Diefendorf v. . Diefendorf

Brown, J. The complaint contained all the allegations essential to constitute this an action to determine claims to real property. (Code C. P. §§ 1638, 1639.) *107 The appellants claim that the proof did not show that the-plaintiff was in actual possession of the property. The court found that after her husband’s death she continued to reside upon it and assumed to be its owner and collected the rents-from the part not used by her. The property was on the corner of Division and Canal streets in the village of Fort Plain, and a large building covered nearly the whole lot. The first floor was used for stores. The plaintiff occupied the second and third floors, partly for a millinery and partly as a residence. She testified that she had property in every room in the second and" third stories. The other parts of the building were rented to tenants who paid their rent to the plaintiff. In this occupation there was that foothold upon the ground which is essential to constitute actual possession. Upon the trial defendants moved to dismiss complaint on the ground that the plaintiff had not been in possession for three years. Under the statute it was requisite to the maintenance of the action that there should have been possession for three years or more by the plaintiff or by her and “those whose estate she had.” The plaintiff’s husband had been in possession for many years and it was only necessary that the total time of the possession of both should be three years. It is not essential that such possession should be adverse for three years to the defendants’ claim. Between the date of the conveyance under which plaintiff claimed and the commencement of this action, there was a period of about two years and eight months, and we think the action was properly brought. Upon the facts of the case we concur in the result reached by the General Term. The weight of the testimony was to the effect that Diefendorf intended to make a present conveyance of his property to his wife, and we think there is very slight ground to hold that he intended to make a will. He inquired of Doctor Ayres if he could draw a deed. The *108 statement that he desired to give his property, to his wife must be construed in that connection. He contemplated and intended a gift by deed. In form the instrument is a deed. It was sealed and acknowledged as such, and the deceased appeared to understand the necessity of an acknowledgement as he directed the procurement of a notary public to take it. There was nothing in his request to the doctor after its execution to indicate an intention not to make the conveyance effectual immediately. The only direction he gave was that it should not he recorded, but the delivery was for his wife. It was not essential that the delivery should have been to the plaintiff. Delivery to Doctor Ayres for her use was enough. (Church v. Gilman, 15 Wend. 656.) The deceased reserved no control over the deed, and there is no question in this case as to its acceptance. The title passed to the plaintiff. The order should be affirmed and judgment absolute rendered against the appellants. All concur, except Lahdost, J., not sitting. Order affirmed and judgment accordingly.