A question was raised upon the argument, in respect to the effect to be given to the decisions of the referee upon matters of fact. On the one side, it was claimed that such decisions, like those of a jury, or referees, in an action at law, should only be disturbed, when clearly against the weight of evidence, or in violation of law. On the other side, it is insisted that the report of the referee is to be considered as having the same effect as the report of a master or the decision of a vice chancellor, upon a reference of any matter for hearing and decision. So far as it relates to this case, the question is of no great importance; for I shall not have occasion, in the view I have taken of the questions involved, to differ essentially from the conclusions of the referee upon mere matters of evidence. I think, however, it is more in analogy with the principles which govern the practice in equity cases, to treat the decision of a referee, not like the verdict of a jury, conclusive upon questions of fact, unless palpable error is manifest; but, like the report of a master, or a decision of a vice chancellor, upon any matter referred ; where, upon exceptions, or appeal, all questions decided, of fact as well as of law, were the subject of review. In the absence of any settled practice in this respect, I should be inclined to follow this analogy.
Nor do I deem it necessary to determine, in this case, the effect of the decree of the vice chancellor, dismissing the bill filed by William J. Van Zandt to set aside the trust deed executed by Thomas Van Zandt to Daniel L. Van Antwerp. *99Irrespective of this question, and regarding the question of the validity of the deed as strictly res nova, I am inclined to think the deed should be established. It is evident that Thomas Van Zandt was a very simple, weak-minded man. Being without family, and having considerable property, it was not strange that his relatives should each make some exertions to secure to themselves what benefit they could from his estate. The most ready way to effect this end, would be to secure the possession of his person—a thing which otherwise, at least in his case, would not have been very desirable. Hence we find him alternately in the keeping of his sister, Mrs. Van Antwerp, and his brother, John Van Zandt. While living with his sister, the trust deed was obtained, which secured to her and her children the exclusive benefit of the property. While living with John, a judgment for an extravagant amount was recovered against him, upon an alledged indebtedness for board; upon which an execution was forthwith issued and the same property conveyed • by the deed of trust sold. The object of these proceedings can not be doubted. Each party was striving to gain an advantage over the other; and in the strife, there is some reason to believe that each made use of unjustifiable means to effect their object. I very much doubt whether Thomas Van Zandt, when he executed the deed of trust, understood what it really was, and, on the other hand, there is considerable reason to believe that there was something wrong about the judgment recovered against him. But there is not, in my opinion, sufficient evidence in the case, to warrant a decree pronouncing either the deed or the judgment void for fraud; at least not as between the parties to this suit. Had the question arisen between Thomas Van Zandt and either the grantee in the deed or the plaintiff in the judgment, other considerations might have been involved.
In the further examination of this case, therefore, I shall assume the validity, as between these parties, both of the deed to Daniel L. Van Antwerp, and the judgment recovered by John Van Zandt. We are thus brought to the question, first, as to the effect of the sheriff’s sale and conveyance of the premises to William J. Van Zandt, and then the effect of the sale to Pack*100ard, under the corporation assessment, and the “ re-purchase and redemption” by William J. Van Zandt from him.
