure, upon the authority of the cases of Brooks v. Mexican National Construction Co., 49 Super. Ct. 234; 50 Ib. 281; Ervin v. Oregon Ry. etc. Co., 28 Hun, 269. The Brooks case is absolutely undistinguishable from the case at bar. It was an action for damages arising out of a collision. Some of the plaintiffs were residents and some non-residents. The defendant was a foreign corporation, and the collision took place near Arkansas Pass on the coast of Texas. In that case the cases of McCormick v. Penn. R. R., 49 N. Y. 308, and Popfinger v. Yutte, 102 N. Y. 42, were commented on; and the first of them was held in the light of the later case of Davidsburgh v. Knickerbocker Co., 90 N. Y. 526, not to be an authority for the proposition that non-residénce of the state, made a requisite to jurisdiction under § 1780 of the Code, could be waived ; the second was held to apply only to cases arising under § 263.
    II. No argument in favor of jurisdiction can be drawn from the transitory nature of the action. If in every transitory action the cause of action may be considered to have arisen in the place where the action is brought, the words in subdivision 3 of § 1780 of the Code, “ Where the cause of action arose within the state,” have no meaning, for all personal 'actions are transitory. Bouvier’s Law Dictionary, Title “ Transitory Action.” The case of Dennick v. Railroad Co., 103 U. S., 11, is not analogous. To make that case at all analogous to this it should appear in the case at bar, that the defendant was contending that this action having been brought under Lord Campbell’s Act, could only be prosecuted by an administrator appointed by the courts of Great Britain.
    III. This action cannot be distinguished from the Brooks case on the ground of its being an action for breach of contract to carry safely. The allegations of the complaint are a conclusive answer to such a contention, for it is expressly pleaded that the action is brought under Lord Campbell’s Act, which is a British statute, giving a right of' action for a tort resulting in death, which right of action, being a right of action in tort, pure and simple, would at common law have died with the person of the deceased.
    IV. Jurisdiction cannot be sustained on the ground that although plaintiff was a non-resident of the state of New York, nevertheless for the purposes of this action, he must be considered a resident because letters of administration had been issued to him by a New York surrogate’s court. Coal Company v. Blatchford, 11 Wallace, 172, is an express authority against such a contention. Executors and administrators appointed by letters from a New York surrogate’s court may be either residents or non-residents, and the Code recognizes the distinction between a resident and non-resident executor, for by § 3268, an executor may be compelled to give a bond “ where the objection is that he is not a resident of the state,” and again, “ that a person against whom there is no objection except that of non-residence, is entitled to letters testamentary,’’etc. Both executors and administrators derive their authority from the issuance of letters by the surrogate’s court, and if a non-resident cannot be made a resident executor by the simple issuance of letters testamentary, a non-resident administrator cannot be made a resident administrator by the issuance of letters of administration.
    V. The court could not acquire jurisdiction by consent or any act or omission of the parties and might, whenever its attention was called to the defect in the proceedings, refuse to exceed the powers conferred by the law of its creation. Davidsburgh v. Knickerbocker Life Ins. Co., 90 N. Y. 526 ; Bates v. New Orleans, etc. R. R. Co., 4 Abb. Pr. 72. Titus v. Relyea, 8 Abb. Pr. 177; Williams v. Van Valkenburgh, 16 How. 144; Hallett v. Righters, 13 How. 43; Dudley v. Mayhew, 3 N. Y. 12; Chapman v. Phenix Bank, 44 Super. Ct. 361; Davidsburgh v. Knickerbocker Co., 90 N. Y. 526; Jones v. Trans. Co., 50 Barb. 193; Rhode Island v. Massachusetts, 12 Peters, 719. Two cases may be relied on in opposition. One is the case of Johnson v. Adams Tobacco Co., 14 Hun, 89. This case was decided on the ground that the cause of action arose within the state. The rest is obiter, or if it is not obiter, it is directly opposed to the decision of the general term of the supreme court in Bates v. R. R. Co., 4 Abb. Pr. 72, and the case of Brooks v. Mexican National Construction Co., supra, that the defect of want of jurisdiction of the subject matter could be disposed of on motion. The other case is Atlantic, etc. Co. v. Baltimore and Ohio R. R. Co., 87 N. Y. 355. This was a case in which there were conflicting affidavits in regard to the jurisdictional facts, and the case is adverse to the plaintiff, for the court says: “ Perhaps in a case free from doubt, the court might dismiss the whole proceeding on a motion to set aside the summons.” This case is free from doubt. There is no dispute as to facts. And in a later case, the court of appeals distinctly held that the court “might, whenever its attention was called to the defect in the proceedings, refuse to exceed the law of its creation.” Davidsburgh v. Knickerbocker Life Insurance Co., 90 N. Y. 529 and 530.
    VI. The counsel for the plaintiff in the court below laid great stress on the case of Leonard v. Columbia Steam Navigation Co., 84 N. Y. 48. That case has no application here, for the defendant company was a domestic corporation. This was pleaded in the complaint and admitted in the answer. See pages 371 and 376, Case on appeal to court of appeals, Vol. 568 of Cases on Appeal in Law Institute and Bar Association Libraries.

