*22 By the Court,
Rosekrans, J.The referee states the description of the premises intended to be conveyed by the deed from the executors of Lefferts to Ten Eyck and by Ten Eyck to Beekman, to have been two hundred acres, more or less, in the right of "Walton, Kirby and Clopper, in lot ETo. 1 in the 24th allotment of the patent of Kayaderosseras. This description contains several particulars, and no lands could pass by the deed except such as corresponded with all the particulars. It was necessary that those claiming under these deeds should show that the lands claimed were in lot one, and in that part of the lot to which the right of Walton, Kirby and Clopper extended. If such right included more than two hundred acres, the grantees would have been authorized to have elected which two hundred acres in the tract they would take, and such election would have made the grants operative, although the description is so uncertain that, of itself, it would convey nothing. (See opinion of Beardsley, J., in Hathaway v. Power, 6 Hill, 459.) ETo evidence was given in the case as to what part of lot one was covered by the right of Walton, Kirby and Clopper. It appeared that Kirby alone claimed lot C in lot one, but the lands conveyed were not a part of those claimed by Kirby "alone. These deeds were therefore wholly ineffectual to establish the plaintiff’s title to the portion of lot C in lot one, upon which the trespasses complained of were committed. It was, however, unnecessary for the plaintiff to resort to the deed smentioned, for the purpose of sustaining his action.
It appeared that as early as 1819 John K. Beekman, under whom the plaintiff claims title, was in possession, by his tenant, Mrs. Turk,-of a portion of lot C, to whom in that year he leased one hundred acres, and that Mrs. Turk cleared up and cultivated under this lease eighteen acres near the middle of lot C and adjoining its west line, and that such possession continued until her death, in 1851. This. possession being under a claim of title by Beekman, which *23was evidenced by Ms executing the lease and demanding and receiving rent, was a good adverse possession, at least to the extent of the land cleared and cultivated by his tenant. In 1834 Beekman obtained the comptroller’s deed for the whole of lot 0, upon the sale of the lot for taxes, and the evidence shows that after that time he claimed to own not only the part cleared and cultivated by his tenant, Mrs. Turk, but also the residue of the lot which was uncleared. The comptroller’s deed, with actual possession of a part of the lot and claim of title to the whole, was a sufficient foundation for an adverse possession even though the comptroller had not authority to sell. (Blackwell on Tax Titles, 663 to 670.) This deed was fair upon its face. It contained no evidence of want of authority by the comptroller to execute it. As it purported to be executed under an authority, it gave color of title to the grantee, although the pretended authority recited upon its face did not in fact exist. The possession and claim of title of Beekman, and of those claiming under him, is presumed to have been in accordance with the title apparently derived from the comptroller’s deed; and as that deed did not show that it was illegal or void, the possession and claim under it are-presumed to have been in good faith, and therefore adverse to the title of the former owner, and if continued for the period of twenty years, ripened into a perfect title. The question then arises whether the findings of the referee show that possession and claim of title by Beekman, and those claiming under him by virtue of the comptroller’s deed, was continued for the period of twenty years prior to the committing the trespasses complained of. I think this fact is clearly deducible from the referee’s findings. Actual possession of a part of the lot with claim of title to the whole, the entry and claim being under a written instrument, is sufficient to constitute an adverse holding of the whole lot. Mrs. Turk’s occupation of that part of-lot 0, which she cleared, is found to have *24continued from 1834 to 1857. In 1847 the plaintiff, who' had taken a conveyance of the lot from the devisees of Beekman, contracted to sell the whole lot to Effner & Rockwell, and they entered under the contract and cut down and removed timber from the lot and erected a framed house upon it, and put Samuel Effner into possession of the house for the purpose of boarding their hands. In 1848, while Effner & Rockwell were thus in possession under the contract with the plaintiff, one Bingham took a deed of the lot from Mary S. R. Turner, a remote heir of one, of the thirteen original patentees of the Kayaderosseras. patent. From the evidence and findings of the referee her share was 1-195th of the lot. In 1843 Mrs. Turner took a deed from another remote heir of one of the patentees, apparently having an equal intérest with her, of all his interest in the patent, and the deed from Mrs. Turner to- Bingham- purported to convey the entire lot. In-1'849- Aletta Beekman and others, devisees of John K. Beekman,, commenced an action against Bingham for cutting timber upon the lot, and upon the trial of the action the plaintiffs were nonsuited,, on the ground that no evidence was given to show- the proceedings prior to the comptroller’s deed authorizing a sale of the lot for taxes. The referee finds that after this trial Effner & Rockwell abandoned the lot. But he does not find that he restored to the.plaintiff the possession of the framed house or the-land on, which it stood, On the contrary, it appears that th.eir servant, or tenant, Samuel Effner, still continued in possession- of that house, and that- Bingham subsequently, in 1849, hired him to remove-from the house,, and- that upon his removal-Bingham entered and put one Burrows into possession of it, as-, his tenant.. In December, 1851, Bingham conveyed the whole lot to Bates, who succeeded Burrows in the occupation of the framed house, and in 1852 Bates,leased the whole lot to the defendant, and the defendant leased the whole- lot to-Holden, who moved into *25the framed house, and in 1856, while Holden was in possession of that house, the, plaintiff leased the whole lot to Holden for five year’s. Holden remained in possession of the framed .house until the spring of 1860. In January, 1860, the plaintiff leased the whole lot to Harvey for one year, and in March, 1860, Holden moved out of the framed house and Harvey moved into and occupied it during the continuance of ihis lease.' In the spring of 1862, while Harvey was in possession of the framed house, the defendant, by the authority of Bates, cut down and carried away from the uninclosed part of the lot six standing trees, for which act this action is brought.