The deed executed by Thomas Van Zandt being valid, the entire legal interest in the premises was vested in his grantee; and if he continued in possession afterwards, his possession was not that of an owner, but a tenant of his grantee. From the time he executed the deed until he surrendered the.possession to William J. Van Zandt, he must be regarded as holding the premises in subserviency to his grantee. Nothing short of an explicit disclaimer of such relation, and a notorious assertion of right in himself, would be sufficient to change the character of his possession, and render it adverse. (Jackson v. Burton, 1 Wend. 341. Zeller’s Lessee v. Eckert, 4 Howard’s Rep. S. C. U. S. 289.) It is not pretended that there was any such disavowal of Van Antwerp’s title, or assertion of an adverse right, by Thomas Van Zandt while he continued in possession. Nor do I think the purchase of his interest at the sheriff’s sale, by William J. Van Zandt, and the subsequent entry under such purchase, would, of itself, constitute such an adverse holding as to lay the foundation for the operation of the statute of limitations. It is true, that this is a question of fact, which, upon a trial at law, might properly be submitted to a jury ; but I am inclined to think that, in such a case, a jury should be instructed that before they could properly find an adverse possession they should be satisfied, from some legal evidence, that there was at least an intention to hold the possession in defiance of the title claimed under the trust deed. This evidence we have in the bill filed by William J. Van Zandt in 1828, to set aside the trust deed. He then, if not before, asserted his own absolute title to the premises. He then explicitly disclaimed holding under any title subordinate to that under which the plaintiffs now claim. From that time, at least, there can be no doubt of the adverse character of his possession. The statute of limitations then, if not before, began to operate. If, after that, those claiming under the deed to Van Antwerp had allowed the period limited by law to elapse, without asserting their title, such delay must have been held an absolute bar to any subsequent action. *101From the time, therefore, that Wm. J. Tan Zandt openly asserted his title to the premises, in hostility to the title claimed under the trust deed, having already acquired the possession under his purchase at the sheriff’s sale, whatever may have been the legal character of his possession before, it then became an adverse possession. No matter though he knew his title was bad. Being in actual possession, it needed only an adverse claim, however wrongful it may have been, and however well he may have known that it was unfounded, to render that possession adverse. It is the very office of the statute of limitations to mature a possession, in itself wrongful, if accompanied by even a pretence of title, into a legal right. (Humbert v. Trinity Church, 24 Wend. 587. Northrop v. Wright, 7 Hill, 476.) These considerations are suggested, not with a view to the application of the statutory bar to the plaintiff’s remedy, but that we may the better understand the relation of the parties to each other and the duty of William J. Tan Zandt to the plaintiff, if any he owed, in respect to outstanding charges and incumbrances.
Before considering the effect of the assessment sale, it maybe proper to notice the conveyance from Stephen L. Tan Antwerp to William J. Tan Zandt, of his right, title and interest in the premises; as it is supposed by the plaintiff’s counsel to have some bearing upon the relation in which the parties stood to each other, after that conveyance. I admit, to its fullest extent, the doctrine contained in the authorities cited by the plaintiff’s counsel, upon this branch of the case. Where two or more persons have a joint claim to property, the community of their interests creates a mutual obligation that neither shall do any thing to the prejudice of the other. An expenditure by one, upon the subject of their common interest, enures to the benefit of all; and, on the other hand, all are bound to contribute towards that expenditure. Neither will be permitted, without the consent of the others, to buy in an outstanding title, and appropriate the whole subject to himself, and thus undermine and oust his companion. “ This,” says Chancellor Kent, “ would be repugnant to a sense of refined and accurate justice. It *102would be immoral, because it would be against the reciprocal obligation to do nothing to the prejudice of each other’s equal claim, which the relationship of the parties created. Community of interest produces a community of duty, and there is no real difference, on the ground of policy and justice, whether one co-tenant buys up an outstanding incumbrance, or an adverse title, to disseize and expel his co-tenant.” (Van Horne v. Fonda, 5 John. Ch. 388.) “ It is a general principle,” says the same eminent jurist, in Holridge v. Gillespie, (2 Id. 30,) “ that if a mortgagee, executor, trustee, tenant for life, (fee. who have a limited interest, gets an advantage by being in possession, or 6 behind the back’ of the party interested in the subject, he shall not retain the same for his own benefit, but hold it in trust.’ But do the plaintiffs bring their case within this principle ? We have already seen that William J. Van Zandt openly and notoriously disavowed all community of interest with those who claimed under the trust deed. He asserted his own exclusive ownership of the property. Under these circumstances, it can hardly be inferred that when he took the release from Stephen L. Van Antwerp he intended to abandon his claim of absolute title, and to admit that he held in subordination to the title created by the trust deed. If he did not so intend, then he did not, by the mere act of taking that release, change the character of his claim. For, a party in possession of land, claiming it as his own, under color of title in fee, is permitted to quiet such title, by obtaining a conveyance of an adverse claim, without abandoning his previous claim of title. (Northrop v. Wright, above cited.) I cannot therefore regard the release executed by Stephen L. Van Antwerp as having any legitimate bearing upon the question under consideration.