      Thomas P. Wickes, attorney, and of counsel for respondent, argued:—
    I. The administrator plaintiff, by reason of his having duly received from the surrogate of the county of New York, letters of administration, which are still in force, is, in contemplation of law, a resident therein. The administrator plaintiff exists by virtue of his appointment under the laws of the state of New York, and his powers and duties are prescribed by its statutes. He is the creation of the local law. A foreign administrator, as such, would have no status in this forum. This is well settled: Parsons v. Lyman, 20 N. Y. 103, 112; Morrell v. Dickey, 1 Johns. Ch. 153 ; Doolittle v. Lewis, 7 Ib. 45; Vroom v. Van Horn, 10 Paige, 459. In its essential features, the case at bar is identical, in this respect, with the case of Leonard v. The Columbia Steam Navigation Company (84 N. Y. 48). This case is approved in Dennick v. Railroad Co., 103 U. S. at p. 21. The case of Rice v. Houston, 13 Wallace, 66, is a further authority in support of our present contention. To the same effect is Dart v. The Farmers’ Bank of Bridgeport, 27 Barb. 337. By his letters of administration, therefore, the plaintiff in the case at bar represents the sovereignty of the state of New York, and his personal citizenship may be disregarded. In contemplation of law, pro hac vice, the administrator plaintiff is a resident of the city and county of New York. Therefore the court has jurisdiction under the provisions of both § 263, subd. 7, and § 1780 of the Code of Civil Procedure.
    II. A cause of action for wrongfully causing the death of a person, accruing in, and given by the statute of, one state or country, may be enforced in any other state or country, where jurisdiction of the parties can be obtained, provided that the laws of both states or countries substantially concur in giving a right of action for the injury complained, of. Such a cause of action is transitory and personal, and “in contemplation of law the injury arises anywhere and everywhere. ” Leonard case, 84 N. Y., at p. 52. The cause of action in the case at bar, therefore may have an arbitrary venue assigned to it, and be treated as having arisen in the city of New York. And the authorities are now unanimous, to the effect that the courts in either state or country, which can by their process obtain rightful jurisdiction over the person of the defendant, will enforce liabilities arising in the other. Leonard Admr. v. Columbia Steam Navigation Co., 84 N. Y. 48 ; Dennick Admx. v. Central R. R. Co. of New Jersey, 103 U. S.11; Stallknecht Admx. v. Penn. R. R. Co., 13 Hun, 451; Burns Admr. v. Grand Rapids & I. R. R. Co., 37 Alb. L. J. 228; McDonald Admx. v. Mallory, et al, 77 N. Y. 546; S. C. 7 Abb. N. C. 88; Mahler Admx. v. Norwich & N. Y. Trans. Co., 35 N. Y. 352; Debevoise Admx. v. N. Y., Lake Erie R. R. Co., 98 Ib. 377; Herrick v. Minneapolis, etc. Ry. Co., 31 Minn. 11; Great Western Ry. Co. v. Miller, 19 Mich. 305 ; Knight v. West Jersey R. R. Co., 108 Penn. 250; Hyde Admr. v. Wabash, St. L. & P. Ry. Co., 61 Iowa, 441; Central Railroad Co. v. Swint Admr., 73 Ga. 651; South Carolina R. R. Co. v. Nix Admr., 68 Ga. 572; McLeod v. The Conn. & Pass.. R. R. R. Co., 58 Vt. 727; The Bernina, 56 Law Times Reports, 258 ; The Guldfaxe, 2 English Low Rep., Ecc. & Ad. 325; The Explorer, 3 Ib. 289.
