By the Court,
Bacon, J.There are three grounds put forth by the defendant in defense of this suit, neither of which seem to me to be tenable.
I. It is claimed that there was an adverse possession on the part of the defendant, of the premises in question in this suit, which of itself constitutes a perfect defense to the action; or if this does not per se defeat the plantiff’s title, the fact of such adverse possession existing at the time of the conveyance by letters patent from the state to Bernard Brady, the ancestor of the plaintiff, rendered that conveyance void.
Upon the question of fact whether the possession of the defendant was adverse, the conclusion of the referee, that the possession of the defendant was in subserviency to the title of the state, and was not at any time adverse, is fully sustained by the evidence. The defendant entered under a contract to purchase the premises as the representative of Seaton, the first purchaser, through several mesne assignments; he made some small payments, in 1832 and 1833; he endeavored to effect an arrangement to pay the balance, and frequently spoke of the claim and title of the state, and of himself as holding in subserviency to it. A claim to hold adversely under all these circumstances cannot be deemed to have been *537made in good faith, or with the slightest belief that he could found upon such claim a pretense to set not only the state, but all the world at defiance.
Such being the clear conclusion in regard to the fact of the alleged adverse possession, the proposition of law that the sale of the premises by the state to McNamara, and the subsequent patent to Brady, were null and void within the statute, which provides that every conveyance of land held at the time adversely to the grantor, shall be void, has no special importance. ■ If in fact the premises were not, at the time the patent was executed, so held, the statute does not, of course, apply to the case. But if we were to concede the adverse possession, the result would not follow that is claimed by the defendant. The statutory provision above alluded to has no application to conveyances made by the state as grantor, as was expressly held in the case of Jackson v. Gurmer, (2 Cowen’s Rep. 552.)
The reason which forbids such transfer of title by one individual to another, is to prevent champerty and maintenance, and the granting of pretended titles, to the stirring up of strife, litigation and oppression—a reason not applicable to the state when it parts with its domain, and therefore, as Oh. J. Savage says, in the case above cited, the reason failing, the rule fails, as to the state.
It may be added also, upon the point of adverse possession, that the defendant was twice put out of possession of the premises by process instituted by the state, both in 1847 and 1848. There has consequently been no continuous possession in the defendant, but the chain has been twice broken by legal process and under a paramount claim.
2. It is insisted that a legal presumption arises in this case, of payment by the defendant for the premises, arising from lapse of time. This proposition is sought to be established by, or rather inferred from, the principle which authorizes such an inference in the case of- a sealed instrument, from the fact that no payment has been claimed or made *538thereon for a period of twenty years. The effect of the rule is that of a statute of limitations, ancji it has usually been employed to defeat a recovery upon the instrument itself.
I know of no case in which it has been effectually interposed as an affirmative defense to an action of ejecment to recover the possession of land. If it is so interposed, the fact upon which it proceeds must be affirmatively proved. Such is substantially the principle established in the case of Lawrence v. Ball, (4 Kern. 477.) There the vendor had executed a written contract for the sale of the premises, stipulating for various payments. More than 20 years having elapsed, the vendor brought ejectment, treating the contract as forfeited for non-payment, and the court held that the presumption of payment arising from lapse of time was not sufficient to maintain the defendant’s equitable claim to the land, and that to establish such a defense, payment, in fact, of the purchase money by the defendant must be proved. The mere fact of non-payment gives no title to equitable relief, and consequently constitutes no defense to an action of ejectment by the party holding the legal title.
In this case it need only be said that there was no proof of payment by the defendant, but that the defendant conceded the fact that he had not made any payment within 20 years, and that his rights had been forfeited and lost by reason of such non-payment.
3. It was finally claimed by the defendant, on the trial, that it was not enough, on the part of the plaintiff, to produce the patent of the state conveying the premises to Bernard Brady, but that it was incumbent on her to show that the resale of the land was properly and fairly conducted, and that the necessary preliminary notices and advertisement were given and published; in other words, that the patent was not prima facie proof of the plaintiff’s title, but the regularity of all the prior proceedings must be shown. The cases cited by the defendant’s counsel to sustain this proposition are none of them cases of conveyances by the state of its own *539lands to purchasers thereof. They all arose under sales and conveyances made by the comptroller and other public officers, for lands which had been sold for taxes, and where the effect of the conveyance would be to subvert the title of the real and bona fide owner of the premises conveyed. The rule applicable to such a case, as stated by Judge Bronson, in Sharp v. Spier, (4 Hill, 86,) is that every statute authority in derogation of the common law to divest the title of one and transfer it to another, must be strictly pursued, or the title will not pass. Upon this principle it is that all the other cases proceed, which, as I have said, are all cases of deeds by the comptroller, or by a collector, or by the municipal authorities of a civil corporation, for lands which had been sold for non-payment of taxes, or assessments made thereon.
[Onondaga General Term, April 8, 1862.Mullim, Morgan and Bacon, Justices,]
It is obvious that this principle does not apply to a case where the state is granting and conveying its own lands to a purchaser thereof, as is conceded by the court in the case of Varick v. Tallman, (2 Barb. 115,) and where Judge Gridley quotes approvingly a decision in 1 J. J. Marsh. 447, to the effect that the presumption is that the public officers have done their duty in regard to the several acts required by them to be done in granting lands, and therefore surveys and patents should always be received as prima facie evidence of correctness. This doctrine is expressly held in Jackson v. Marsh, (6 Cowen, 281,) to wit, that a patent of lands by the state shall be presumed to have issued regularly, and if it be not void on its face cannot be avoided collaterally in a suit between individuals. If there is any allegation or pretense that it was issued by mistake, or upon a false suggestion, it is voidable only, and in such case can be only avoided by a direct proceeding to cancel or annul the patent.
I am accordingly of opinion that the judgment in this case is right, and should .be affirmed.
Judgment affirmed.