What then was the effect of the assessment sale by the corporation of Albany to Packard, and the conveyance by assignment from Packard to William J. Van Zandt ? The bill alledges that Wm. J. Van Zandt having acquired the interest of Thomas Van Zandt in the premises by virtue of his sheriff’s deed, and being in possession as tenant for the life of Thomas Van Zandt, was bound in equity to protect the plaintiff’s estates in remain*103der and reversion, and that, disregarding this obligation, he had procured the premises to be sold to Packard for the assessment, and, when the time for redemption had expired, had taken a conveyance from Packard. It is insisted that the sale was in fact made by the corporation to Van Zandt; that his object was to cut off the plaintiffs’ rights, and that, as he was in possession and vested with the life estate of Thomas Van Zandt, the purchase by him was a violation of his duty to the plaintiffs, and is, therefore, fraudulent and void.
The answer alledges that William J. Van Zandt took possession of the premises, not as tenant for the life of Thomas Van Zandt, but claiming to hold in fee, and that it was known to the plaintiffs that he so claimed. It also states that Daniel L. Van Antwerp, and also the plaintiffs, knew of the assessment for widening Beaver-street, and of the sale by the corporation for the non-payment of that assessment, and never offered to redeem, or claimed any right to redeem. It further states that, believing he had a perfect title in fee, he had, since the conveyance of the premises to him by the sheriff, with the knowledge of Daniel L. Van Antwerp and the plaintiffs, and without their denying or questioning his title, made valuable improvements upon the premises, and had paid large assessments chargeable thereon; and besides this, had “paid over the sum of $200/or the re-purchase and redemption of the premises sold on the asfsessment for widening Beaver-street, mentioned in the bill.” It was insisted by the plaintiffs’ counsel, upon the argument, that this statement in the answer was to be regarded as an admission by William J. Van Zandt, that he had paid the amount of the assessment to Packard, not as a purchase of his title, but for the extinguishment of a charge upon the premises. It is true, that the pleader, in drawing the answer, seems chiefly to have relied upon the sheriff’s deed. Hence we find him insisting that “ the defendant ought not to be required by proof to substantiate the validity of the said judgment and sale, or of his title to the said premises, otherwise than by the said judgment, execution, sale and deed from the said sheriff.” Bull do not think it was intended to waive any rights the defendant had *104acquired under the conveyance from Packard. The bill had alledged the sale to Packard, and the transfer by Packard to the defendant. The answer, assuming these facts, and apparently with a view to show the defendant’s confidence in his own title, and the acquiescence of the plaintiffs in his ownership, states various expenditures made by the defendant on account of the premises, and then adds the payment of $200, for the purpose of re-acquiring the title which, by the assessment sale, had become vested in Packard, as “ mentioned in the complainants’ bill.” It was a re-purchase as well as a redemption. The money was paid for the purpose of re-vesting in himself, the title, which, as he alledged, he had first acquired at the sheriff’s sale. This, I think, the fair intendment of the pleader in the use of the terms “ re-purchase and redemption.”
