Martin, J. The appellant seeks a reversal of the judgment herein, only so far as it relates to the premises first described in the complaint. The grounds upon whfeh it is sought are: (1) That, when the action was commenced, she had a hostile title, and was in actual possession, claiming the lands adversely; (2) that she held a mortgage on the premises, and her possession ought not to be disturbed until the mortgage is paid or its payment provided for.
The proof in this case is such as to render it unnecessary for us to determine whether, since the adoption of the Code of Civil Procedure, which provides for the trial of title in such actions, (section 1543,) a subsisting adverse possession is a bar to an action for partition. The only evidence contained in the record that bears upon this question is that of the appellant and one of the respondents.
The latter testified: “The river place (being the premises in question) is now occupied by James Decker, husband of Angeiine; he has control of it; has had possession of it since April, 1884; he has occupied it since my father’s death.” The appellant testified: “I have had charge of it since my father’s death. * * * I am now in possession of it. ” The referee refused to find that she was in exclusive possession of the land in question.
Under this evidence, it cannot, we think, be held that there was a subsisting adverse possession in the appellant. The seisin of one cotenant, unless proved to be adverse, is the seisin of all, and either may institute proceedings for partition, although not personally in possession. The possession of one tenant in common is presumed to be that of all. Hitchcock v. Skinner, Hoff.
Ch. 21; Beebe v. Griffing, 14 N. Y. 235; Florence v. Hopkins, 46 N. Y. 186; Culver v. Rhodes, 87 N. Y. 348; Hulse v. Hulse, (Sup.) 5 N. 841 Y. Supp. 747. Hence the judgment should not be reversed on the ground first stated. This leaves for consideration the question whether the appellant was a mortgagee in possession. The only proof that tended to show that she stood in the relation of a mortgagee of the premises was that a mortgage thereon was given by William la Tourette to Elizabeth la Tourette in 1833.
In 1852 one Henry la Tourette made a written assignment of that mortgage to the appellant, and to his signature thereto he added the words, “Administrator of the Estate of Elizabeth la Tourette.” There was no proof whatever either of the death of Elizabeth la Tourette, or that Henry la Tourette was the administrator of her estate. Upon the evidence as it stood, we think the referee was justified in refusing to find that the appellant was the owner of that mortgage.
Hot having been shown to be the owner of a mortgage upon the premises, she could not be treated as a mortgagee in possession. We find no sufficient reason to disturb the judgment, and consequently think it should be affirmed. Judgment affirmed, with costs. All concur.
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