[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 389 The action is ejectment and was brought to recover possession of an undivided one-twelfth part of the premises described in the complaint. The answer was a denial of the complaint, also title in the defendant, also title in the defendant arising from adverse possession of the premises for more than twenty years, and a counter-claim. *Page 390
The premises as claimed in the complaint consist of one hundred and twenty acres in the north-west corner of the east half of Great Lot No. 24, Evans Patent in Delaware County.
It was stipulated by the defendant for the purpose of this appeal, that the plaintiff showed title in herself as one of the heirs at law of Martha Bradstreet, deceased, to an undivided one-twelfth of the premises in question, except as such title may have been defeated by the adverse holding of the defendant herein and his predecessors, or parted with by force of the agreement of date March 5, 1875, hereinafter set forth.
The plaintiff proved and read in evidence an instrument of which the following is a copy:
"Received from A. Couse his note of $400, for the purchase-price with costs of suits, of an undivided two-thirds interest in 100 acres in the northwest corner of Great Lot 24 Evans Patent, known as the wild lot, and being the same premises claimed to have been occupied by the said Couse for some years past and I agree to forward to said Couse by mail, within ten days, a deed therefor.
"W. YOUMANS, "Attorney for Bradstreet Heirs.
"Dated DELHI, N.Y. March 5, 1875."
He proved that the land therein mentioned was that in dispute, also gave evidence that the note had not been paid and the recovery of a judgment upon the note which had not been paid.
The defendant examined his grantor at considerable length to prove the defense of adverse possession of the premises and that the defendant entered into the possession under a deed from his father Alexander Couse in 1882, who entered into the possession of the premises in 1849, under a deed from his father, Peter Couse, Sr., who some years before entered into possession under a written title from Joseph Nutter, and that such occupation had been continuous for over forty years and that none of the occupants had entered into possession under plaintiff or any one from whom plaintiff derived title, and was *Page 391 proceeding with the examination of other witnesses upon that subject when the court ruled as follows: "The court: I think I must stop this evidence; you must make some other defense than the Statute of Limitations or I must direct a verdict against you. The more I think of this question, the more I think the Statute of Limitations cannot prevail here." Defendant's counsel duly excepted to such ruling and decisions. "The court rules that under the contract of March 5th, 1875, and the note of $400 given therefor and the various stipulations and contracts in connection with that, that this defendant has lost his right to avail himself of the adverse possession of himself and of his predecessors and declined to receive any further evidence of occupation and of adverse possession by the defendant and his predecessors." To which ruling and decision the defendant's counsel duly excepted.
After some additional evidence on the part of the plaintiff in relation to a subsequent arrangement as to the time and condition of delivery of the deed and payment of the purchase-price, the court directed a verdict for plaintiff to which defendant excepted.
When the defendant was thus precluded from giving further evidence on the subject of adverse possession, that already given tended to prove title by adverse possession in the defendant's grantor at the time such instrument of March 5, 1875, was made, and thus there was presented a question of fact for the jury in that respect. And title so established may be as effectual as that created in any other manner for the purposes of remedy or defense founded upon it. (Barnes v. Light, 116 N.Y. 34; and cases there cited.)
Upon this state of facts the question is presented whether the defendant should have been precluded or estopped from proving the defense of title to the premises by adverse possession.
The plaintiff and Alexander Couse at the time such contract was made respectively claimed to be the owner of the premises and for the purposes of the question it may here be assumed that Alexander Couse and his grantor had been in *Page 392 the actual and continuous possession of the premises for forty or more years, and the plaintiff and those under whom she claimed had not during that period, if ever, been in the actual possession and that neither the said defendant nor any of his grantors had ever entered into or retained possession of the premises with any permission of or privity with the plaintiff or her predecessors in title.
In the absence of any of these relations, the defendant and his grantors owed no duty or obligation to the plaintiff and was, therefore, at liberty to fortify his title or purchase peace at any price and of whomsoever he chose.
If, however, the adverse possession of the defendant's grantor and those under whom he entered and claimed had not ripened into a title at the time the contract of March, 1875, was made, and excluding the time of the pendency of the action which was discontinued, the right to assert the continuance thereafter of such possession to perfect and support title as against the plaintiff would have been defeated by it.
I am aware of the rule that where a lessee or vendee enters into possession of premises under a lease or contract, he cannot, while he remains in possession, dispute the title of the lessor or vendor, but this case is lacking in the essential element which creates such estoppel. Neither the defendant nor his grantors entered into the possession by any manner of consent or contractual relation with the plaintiff or her ancestors or grantors. The rule in relation to estoppel does not apply "where, at the time of the purchase, the vendee is in as owner, claiming title, and his entry was not under the vendor." (Glen v.Gibson, 9 Barb. 634-640.) "Where a man is in possession of land as owner having title, he is at liberty to purchase the land over again as often as claimants shall appear, who are not in possession, and thus quiet such claims and fortify his title without being estopped from disputing the title of such subsequent vendors, should it afterwards become necessary for him to do so." (Jackson v. Leek, 12 Wend. 105; Bain v. Matteson,54 N.Y. 666.)
Even in a consummated purchase, the grantee in fee may *Page 393 purchase in an outstanding title hostile to his grantor and fortify his own defective title. (Kenada v. Gardner, 3 Barb. 589.)
In Watkins v. Holman (16 Peters, 54), it is said by the court, in discussing such relations, that "the relation of landlord and tenant in no sense exists between vendor and vendee."
Judge BRONSON, in delivering the opinion of the court in Osterhout v.Shoemaker (3 Hill, 513-518), says: "The grantee takes the land to hold for himself and to dispose of it at his pleasure. He owes no faith or allegiance to the grantor, and he does him no wrong when he treats him as an utter stranger to the title."
These views lead to the conclusion that the exceptions above mentioned were well taken and require a new trial.
Judgment should be reversed and a new trial granted, with costs to abide the event.