It may also be observed, while referring to the pleadings, that the charges in the bill, in relation to the manner of procuring the assessment sale, are not answered at all. But, as the plaintiffs had waived an answer upon oath, the general traverse, at the conclusion, was sufficient to put these allegations in issue. And, as no proof was given by the plaintiffs in support of these allegations and charges, and the declaration of sale executed by the corporation to Packard, and the assignment by Packard to William J. Van Zandt, were produced by the defendants, it must be assumed that Packard purchased in good faith, and on his own account, and that Van Zandt also purchased of Packard in like good faith. The question then returns, how did this purchase affect the rights of the parties 1
The corporation assessment was an incumbrance upon the premises, superior to the rights of either party. In its legal effect, it may be compared to a mortgage executed by Thomas Van Zandt prior to the execution of the trust deed. The validity of the assessment, and the regularity of the proceedings, not being questioned, it can not, I think, be doubted, that Packard, after the period allowed for redemption had expired, acquired an indefeasible title to the premises, for the term specified in the declaration of sale. Had William J. Van Zandt the right to acquire that title, for his own exclusive benefit ? If he *105had not, it must be because he owed some duty to the plaintiffs in respect to that assessment, which would be violated by allowing him thus to avail himself of it, to fortify his title. Let it be conceded, for the present, that, while he was in possession, claiming adversely to all the world, he had, in fact, as the plaintiffs insist he had, an estate for the life of Thomas Van Zandt. As a tenant for life, he would have been bound to keep down the interest upon the incumbrance, out of the rents and profits, but he was not bound to extinguish the incumbrance itself. If he had chosen, rather than allow the premises to be sold, to pay off the incumbrance, such payment would have been an equitable charge upon the premises: In that case, however, he would not have been entitled to interest during the continuance of his life estate. (4 Kent’s Com. 74, 5th ed.) But he violated no duty, in allowing the premises to be sold. The sale having taken place, and the title having been perfected under the sale, he had the same right as any other person to purchase of the owner. Such purchase would enute to his exclusive benefit, or to the benefit of himself and those claiming the reversion, according to circumstances. If he acquired his possesssion in such a manner as to owe allegiance to the reversioners; he could not set up an outstanding title thus purchased in by him, to defeat their rights. A possessiori acquired in subserviency to their title, could not be defended, as against them, by asserting a new title subsequently acquired. The general principle is, that one in possession may purchase in an outstanding title for the purpose of strengthening his owm The only qualification of this rule, of which I am aware, is that to which I have already adverted, that the possession of the purchaser must not have been taken under circumstances which preclude him from disputing the title of the party claiming. (See Phelan and wife v. Kelly, 25 Wend. 389.) Thus, where one enters under a contract of purchase; or a license, or a lease; or as a tenant in common, he is held to be estopped from coritfoverting the title under which he entered: The qualificdtiori of the general principle stated, has its foundation id the law of estoppel, which will not allow a *106man to do what, in honesty and good conscience, he ought not to do.
But we'have already seen that William J. Van Zandt entered under circumstances which constituted his possession, in its very inception, an adverse possession. His claim, from the beginning, was hostile to that of the plaintiffs. He entered, not in subordination to their right, but in defiance of it. There was nothing in the circumstances of the case to impose upon him any obligation to protect the plaintiffs’ title, or create a fiduciary relation between them. What principle of law, then, what rule of justice is violated by allowing him to fortify his claim to the property by purchasing an outstanding title held by a stranger? That Packard could have enforced his title against the plaintiffs as well as against William J. Van Zandt, will not be denied. I have considered as well, and as maturely as I was able, the arguments of the very distinguished counsel who presented this case on behalf of the plaintiff, and I have been unable to discover any principle which would not allow William J. Van Zandt, first to acquire, and then to enforce and enjoy, the title of Packard to the same extent, as Packard himself, or any other purchaser, might ha\re enforced and enjoyed it. If I am right in this conclusion, it follows that the defendants have succeeded in establishing, not only an adverse claim, but an adverse title, which must prevail against the plaintiffs’ rights.
It is, perhaps, to be regretted that the disposition of so valuable a property should be determined by a legal advantage secured by one of the parties in acquiring the title perfected under an assessment sale, for a comparatively trifling amount. It is still more to be regretted, that the parties should not at the first have been contented with that equal division of the estate of their imbecile kinsman, which natural justice would have suggested. But instead of this, the parties seem to have been engaged in a protracted struggle, each to gain a preference over the other, in the division of this inheritance. And now, if the contest has resulted in the plaintiffs’ defeat, through the operation of the assessment sale, that result must be attributed, not to any fault in the law, but to their own neglect, in allowing an *107adverse title to be perfected against them, when they might, by the payment of the assessment before the sale, or the redemption of the property within the prescribed period afterwards, have protected the rights they had acquired under the trust deed.
The plaintiffs’ bill must be dismissed ; but under the peculiar circumstances of the case, to which 1 have already sufficiently adverted, I think it should be without costs, also without prejudice to the plaintiffs’ remedy at law.
Decree accordingly.