How it is apparent, from these facts, that Beekman and those claiming under him have been in the actual possession of lot C, claiming title to the whole lot under the comptroller’s deed, and so constructively in possession of the whole lot from the date of that deed down to the time of the committing of the trespass complained of in 1862, a period of 28 years. Until 1851 they were in actual possession of the land cleared by Mrs. Turk, by her as their tenant. The possession of Effner & Bockwell, under their contract of purchase, was the possession of Beekman and his devisees. They were quasi tenants of the plaintiff. The possession of the framed house by Samuel Effner, the servant or tenant of Effner & Bockwell, was the possession of the plaintiff, and when Bingham, in 1849, hired Samuel Effner to leave the house, and entered himself and put Burrows in as his tenant, Bingham and Burrows’ possession of that house was that of the plaintiff, and Bates and Holden and the defendant, all of whom claimed under Bingham, stood in precisely the same relation to the plaintiff, as to the framed house. They were all in possession under the plaintiff’s title, and were estopped to deny his title or to set up an outstanding title in themselves or any other person. The learned referee concedes that Samuel Effner was in possession of the framed house as *26servant or tenant of Effner & Rockwell, but he states that he does not perceive how that fact, and the circumstance of Bingham’s hiring him to leave the house, and Bingham’s entry into the possession upon Effner’s quitting the house, constituted Bingham- a tenant of the plaintiff, or an occupant under him. This was the radical error of the referee.
The case is analogous to-that of Jackson ex dem. Livingston v. Walker, (7 Cowen, 637.) There the lessee of the plaintiff had contracted to sell the premises in question to one Storm, and Storm had entered under the contract. Storm had removed from this state and resided in Ohio, having left his wife and family in possession of the premises. One Garnsey, who claimed title to the premises, hired Storm’s wife to quit the premises, and paid three dollars to one Covill, who came into possession of part of the premises under Mrs. Storm, for a surrender of his part. Garnsey entered into "possession upon Mrs. Storm’s and Covill’s leaving, and put the defendant in possession. It was held in that case that Storm could not set up title against his vendor, under whom he entered, and that a claim of title which could not be.set up by a person while in possession, cannot be set up by another person who comes into possession under him. And in reference to the manner in which Garnsey acquired the possession, and the effect of it, Woodworth, J., delivering the opinion of the court, speaks thus: “ Here Garnsey purchased the possession of Mrs. Storm. If paying her for that possession, inducing her to quit, and then entering himself, is not an entry under the person who contracted with Livingston, or those representing the purchaser from Livingston, I am at a loss to determine what constitutes an entry under another.” And again: “If Garnsey did not come in under Storm, or those who represented him, I ask how did he obtain possession ? The premises were not vacant. The entry was not by force. The lot was *27in the actual occupation of Storm’s family. Did they abandon without a compensation, or concert with Garnsey? The contrary appears. He held out inducements which were successful. The actual possession was worth contending for, in a case where the title was involved in difficulty. * But if the title was perfect, much was gained by immediate possession. That was the object sought after, paid for and obtained. After it was obtained, to say nothing was acquired under Storm is to my mind an absurdity. The plaintiff was entitled to the benefit of Storm’s possession thus acquired by the defendant. It is alike the dictate of justice as of law that the defendant restore it before he can be permitted to show title in himself, or an outstanding title in another.”
The remarks are peculiarly applicable to -the possession by Bingham, and those claiming under him, of the house upon lot 0, in this ease. All the occupants, from Effner to Holden, derived their possession mediately or immediately from Beekman, and he and his successors were bound, in justice and in law, to restore their possession to the plaintiff", under whom they held, and who was in the possession of the framed house on the lot. Holden was bound to restore the possession of the framed house to the plaintiff. He was quasi tenant of the plaintiff, and could not set up title in another. It was therefore lawful for him to take, and for the plaintiff to give, a lease of the lot while he held possession under the lease from the defendant. Eeither Bingham nor any other party claiming under him could set up title against the plaintiff, if they had any, and the case shows that none of thefn had the shadow of title.. The deed to Bingham having been executed while the lot was held adversely by Effner & Rockwell under the plaintiff* the statute annulled that deed and struck it out of existence. The attornment of Holden, or his surrender of possession when he took a *28lease of the lot from the plaintiff, was not to a stranger, but to the party under whom he held, and as to whom, until such possession was surrendered, neither Holden nor the defendant could set up title in another. They claimed, of necessity, a part of the lot at least, to wit, the framed house, under the plaintiff and could claim under no other. A continued protestation that they did not claim under the plaintiff would have been of no force. Thus the plaintiff is shown to have been in the actual occupation of a part of the premises covered by the comptroller’s deed, from 1834 down to the time of the .committing of the trespasses complained of.
