[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 480 The plaintiff claims in this action to recover a portion of the money paid by the city to the respondent, as a compensation for lands taken by the city for the Central park. These lands were taken under the act of 1859, chap. 101, and of 1853, chap. 616. These acts make the act providing for the taking of land for streets by the city, applicable to lands taken for the park, in respect to the right of recovery, by the true owner of land taken, of money which has been awarded and paid to another for such land. The latter act (§ 184 Davies Laws of New York), relative to the city, 538, provides that in all, each and every case when any sum or sums or compensation so to be reported by the said commissioners in favor of any person, etc., whether named or not named in the said report, shall be paid to any person or persons or party or parties whomsoever, when the same shall of right belong and ought to have been paid to some other person or persons or party or parties, it shall be lawful for the person, etc., to whom the same ought to have been paid, to sue for and recover the same with lawful interest and costs of suit, as so much money had and received to his use, by the person or persons, etc., respectively, to whom the same shall have been so paid. It follows that if the respondent, to whom the money was awarded and paid as compensation for the land, was not the owner thereof, but the appellant was such owner of the whole or any part thereof, he can maintain this action for the recovery of such portion of the money as his interest in the land entitled him to receive, notwithstanding the award of the commissioners giving it to the respondent. The question, therefore, is whether the appellant showed title to the whole or any portion of the land for which the money was awarded and paid to the respondent. *Page 482 I shall assume, in the consideration of this question, that the lands in question were shown to have been included in the patent given by William Kieft, Director General of the New Netherlands, in May, 1747, to Johannes Montange, and that the latter there acquired a valid title thereto under the patent, although the question is involved in much uncertainty from the defective description, other than that the lands conveyed were occupied by Hendrick Foreest, deceased. From the great lapse of time, no aid in locating the lands could be derived from this clause, as all trace of any occupancy of Foreest has long since been lost. I shall further assume that there was evidence to show that James A. Cosse, who gave a conveyance of the land, together with other land in 1862, to the plaintiff, and his grantor, John Montange, was a descendant of the patentee sufficient to require the submission of the question to the jury. Assuming that the jury would have found in favor of the plaintiff upon these questions, as we must, as the judge refused to submit them to the jury, it follows that the plaintiff showed a right to some part of the land as the grantor of two of the heirs of the patentee, and therefore a prima facie right to recover some portion of the money paid by the city to the defendant therefor. This brings us to the question whether the defendant showed title in fee to the land in himself. The case contains no evidence as to any occupancy of the land or in any way affecting the title until the year 1760, when a deed claimed to include the premises was given by Lawrence Kortwright to Sarah Nutter. This deed recites that Sarah Nutter was then in possession, and that Kortwright had lately been in possession of the land. This deed was excepted to as evidence by the plaintiff, but was received without proof of its execution as an ancient deed. No direct proof was given of an actual possession by Sarah Nutter, but it was proved that she died about the year 1790, leaving her son, Valentine Nutter, her only heir, and that Valentine Nutter was in possession of the land, cultivating it as a farm, having surrounded it with a substantial fence, residing thereon, claiming *Page 483 to own it as heir of his mother under this deed from Kortwright as far back as 1806, which was as far back as the memory of witnesses residing in the neighborhood extended; but from the testimony of the situation of the farm improvements thereon in 1806, it was rendered highly probable that it had been occupied for a long time before, and cultivated as a farm probably by Valentine Nutter from the death of his mother in 1790, and by her previous to her death, after the deed from Kortwright to her. This proof of possession under the Kortwright deed was sufficient to authorize its being read in evidence without proof of its execution. The plaintiff proved by a surveyor that he could not locate the lands described in the deed from the description upon the lands in question. This may well be true, and yet not at all tend to show that such lands were not embraced therein. The witness could not avail himself of that important part of the description, which states that the land had lately been in possession of Kortwright, and was then in possession of Sarah Nutter, the grantee. What particular land they were in possession of nearly a century before the trial could not be proved, nor could it be known to the surveyor. The facts that Valentine Nutter, sixty years before the trial, was in the undisputed possession of the land, claiming to own the same by descent from his mother, under this deed; that such possession and claim were unchallenged by any adverse claimant, and that, from the facts proved, it was probable that possession had been held under the deed from the time it was given, when the facts were known, were stronger evidence that the land so possessed and claimed was included in the deed, than was the inability of the surveyor so to locate as to include the land after the lapse of nearly a century, that it was not so included. The testimony proved beyond question that Valentine Nutter was in the exclusive possession, claiming to be the absolute owner by descent from his mother, founding his title upon this deed of the farm, embracing this land, from 1806 down to 1828, when he conveyed a piece of the farm, embracing the land in question, *Page 484 to the Harlem Canal Company, receiving back a purchase-money mortgage, which was afterward foreclosed in equity, and the land sold upon the decree and purchased by Watt, to whom it was conveyed by the master; and that the defendant, through several conveyances, acquired this title in May, 1860. It thus appears that if title was shown in Valentine Nutter, the defendant was the owner of the land, and entitled to the money received by him. But the adverse possession of Nutter was before the Revised Statutes were enacted. At that time to establish a title founded upon adverse possession, as against one holding the paper title, such possession must have been continued for twenty-five years. (McCormick v. Barnum, 10 Wend., 104; Simpson v. Downing, 23 id., 316.) In the present case the direct evidence of possession by Valentine Nutter of the land in question was only from 1806 to 1828, a period of only twenty-two years. This would not establish title against those having the paper title, although the land has been claimed ever since 1828 by those deriving title from Nutter, through deeds; yet there does not appear to have been any actual possession by those holding this title. This time cannot be added cumulatively to the possession of Nutter to complete the twenty-five years. But we have seen that there was strong circumstantial evidence tending to show that the possession of Nutter, under an exclusive claim of title, founded upon the Kortwright deed, commenced long anterior to 1806, and reached back to 1790, the time of the death of his mother. The judge was right in giving effect to this circumstantial evidence after so great a lapse of time, and holding that an adverse possession in Nutter for more than twenty-five years was shown. The counsel for the appellant insists that an adverse possession, although for the length of time required by statute to bar the true owner, is available only as defence to a suit brought by such owner for the recovery of the land. In this the counsel is in error. When the possession is actual, exclusive, open and notorious, under a claim of title adverse to any and all other for the time prescribed by statute, such *Page 485 possession establishes a title. To uphold it, a grant from the true owner to such party may be presumed. (Washburn on Real Property, vol. 3, 135 to 142 inclusive, and cases cited;Stevens v. Tuft, 11 Gray, 35.) In the present case such presumption was peculiarly appropriate. The land was a valuable farm. It was inclosed and occupied as such probably for nearly a century, under a claim of title adverse to that of the Montange heirs. They interposed no claim whatever. The presumption is, that their title had been acquired by those in possession claiming the title. There was never any abandonment of this title. Although there has not been an actual occupancy by those holding the title, yet there has been a constant claim of title, under a regular chain of deeds from Nutter, to the time the land was taken by the city. The judge was therefore right in directing a verdict for the defendant, upon the ground, that he had shown a good title to the land, and the judgment of the General Term, affirming the judgment rendered upon the verdict, must be affirmed, with costs.
All concurring, judgment affirmed.