[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 476 The referee found that the ancestor Christian Barnhart was not the owner, and had no title to the premises in question at the time of his death in 1835. This conclusion must have been based upon the finding of fact, that in 1828, the said Christian Barnhart conveyed the premises by a full covenant warranty deed to William T. Hussey. The only evidence to sustain this finding was a certified copy of a deed from the county clerk's office of Wayne county. It does not appear otherwise that said deed was ever delivered; the grantee was never in possession. More than forty years had elapsed, and no claim was ever made under the deed, nor indeed does it appear that any such person as the grantee ever existed. The circumstance that the property was improved, and valuable only for its use and occupation in a thickly settled community; that no claim has ever been made under it; that the grantor and his heirs and representatives have been in the undisturbed possession for so long a period without recognizing any rights under it are sufficient to repel the presumption of delivery arising from the record alone, and a contrary presumption either that the deed never was delivered, or that a reconveyance had been made, is more reasonable. Another answer to this deed is that the defendants do not connect themselves in any way with it, nor have they derived any title through or under it; and if they had it would not avail against the *Page 479 rights of the plaintiff, unless their possession was hostile in its inception, or they had surrendered their prior possession and entered under the newly acquired title (25 Wend., 389), and cases cited.
The ancestor Christian Barnhart entered into possession of the premises in 1820, under a conveyance in fee from one Durfee, and remained in possession until 1835, when he died. leaving his widow, one of the defendants, and several of his children in possession. In 1827 Christian Barnhart mortgaged the premises to Margaret Jennings. In 1829 that mortgage was foreclosed, and the premises sold, and bid off by one Southwick, the then husband of the mortgagee, who contracted to sell the same to Barnhart for the consideration of $326, the amount of the mortgage. The contract was in the form of a lease, but in legal effect was a contract of sale, and was undoubtedly entered into in pursuance of an arrangement made at or prior to the sale. However this may be, it conveyed the equitable title to Barnhart, the purchaser Southwick holding the legal title as trustee to secure the purchase-money. At the time of the death of Barnhart, he held the premises under this contract, and upon his death his title descended to his heirs subject to the dower right of his widow.
With the Hussey deed out of the way, it is very clear that Barnhart the elder had this title in the premises at the time of his death, which descended to his heirs subject to the dower of the widow. The possession of the widow as dowress and as guardian in socage of the minor children was as tenant in common with all the heirs. She occupied the property, received the rents and profits, and paid up the amount due on the contract. The presumption from the evidence is that she paid the amount from the rents and profits, but whether she did or not, is not material in determining the question of title of the plaintiff. She could not buy in the contract or title for her individual benefit. She occupied a fiduciary relation to the heirs, which would prevent her purchasing for her individual benefit. *Page 480
There was also a purchase-money mortgage to Durfee, upon which was due at the death of Barnhart about $300, which the widow also paid; and when it was paid, in 1841, took an assignment to herself, and in 1870 foreclosed the same, and bid in the premises in her own name, and claims that the interests of the heirs were thereby cut off. This claim cannot be sustained. First. The presumption is that the mortgage was paid from the rents and profits. Second. When it was paid it became extinguished, and could only be available to the defendant upon an accounting. Third. The defendant occupied such a fiduciary relation to the property and the heirs as prevented her from purchasing or foreclosing the mortgage for her individual benefit. She cannot be regarded as a mortgagee in possession, and she sustained other and more confidential relations than those of a mere mortgagee. The case of Ten Eyck v. Craig (62 N.Y., 406) is not applicable.
I am unable to see how Almon, who took a conveyance from his mother after the sale under the foreclosure, can claim protection against the rights of the plaintiff. He was conversant with all the facts, and was in occupation with his mother as a tenant in common. The general rule is, that one tenant in common cannot purchase in an outstanding claim or title to the exclusion of his co-tenant. (2 J. Chy., 406.) It does not strengthen a title thus acquired by one tenant in common to transfer it to another who occupies the same relation, and especially one who has knowledge of all the facts. Adverse possession was not found or proved, and the referee rejected evidence offered to show that the possession was not held adversely. We do not deem it necessary to elaborate the points presented. We concur with the disposition which the General Term made of the case. An accounting must be had, and the rights and interests of the respective parties ascertained, and when that is done the court below can make such a disposition of the property as will secure the rights of each. Upon such accounting the rights of the widow and of the son Almon, who, by good management, *Page 481 economy, and frugality, have preserved and improved the property, will and should be fully protected. The property is not large in value, and the interests of each of the children are correspondingly small, and the amount involved cannot long survive an expensive litigation. This circumstance, together with the complication arising from the great length of time which has elapsed, makes it a case eminently proper for an equitable adjustment by the parties themselves.
The order of the General Term must be affirmed, and judgment absolute for the plaintiff on stipulation, with costs.
All concur, except RAPALLO, J., absent.
Order affirmed, and judgment accordingly.