    ■ III. If, however, it shall be considered that the cause of action may not be treated as having arisen within the city of New York, as contended in the second point, still the court has jurisdiction, because the case can be properly regarded as an action upon a contract made in the city of New York, or, if not made, undoubtedly performed in said city. The contract was to safely transport the deceased to Liverpool, (a) The action is on this contract. Doedt v. Wiswall, 15 How. 128-144 ; Bates v. Reynolds, 7 Bosw. 685; Jones v. Norwich & New York Transportation Co., 50 Barb. 193; McCormick v. The Pennsylvania R. R. Co., 49 N. Y. 303. (b) The contract was made within the city of New York. Although the place is not mentioned in the complaint, it will be assumed, since the contrary does not appear, that it was made in New York. Fisher v. Charter Oak Life Ins. Co., 14 Abb. N. C. 32. (c) But it is perfectly clear that the contract was to be performed in the city of New York. It is immaterial where the contract for passage was made, because it was perfectly understood that the deceased was to take passage upon the steamship in the city of New York. The defendant undertook that if she should present herself at the proper place in the city of New York on the 18th day of May, 1887, it would permit her to go on board its steamship; and that it would then safely transport her across the ocean to Liverpool. This contract could not be per?formed elsewhere than in the city of New York, and when the plaintiff’s intestate went on board the Britannic at the White Star Line pier, in the city of New York, the contract on her part was fully performed. The cause of action, therefore, arose within the city of New York. Burcle v. Eckhardt, 3 N. Y. 132; Bank of Commerce v. R. & W. R. R. Co., 10 How. 1; Hiller v. The Burlington & M. R. R. R. Co., 70 N. Y. 223; Johnson v. The Adams Tobacco Company, 14 Hun, 89; Toronto, etc., Trust Co. v. The Chicago, B. & Q. R. R. Co., 32 Hun, 190. (The cases cited under (a) were also relied on in support of this point.) The facts of the cases of Campbell v. The Champlain and St. Lawrence R. R., 18 How. 412; Cumberland Coal and Iron Co. v. Hoffman Steam Coal Co., 30 Barb. 150; Whitehead v. Buffalo, etc., R. R. Co., 18 How. 218; Davidsburgh v. Knickerbocker Life Insurance Co., 90 N. Y. 526 ; Ham v. The Barnegat Company, 7 Civil Pro. Rep. 222, distinguish them from the case at bar. In the present aspect of the case at bar, therefore, whether we regard the contract as “made” or as “performed” here, the cause of action arose within the city of New York. It follows that the court has jurisdiction under § 263, subd. 2 of the Code, or under § 1780.
    IV. The case at bar is readily distinguishable in several important particulars from the case of Brooks v. The Mexican Construction Co., 49 Super. Ct. 234; S. C., reported after a re-argument, 50 Ib. 281. 1. The plaintiffs in the Brooks case were non-residents; in the case at bar the plaintiff is a duly appointed New York county administrator. 2. The Brooks case proceeded upon a common law cause of action, which arose out of the state; the case at bar sets up a statute of a foreign-country, which is of identical import and character with a statute existing in the state, and which, it has been declared by the highest authorities, may be enforced in the state. 3. Or, in another aspect of the matter, the Brooks case set up a tort, pure and simple, which occurred out of the state; the case at bar declares upon a contract made within the city and its performance commenced there. 4. The Brooks cause of action, although transitory, could not be brought here, because the Brooks plaintiffs, collectively, were non-residents; in the case at bar the transitory cause of action is made the basis of a complaint by a duly authorized local officer, the very person designated by laAV to maintain such an action. 5. In the Brooks case the defendants moved promptly “before issue joined; ” in the case at bar, the point is taken by the defendant’s answer, a notice of trial of “the issues” is served, and motions relating to the trial are argued, before the motion to dismiss, etc., is made. 6. In the Brooks case it was open to the defendants to make the motion at any time; in the case at bar, by putting the matter in issue by its answer, and by then noticing the issues for trial, the defendant became estopped from raising the point at any other time than at the trial. 7. The Brooks case also differs in that there was no such constitutional question presented or argued therein as appears in the case at bar.
