Freund v. Ostrander

BARNARD, P. J. The plaintiff and his grantors have occupied the premises in question continuously since January, 1862, under operative conveyances. The several owners, while in possession, have erected and maintained buildings, and otherwise improved the lands under their claim of title. In March, 1892, the plaintiff agreed to sell the land to the defendant by deed according to the provisions of chapter 475, Laws 1890. The agreement contained this clause: 345 “And it is mutually understood and agreed by and between the parties to the-contract that the party of the second part shall not refuse to take title to said premises by reason of the party of the first part having, or claiming to have, title by adverse possession, unless that the party of the first part does not hold a good ■ title by adverse possession. ” The record of deeds in the clerk’s office of Suffolk county shows a record of a deed conveying the premises in question by Catharine Fleet to-Horace Greeley, dated April 5, 1854, and recorded June 14, 1854. Horace Greeley died leaving no infant heirs. The plaintiff’s title is good, under section 369 of the Code. The entry of the plaintiff and his grantors was under a claim of title founded on a written instrument as-being a conveyance of the premises in question; and there have been a-continued occupation and possession of the premises included in the-deed for over 20 years, under the same claim. By section 368 of the Code, mere possession is presumed to be under the legal title, and occupation by another is deemed to have been insubordinate to the legal title, “unless the premises have been held and possessed adversely to-the legal title for twenty years before the commencement of the action. ” Such an adverse possession is proven by the long occupancy under a series of warranty deeds from the beginning of 1862 to the present time. In Price v. Brown, 101 N. Y. 669, 5 N. E. Rep. 434, it did not appear• that any of the plaintiff’s grantors were ever in the actual possession of the lands. A title acquired by adverse possession is as good as one obtained by grant. Sherman v. Kane, 86 N. Y. 57. There should be-judgment for the plaintiff upon the submitted case, with costs. All; concur.