(dissenting):
Upon the trial no question was raised as to the pleadings, and all the facts with reference to the plaintiff’s title, and the defendants’ title and possession, and the respective rights of the parties, were fully litigated without question or objection, and the pleadings may be considered as amended to conform to the proofs.
*292The State obtained a tax deed in 1851, which was not recorded until 1911. No notice of this deed, or of any claim by plaintiff, was given to the defendants or any of their predecessors in title, and the premises were bought, sold and resold, possessed, improved and used by them, with the understanding that there was no question about the title. The Comptroller included these lands in a notice published in December, 1894, pursuant to section 13 of chapter 711 of the Laws of 1893 (now section 133 of the Tax Law), in a list of the wild, vacant and forest lands held by the State. However, these lands were not of that character, but were cultivated, improved and assessed to and in the actual possession of the defendants and their grantors. The publication, therefore, has no effect as to them.
The defendants base their claim of title upon a deed given by John Bass to Albert Hanner, in July, .1865, and four later deeds, all of which deeds were duly and promptly recorded and before the recording of the plaintiff’s deed. At the time of the conveyance by John Bass to Hanner, in July, 1865, the premises were in the actual, undisturbed possession of the grantor, who was living in a log house upon the said premises. There were then there fifteen acres of meadow and a log barn, and the land was fenced, cultivated and improved and used substantially in the manner in which farms in that locality were used. Hanner, at the time of the trial, was eighty-two years of age. He conveyed the land three years after he received the deed, but swears that he was in possession for nine or ten years before he sold them. It is a fair inference, therefore, that he was in possession from six to seven years upon contract of purchase before he received his deed, which would date his possession from about 1858. The State collected taxes from the defendants and their predecessors in title. Exact proof, from the nature of things, cannot be made as to the facts at so remote "a time and, necessarily, liberal inferences must be drawn, from the scanty evidence, in favor of defendants, who have succeeded to the rights of Bass and whose possession has been undisturbed and unquestioned during all the intervening years.
The Statute of Limitations is one of repose, based upon the theory that the mists of time prevent the actual facts *293from appearing, and it is improbable that any one now living can state the facts as to the time when Bass entered into possession. They can be judged of from the condition of the farm in 1857, at the time the first witness describes it as occupied by Bass. The description of the premises at that time makes it certain that the clearing, the cultivation and the improvement of the property must have begun several years before 1857, and inferences may be liberally resorted to to prevent an apparent injustice where the State has been so remiss in asserting its rights and the defendants and their predecessors have been paying the plaintiff taxes and improving the property.
Manifestly Banner and his successors in title, including the defendants, were purchasers in good faith and for a valuable consideration, and the plaintiff’s prior unrecorded deed establishes no title as against them. As we have seen, it affirmatively appears that none of them had any notice of the plaintiff’s claim, and each claimed to be and understood that he was the absolute owner of the property. Section 241 of the former Real Property Law (Gen. Laws, chap. 46; Laws of 1896, chap. 547) first brought into the Recording Act (now Real Property Law, § 291) the provision making an unrecorded conveyance void as against subsequent purchasers with recorded deeds “ from the same vendor, his heirs or devisees.” There is a question whether the Legislature, which brought the quoted words into the statute, did not at the same session take them out by amending the Revised Statutes upon that subject. (1 R. S. 756, § 1, as amd. by Laws of 1896, chap. 572; Assets Realization Co. v. Clark, 205 N. Y. 105, 119.) That question, however, is quite immaterial, as the recording of Banner’s deed gave him and his successors title to the property which the plaintiff could not question.
We must, therefore, conclude that at the time the Forest Preserve Act was passed the State had no title to the property which it could enforce against Banner’s successors in title. If, however, it is considered that the State did have title at the time the Forest Preserve Act was passed in 1885, it held the title as a proprietor and not as a sovereign. The premises were held for sale, or other disposition, and were charged with no public trust. When we consider that *294the State never used the property, or claimed it, but that it was held adversely by others, it cannot be said that the passage of the Forest Preserve Act made this a public property so as to change the nature of the State’s holding from that of a proprietor into that of a sovereign. We cannot quarrel with the rule that a Statute of Limitations, in general terms, does not bar the State. The State, unless mentioned in the act,- is presumed to be excepted from its burden. (17 R. C. L. 689, § 37; People v. Gilbert, 18 Johns. 227, 229; People v. Herkimer, 4 Cow. 345.) The Code of Civil Procedure (§ 362) provides that “The People of the State” will not sue a person for or in relation to real estate after forty years from the time of the accruing of the claim, or unless it has received the rents and profits within that time. There is no place for presumption, as the section is an express limitation upon the People of the State. (See Fulton Light, H. & P. Co. v. State of New York, 200 N. Y. 400, 421, 422.) The statute is one of repose, to prevent overzealous public officials from harassing a person occupying land for forty years or more by the prosecution of stale claims. The limitation does not rest upon a presumption of a grant; it simply prevents the use of the court for the prosecution of such a claim. It does not purport to affect the title to property; it only makes the occupant immune from action by the State. The presumption of a grant arising from lapse of time does not assume that the grant was made at any particular time, but at some time during the occupancy. It is more natural to assume that it took place at about the time of the inception of the occupancy than at a later date. I favor reversal.
Judgment affirmed, with costs to the respondent.