    V. The discretion of the learned judge who heard the motion below was properly exercised in denying it; and in the exercise of a similar discretion the order appealed from, should, for the same reasons, be affirmed. There are several reasons—(a) The defendant had waived its right to make the motion by noticing the cause for trial. Kellogg v. Bakler, 15 Abb. Pr. 286,289. Moreover, the effect of the defendant’s general conduct since issue was joined, has been such as to distinctly waive its right to the relief moved for; by the letter of its attorneys; by its motion for a commission to be used at the trial; by its stipulating to set the cause down for trial, (b) The motion was improper. Bank of Commerce v. R. & W. R. R. Co., 10 How. Pr. 1; McMahon v. The Mutual Benefit Life Ins. Co., 8 Abb. 297; Johnson v. The Adams Tobacco Co., 14 Bun. 89; Atlantic & Pacific Telegraph Co. v. The B. & O. R. R. Co., 87 N. Y. 355.
    VI. It has been held again and again that actions to recover damages for personal injuries, etc., etc., could properly be maintained in all the courts of this state, notwithstanding the fact that all the parties were aliens or non-residents and that the cause of action arose abroad. Smith v. Spinola, 2 Johns. 198; Gardner v. Thomas, 14 Ib. 134; Johnson v. Dalton, 1 Cow. 543 ; Dart et al. v. The Farmers’ Bank at Bridgeport, 27 Barb. 337; Ruse v. Mut. Ben. Life Ins. Co., 23 N. Y. 516; McIvor v. McCabe, 26 How. 257; Smith v. Butler, 1 Daly, 508; Latourette v. Clarke, 45 Barb 327; De Witt v. Buchanan, 54 Ib. 31; McCormick v. Penn. R. R. Co., 49 N. Y. 303, 308 ; Newman v. Goddard, 3 Hun, 70. The “ regular way ” to dispose of the issues is to try them. When an action is at issue, and notice of trial has been served, there is no other way in which it can be properly disposed of than by a trial, (c) The motion was for the purpose only of delay, and not in good faith. It was obviously a dilatory motion; every objection made could be raised upon the trial.
    ■ VII. The learned judge below was right for the additional reason, that if he had granted the motion to dismiss, such a decision would have been in conflict with § 2 of Article. IV. of the constitution of the United States, which provides that “ the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states.” It will not be disputed that a citizen of the state of New York could maintain this action provided letters of administration were granted to him. If the public administrator of the city of New York or some other competent stranger, personally residing here, could obtain letters of administration he would have all the requisite authority therefor. It cannot be possible that the intestate’s own father, because his personal citizenship is in the state of Massachusetts, will be denied the right to maintain an action, which a perfect stranger to the intestate, a citizen of New York, could maintain. Nor that a citizen .of Massachusetts cannot resort to the same legal remedies which a citizen of New York is entitled to. No; when the plaintiff received his grant of administration, the privilege of maintaining this very action was guaranteed to him by the Federal constitution.
   By the Court.—Sedgwick, Ch. J.

