This action is in ejectment. The plaintiff traced title to herself by conveyances from one Purdy, who, about 1850, was unquestionably the owner and in possession of a tract of land, including the lot in dispute. The only substantial defense sought to be. maintained on the trial ivas that of adverse possession, and the only question presented on this appeal is, whether the defendant proved such facts as entitled him to go to the jury on the question. According; to the defendant’s testimony, in 1867 he went into possession of the lot in dispute and inclosed it with a fence; that possession he continued to maintain up to the trial of the action. Being asked how he happened to fence the lot, *122he stated that the premises were open and abandoned, and he took possession of it, the same, as other people did the land around there. From this it is clear that the original entry of the defendant was not under any claim of title, and some claim of title is necessary to .constitute adverse possession.' “If it be a naked possession,, not accompanied with any claim of right, it will never constitute a bar,, but will enure to the advantage of the real owner.” (Humbert v. Trinity Church, 24 Wend. 587.) “Under the statutes of this State there must-be a claim or color of title, but if the entry is under color of title, the possession will be adverse, however groundless the title.” (Sands v. Hughes, 53 N. Y. 287. See, also, Matter of Blizzard, 44 N. Y. St. Repr. 189.) Therefore, if there had been no proof of . further claim of title by the defendant than to occupy this land.' simply because it was vacant, the direction of the trial court would have been correct.
But the defendant further testified that in 1869 he -bought the lot from.one Noll, and got a deed for. it;. that he did not record the deed because he did not know that it was necessary, and that the deed was afterwards burned up. There may be grave suspicion as to the truth of this story, excited by its. improbability, but •it was a matter to be passed on by the jury. If the jury believed this .story, then they might have found that from the time of obtaining this deed the defendant held the premises under a claim of right, for,, as was said in-the Sands Case (supra), however .groundless the title, if there be a claim of title, the possession will be adverse. It is true that in some of the cases and in the text books it is said that the original entry.must be made in hostility to the true owner, but' the rule is subject to qualification. “ A'possession taken under the true owner may, by a disclaimer of his title, subsequently become adverse.” (Jackson ex dem. Krom v. Brink, 5 Cow. 483.) So in Jackson ex dem. Swartwout v. Johnson (Id. 74) it was held that a possession taken at first under the true title may subsequently become, adverse. In Jackson ex dem. Belden v. Thomas (16 Johns. 293) it is said: “ The principle, however, that possession must, in its inception be adverse, arid continue so, is not well understood. ' In. those cases in which that observation occurs, nothing had happened to change the character of the first possession * * * If One enter on land without any title or claim, or color of title, *123the law adjudges the possession to be in subservience tti the legal owner, and no length of possession will render the holding adverse to the title of the owner; but if a man enters on land without claim or color of title, and no privity exists between him and the real owner, and such person afterwards acquires what he considers a good title, from that moment his possession becomes adverse. I am not sensible that the .court have ever held a contrary doctrine.” In addition to the acquisition of the deed from Noll we are inclined to think that the conduct and acts of the defendant may have constituted some evidence of a claim of title, the effects of which were to be determined by the jury. (Barnes v. Light, 116 N. Y. 34.)
The judgment should be reversed and a new trial granted, costs to abide the event.
All concurred.
Judgment reversed'and new trial granted, costs to abide the event.