■ I am aware that it appears that Bingham erected a log house upon the lot, and claimed a portion of the land which was actually occupied by him. and those claiming under him, the possession of which part of the lot was not acquired by the purchase from Samuel Effner. But the possession of these parts óf the lot could not affect the plaintiff’s constructive possession of the unoccupied parts of the lot. Where a valid constructive possession of an entire lot is acquired by entry under claim of title founded upon a written instrument, and the actual occupation of a part, it cannot be defeated by a subsequent entry on the same lot by another, who makes an improvement' on a part and obtains' title to the whole lot. The effect of such subsequent entry would be to give the person so. entering a possession of the part actually occupied and improved, but no further. A constructive possession of the unimproved part of the lot would remain in him who made the, first entry under claim and color of title, and improved in part. This was held in the case of Jackson v. Vermilyea, (6 Cowen, 677, 680.)
The place where the trespasses complained of in this case were . committed was uninclosed and unimproved. Ho one had the actual' possession of. it. The plaintiff *29alone had the constructive possession of it. It does not appear that Beekman, or any one claiming under him, ever renounced the claim of title to the whole lot after the comptroller’s deed was executed.
I have thus far considered the case as though it was necessary that the comptroller’s deed should have been accompanied by an adverse holding under it for twenty years, in order to entitle the plaintiff to recover, or that he should have proved the existence of the facts recited in it, giving authority to the comptroller to make the sale in case the grantee’s possession was short of twenty years. This latter proof was necessary when the ease of Beekman v. Bigham was decided, (1 Seld. 366.) The learned referee states, in his opinion, that the same objections to the title under the comptroller’s deed still exist, and it is evident that he regards the preliminary proof as still necessary in order to give effect to such deed. In this he is mistaken. The act of 1850, (page 657, chap. 298; § 83,) referred to in the opinion of the court in Beekman v. Finlay, made the deed of the comptroller, of lands sold by him for taxes, thereafter executed, presumptive evidence that the sale and all proceedings prior thereto, from and including the assessment of the lands, and all notices required by law to be given previous to the expiration of the two years allowed to redeem, were regular. Chapter 183 of the laws of 1850 declared the same rule applicable to deeds of the comptroller executed before or after the passage of that act, except in case where the grantee, or those claiming under him, should refuse to release to the owner or occupant of the land upon being tendered the amount paid at tax sale, with interest at ten per .cent, and the costs of suit to recover the lands. It is unnecessary to decide whether this last act was repealed by section 114 of the first act cited, as it was expressly repealed, by section 92 of chapter 427 of the laws of 1855. (Laws of *301855, p. 799.) But section 65 of the act of 1855 made comptrollers’ deeds for lands sold for taxes, executed after the passage of that act, presumptive evidence that the sale and all proceedings prior thereto, from and including the assessment of the land, and all notices required by law to be given previous to the expiration of the two years allowed to redeem, were regular. This section was amended in 1860, (Laws of 1860, chap. 209, p. 352,) by adding thereto, as follows: “But,where the person or persons claiming title under such conveyance, or the grantees or assignees of such persons, shall be in possession of the land described therein, either by himself or themselves, or his or their grantees, assignees, agents, tenants or servants, then such conveyance shall be presumptive evidence of the facts above stated, whatever may he the date 'of such conveyance.” This amended section, I think, should be construed as including not only the .case of an actual possession of the whole lot covered by the deed, but the constructive possession of the whole, when there is actual possession of a part of the land covered by the deed, with claim of title to the whole. G-iving the act this construction, it is clear that the title of the plaintiff was perfect under the comptroller’s deed, without proof of any other fact than that he was in possession of a part of the lot C, under the deed claiming title to the whole. This proof he gave, as I have already shown, from the findings of the referee. The plaintiff thus showed title to the locus in quo. The alleged trespass was committed as far back as 1834. There being no evidence to affect the presumption mentioned in the statute, there was no adverse title. The assessors may not have known of any subdivision of lot 0, and if so, their assessment was correct. (1 R. S. 5th ed. 910, § 11. sub. 2.) The statute declares the deed presumptive evidence of the regularity of the assessment.
The plaintiff should have had judgment in his favor, upon the facts found by the referee.
*31[Clinton General Term, July 11, 1865.The judgment for the defendant should be reversed, and a new trial ordered, with costs to abide the event, and the reference discharged.
James, Bockes and Rosekrans, Justices.]