On the motion below it appeared clearly, that the plaintiff was a non-resident of this state; that the defendant was a foreign corporation ; and that the cause of action did not arise within this state. No court of this state had jurisdiction of the action. § 1780, Code Civil Procedure.

We must follow the case of Brooks v. Mexican National Construction Co., 50 Super. Ct. 281, that decides that the court is not in possession of jurisdiction, against the force of the statute, when as here, the defendant has not declared in his answer, that there is no jurisdiction, and that a waiver of the defense of no jurisdiction because of non-residence in the city is not a waiver of the objections that are grounded upon non-residence in the state.

The learned counsel for respondent argues, however, that the plaintiff, although otherwise a non-resident of this state, became for the purposes of this action, a resident of. the state by force of the letters of administration granted to him, in this county. , I do not recognize the proposition to be valid. The non-residence of the plaintiff was determined by the existence of certain facts before letters were issued to him. By the statute such letters may be issued to a non-resident. The letters did not destroy any of the facts Avhich made him a non-resident. After the letters were issued he remained a nonresident, and ever since has been a non-resident.

While it is certain that the cause of action alleged is o not local and is transitory, that consideration does not take the case out of section 1780 of the Code, which makes a condition precedent of jurisdiction, that the cause of action should arise within this state. A transitory cause may arise within any state. This was a transitory cause that arose without this state.

The action was not for damages to the intestate for the breach of a supposed contract with her to carry her safely, etc. The only demand of damages in the complaint jis for such as resulted from her death to the next of kin. The action ivas in tort, under Lord Campbell’s Act.

I am of opinion that the attention of the court may be turned, at any stage of an action to its want of jurisdiction, like the want here, and it may then declare to the parties that for that reason, the proceeding, from the beginning, had no legal efficacy, and that no further proceeding should be taken. This may be competently done, by setting aside the summons and all that followed.

It does not appear that granting the motion would have violated section 2, art. 4 of the constitution of the United States, which provides that “ the citizens of each .state shall be entitled to all privileges and immunities of citizens in the several states.” No action of a judge can confer power upon a court, when the state has not given it. The court can only ascertain what jurisdiction has been given. Any supposed neglect of a state to establish courts of sufficient jurisdiction cannot be remedied by the action of a judge or court.

The case of Popfinger v. Yutte, 102 N. Y. 42, is confined to jurisdictional defects mentioned in section 263 of the Code.

I am of opinion that the order appealed from should be reversed, and that the motion should be granted with $ 10 costs.

Freedman and Truax, JJ., concurred.


author: By the Court.—Sedgwick, Ch. J. Freedman, J. (dissenting)

text:
    RICHARD STOKER v. SAMUEL SCHWAB.

      Corporations de facto—power to take and convey real estate—effect of omission of seal on certificate made under 2 B. S., 7th ed., p. 1654.— Estoppel.

    The absence pf seals from the record under 2 B. S., 7th ed., p. 1654, of the certificate of incorporation of a church (the original certificate being lost, and there being no evidence whether or not seals were affixed to the original), does not so far invalidate the organization of the church as a corporation as to prevent it, as such corporation, from passing title to real estate, the organization of the church being in all other respects regular, the purchase of the real estate having been for church purposes, and the sale made in pursuance of an order of court allowing it.
    Under such circumstances, the church is a corporation de facto at the least capable of taking real estate and conveying with the permission of the court.
    The grantor, of such church, having received the consideration of the deed from his grantee as a corporation, would be estopped from asserting that it was not a corporation.
    Before Sedgwick, Ch. J., Freedman and Truax, JJ.

      Decided June 20, 1888.
    Submission of a controversy upon an agreed state of facts.
    The facts appear in the opinions.

      Ferdinand Kurzman, for plaintiff:—
    I. The church by its corporate name of “ St. Paul’s African Methodist Episcopal Church in Morrisania,” on or about the first day of January, 1869, acquired said property, and continued in possession thereof, using the same as a place of worship for said church until about the first of July, 1873, when by its said corporate name it conveyed the premises to the plaintiff.
    II. The certificate purports to have been sealed from its termination which is “witness our hands and seals” etc. This of itself raises a presumption that the seals were affixed, and if so affixed, the fact that the certificate as recorded does not appear to have had seals, whether such fact is due to the mistake of the recording officer or to the loss of the seals after the execution of the instrument is not fatal to its validity. Trustees, etc., v. Bly, 73 N. Y. 323.
    III. The record of the certificate is not made evidence by the statute. It must be proved and recorded before the society becomes incorporated, but if it becomes necessary to prove the incorporation, the original must be produced or its loss proved and parol evidence given of its contents. Jackson ex dem. Wolton v. Leggett, 7 Wend. 379. The fact that seals were attached to certificate must be proved the same as any other part of the contents thereof, and no presumption of their omission arises from the absence of seals on the record.
    IY. The corporation having assumed to be duly organized and accepted a conveyance of the premises by its corporate name and subsequently conveyed it by the same name, could not set up the defect in its certificate of incorporation, neither could Waddrop who was one of the trustees named in the certificate, and who conveyed the property to the church by its corporate name, and who, as it appears, as president of the church corporation, executed the deed to plaintiff. Methodist Episcopal Church v. Pickett, 19 N. Y. 482; Morawetz on Private Corporations, § 753, and cases cited.

