Ford v. . Belmont

Rapallo, J. The plaintiff in her complaint sets forth her alleged source of title to' the two lots of land in controversy in this action. That is a deed from the general assignee in bankruptcy. The facts found in the case show clearly that this deed conveyed nothing to the plaintiff, and that she has no title whatever to the land in dispute, or any share or interest therein. She had, nevertheless, been in actual possession for three years, and that was sufficient to entitle* her to maintain this proceeding, and compel the defendants to show their title. They showed upon the trial that they and those under whom they claim, were in possession of the premises long before the plaintiff entered thereon. This was sufficient to overcome the mere possessory title shown by the plaintiff, and to entitle the defendants to recover the land. The only point relied upon by the plaintiff in answer to this, prior possession of the defendants is, that it appears from the findings that the defendants had a title to one-third part or share of a tract of land, embracing the premises in dispute. The case docs not contain the evidence taken on the trial, and it does not appear on whose part this fact was proved. Neither does the case disclose what has become of the title to the other two-thirds, and there is nothing to show that they have not also become vested in the defendants by partition or otherwise. The fact is found that for a period of several years before the entry by the plaintiff under her unfounded claim, the premises had been in the actual possession and occupation of. the defendants through their agent, *571 ancl such prior possession is a sufficient answer to the claim of an intruder. (Smith v. Lorillard, 10 J. R., 356.) There is nothing- in the case which shows that the claim under which the defendants ivere in possession, was restricted to an undivided share. The judgment should be affirmed. All concur. Judgment affirmed.