We are dealing .with the undivided. shares of three tenants in common who are children and the only surviving heirs of Rose Welcome, deceased, the common ancestor. Giving to the former partition action all,.the effect which is claimed for it; it was insufficient to extinguish the,title of Jane Lasher, one of said thrée tenants in common, for the reason that she had conveyed her interest in the property by a deed recorded- before the institution of such partition action and the grantee was not made a party thereto. Plaintiff has confessedly - acquired the record title of said Jane Lasher.
But it is said that such record title is void for champerty. Plain*361tiff and appellant are confessedly tenants in common. Each goes back to a common grantor and each title unless champertous confessedly is valid and coexists with the other. In Finn v. Lally (1 App. Div. 416) it was said in speaking of the effect of the Champerty Act* on such a situation : “ These titles are not, therefore, hostile the one to the other within the meaning of this act. Each goes back to a common grantor and seeks to establish its validity by showing a descent from him in right line. For this reason it cannot be said that the plaintiff’s deed is void.”
But to go still further I find no evidence in this case that appellant ever claimed title adversely to plaintiff’s grantors. The Champerty Act (Real Prop. Law, § 225) is : “A grant of real property is absolutely void if at the time of the delivery thereof ■such property is in the actual possession of a person claiming under a title adverse to that of the grantor.” Under this statute two independent facts are necessary to vitiate a. deed, first, actual possession of the property, and second, a claim of title adverse to the grantor. Assuming that appellant was in possession of the property it by no means follows that she- claimed such possession under an adverse title. The referee’s deed in the partition action did not on its face purport to convey the entire title of the property but only the interests of certain specified parties not including the grantee of. Jane Lasher, who at that time owned her interest. Such form of the deed was in conformity with statutory requirement. (Code Civ. Proc. § 1244.) The purchaser under the partition sale, one Tindale, remained the owner from 1897 to 1902, when he conveyed his interest to the appellant. The title of plaintiff’s grantor was a matter of record, and both Tindale and appellant must be assumed to have known that they had only the interest of a tenant in common and there is no pretense that either ever claimed otherwise. There is no evidence that either ever disputed the title of plaintiff’s grantor, their cotenant. As tenants in common it should be presumed that each recognized the rights of the other, and claimed only such rights as belonged to each under their respective deeds. The possession of one of several tenants in common should be deemed the possession of all in accordance with their common interests rather than *362a possession of one to the exclusion of the others in the absence of evidence to the contrary. The property consists of a blacksmith shop, wheelwright shop and garden. The appellant as a witness was able to say no more than that her husband had" occupied the blacksmith shop for seventeen years. At the beginning of such occupancy the common ancestor, Bose "Welcome, had just died, and none of her heirs had yet given any deed. Surely appellant was not then claiming adversely to those heirs. There was no apparent change in the character of her possession after the conveyance by the referee to Tindale or by the latter to hei\ At the time of giving her testimony on the trial she claimed to occupy both shops and that she worked the garden in May, 1907. But'there is no evidence of any occupancy except of the blacksmith shop prior to the conveyance to plaintiff of Jane Lasher’s interest. The appellant did not, live there. She does not testify to any hostile word or act as against her co tenant add as far as the evidence discloses such co tenant" may have used or been in the enjoyment of a part of the property during all the time down to plaintiff’s conveyance.
“ Although one tenant in common grants to a third party the joint premises, by a deed conveying his whole interest and thereby enabling the grantee to lay the foundation for an adverse possession, yet the mere fact that the grantee takes possession under the deed is not of itself sufficient to begin an adverse possession such as will oust his cotenant. Before that can be begun there must be notice in fact to the cotenant that the adverse claim is made, or there must be such open and public acts by the adverse claimant as will make his possession so visible, hostile, exclusive and notorious that notice on the part of the cotenant of the claim adverse to his right may fairly be presumed. (Culver v. Rhodes, 87 N. Y. 348.)” (Hamershlag v. Duryea, 38 App. Div. 130.)
It 'has been held that the facts required by the Champerty Act to avoid a grant must be shown by plain and unequivocal proof and that every presumption is in favor of a possession in subordination to the title of a real owner. (Wickham v. Conklin, 8 Johns. 220 ; Jackson v. Sharp, 9 id. 163 ; Jackson ,v. Waters, 12 id. 365 Howard v. Howard, 17 Barb. 663.) This defense is tolerated and not encouraged for the reason that it has little application to modern conditions. (Thallhimer v. Brinckerhoff, 3 Cow. 644; *363Sedgwick v. Stanton, 14 N. Y. 289; Crary v. Goodman, 22 id. 177; Bissing v. Smith, 85 Him, 570; Finn v. Lolly,! App. Div, 415; Saranac Land & Timber Co. v.. Roberts, 125, id. 333.)
. I, therefore, think that the defense of champerty has not been, sustained: ...
Interlocutory judgment reversed on law and facts and new trial granted, with costs to appellant to abide event.
See 1 R. S. 739, § 147 ; .revised in Real Prop. Law (Laws of 1896, chap. 547), § 225.— [Rep.