      Maurice Rapp, for the defendant:—
    I. The statute requires that the returning officers shall certify under their hands and seals certain matters, which certificate shall be recorded, and thereupon, the trustees shall be a body corporate. 2 R. S., 7th ed., p. 1654. Until that is done there is no corporation.
    II. Evidence of mere user, however long continued is not enough to prove the existence of a private corporation. Methodist Ep. Ch. v. Pickett, 19 N. Y. 482.
    III. The original certificate is undoubtedly the best evidence to prove the incorporation; but a certified copy is admissible, if on notice the original is not produced. Abbot's Trial Evidence, ed. 1885, p. 25.
    IY. The register of Westchester county, in whose office the certificate was recorded, being a public officer, is presumed to have done his whole duty. Accordingly the record must be presumed to be a correct and true copy of the original. And as the record does not contain any evidence that a seal was affixed to the original, the original, in the absence of proof to the contrary must be presumed to have had no seals. Unless it is shown that there were seals on the certificate, which before recording were lost or that the recording officer made a mistake in recording, the incorporation is not consummated, and until such consummation, there is no corporation either to take or to pass title. Trustees of St. Jacobs Lutheran Church v. Bly, 73 N. Y. 323.
   By the Court.—Sedgwick, Ch. J.

The question is whether the plaintiff had a title which he could convey. The objection is, that his right comes through a deed by a grantor called St. Paul’s African Methodist Episcopal Church, and that such grantor was not a corporation with legal capacity to take and convey real estate. There was a charter providing for the formation of such religious corporation, a certificate was filed, in pursuance of statute, which would have legally created the corporation, if it had in all respects complied with the statute, and the corporation acted ás a corporation under the statute and the certificate. It was therefore, a corporation de facto at the least capable of taking real estate and conveying with the permission of the supreme court. In this case the permission was obtained. The only defect indicated is that the certificate was not sealed, as it is said is required by the statute. This does not prevent the creation and continuance of a corporation defacto.

No one has an interest in the title excepting by supposition the grantee of the corporation. Having received the consideration of the deed, from the grantor as a corporation, he would be estopped from asserting that it was not a corporation.

The plaintiff should have judgment with costs.

Truax, J., concurred.

Freedman, J. (dissenting)

This is a submission of a controversy upon an agreed state of facts, and the sole question is whether the St. Paul’s African Methodist Episcopal Church in Morrisania as a corporation can pass a good and sufficient title to real estate in the absence of evidence that there were seals affixed to the original certificate of incorporation, such original certificate having been lost and the record failing to show that there was a seal or seals affixed and there being no evidence whatever that a seal or seals had ever been affixed. The certificate in question appears to have been signed by two of the members of the church. It was also acknowledged by them before a notary public, and then recorded in the office of the clerk of the county of Westchester. The record contains no mark or marks indicating that there was a seal or seals affixed.

The statute (2 R. S., 6th ed., p. 413, § 4; 7th ed., p.1654), prescribes that the two members of the church who preside at the first election of trustees, shall as returning officers certify under their hands and seals certain matters, which certificate shall be recorded, and thereupon such trustees and their successors shall be a body corporate. Until that is done there is no corporation.

The fact that the certificate as recorded does not appear to have had seals, is not necessarily fatal. Parol evidence may be given that the certificate was in fact executed under seal, and in the case of The Trustees of the St. Jacob’s Lutheran Church of the town of Eden v. Bly, 73 N. Y. 323, upon which the plaintiff here relies, such parol evidence was given.

There being no such evidence in the case at bar, the defendant is entitled to judgment with costs as prayed for in the submission.