This case is within the rule laid down in Churchill v. Onderdonk, (59 N. Y., 134). That was a proceeding pursuant to the Revised Statutes (2 R. S., 312, § 1), to compel the determination of claims to vacant lots in Brooklyn. This is a proceeding under the same statute prosecuted in the form of an action conformably to section 449 of the Code, to compel the determination iff claims to vacant lots in Yonkers. To entitle a party to the remedy here pursued, he must have been for three years in the actual possession of the property. In the case cited, that was interpreted to mean an actual occupation of the same, in other words a possession in *620fact, as contradistinguished from that constructive one which the legal title draws after it. The. correctness of that construction is apparent. The word actual ” in the statute is specially significant. It is plainly used in opposition to “ virtual ” or “ constructive,” and means an open visible occupancy. We think that was not shown in this case. It may be conceded that the plaintiff had made an entry upon the land, for the purpose of laying out and constructing streets upon it, and had exercised other occasional acts of ownership over it. But he never occupied it, and was'not, therefore, in actual possession of it. The defendants might have entered during the years 1871, 1872 and 1873, without disturbing his possession, and they could not have maintained ejectment against him upon the allegation that he actually occupied the land. The statute under consideration, and that relating to ejectment are intended to give correlative rights. The possession which entitles a party to institute a proceeding of this kind must be such as would enable the adverse party to bring ejectment founded on that fact alone, namely, an actual occupation. (2 R. S., 312, § 4.) If the premises are not actually occupied, then either party may maintain ejectment against the other, on proving that the defendant was exercising acts of ownership on the premises claimed, or claimed title thereto, or some interest therein at the commencement of the action. (Id.; Banyer v. Empie, 5 Hill, 48; Abeel v. Van Gelder, 36 N. Y., 513.) But neither can prosecute this proceeding without first taking possession of the land, and actually occupying it for three years, the sole object thereof being to quiet the title of a person in possession. (Gra. Pr., 849.) It is strictly a statutory proceeding, and those who resort to it must bring themselves within all the requirements of the statute. (Bailey v. Southwick, 6 Lans., 356-366; Austin v. Goodrich, 49 N. Y., 266.) The rule that a party once being in possession is presumed to continue in possession, cannot be applied where a statute requires proof of actual possession at the commencement of the action, and for three years immediately preceding that act. Such a presumption might suffice to establish a constructive possession, but cannot be received as a substitute for evidence of a fact so palpable and capable of direct proof, as that of an actual possession of land. In every point of view, therefore, we think there was a failure of proof on this point. It is possible that this *621objection may be overcome on a new trial. We will, therefore, call attention to other rulings of the court below, which we think are erroneous. That there was a valid'partition of the lands of Peter Nodine, the common source of title, was satisfactorily shown. Indeed the claims of all parties rest' upon the fact, that such partition was made. It is not often that better proof is produced of so remote a transaction resting in parol. Nor is there any reasonable ground for a presumption that William Kniffen had acquired the title to the share which his wife inherited in said lauds, divided or undivided, before or after said partition was made. The mere recital in a conveyance of adjoining land, made after the par-, tition, referring to the land in controversy as the portion of William Kniffen, affords no ground for presuming a grant to him. He had a freehold estate in the share allotted to his wife as tenant by the curtesy, and such share was not on that account improperly denominated, by a stranger, his portion.
The conveyance of the sheriff to Gates transferred only the life estate of William Kniffen in the parcel allotted to his wife. (2 R. S., 373, §§ 61, 62; 1 R. S., 739, § 143.) At common law, Gates would upon the death of Kniffen have become tenant by sufferance to the reversioners (1 Wash. R. P., cap. 12, § 1); but in this State it has been provided by statute that, “ every person having an estate of determinable upon any life or lives, who, after the determination such particular estate without the express consent of the party immediately entitled after such determination shall hold over and continue in possession of any lands, etc., shall be adjudged to be a trespasser, etc. (1 R. S., 749, § 7.) This statute has changed the rule of the common law on this subject. (Livingston v. Tanner, 14 N. Y., 64; Torrey v. Torrey, id 430 ; Reckhow v. Schanck, 43 id., 451.) No adverse possession, however, could be predicated of his holding over without proof of notice thereof to the reversioners. (Grout v. Townsend, 2 Hill, 554; 1 Wash. R. P. chap. 5, § 1.)
The conveyance by Gates to Davidson of the fee of the land and the entry by Davidson thereunder, was sufficient to lay the foundation of an adverse possession, but we think the evidence' failed to show a continuation of such adverse possession for the requisite period of twenty years. A period of twenty-four years, it is true, elapsed between the conveyance to Davidson and the commence *622ment of this action, yet during at least six years of that .period the land was not used for any purpose contemplated by the statute of limitations. It lay in common, and was to all appearance vacant. During that time the statute did not run. To bar the true owner the adverse possession must be kept up during the requisite period prescribed by the statute, by the usual cultivation or improvement, or by protecting the land by a substantial inclosure, or by using it for the supply of fuel or.of fencing timber for the purposes of husbandry, or tlie ordinary use of the occupant. (Code, § 83; Wash. R. P., bk. 3, chap. 2, § 7, sub. 21.) The evidence we think shows that neither of these conditions was complied with after the conveyance to Jerome in 1863.
Margaret Crawford is a daughter and heir of Mrs. Kniffen. She was married before the termination of the life estate vested in Gates, and her husband is still living. Although coverture is no longer a disability which prevents the running of the statute of limitations, the statute having been amended in that respect to conform to the changes made in the law by the acts for the protection of married women, yet that amendment does not affect Mrs. Crawford. (Laws 1860, chap. 90, § 7 ; Laws 1870, chap. 741.) The act of 1860 conferred upon married women the right to sue and be sued in all matters having relation to their separate property, and by that of 1870, section 88 of the Code, was amended by dropping coverture from the enumeration of disabilities therein. But neither of these provisions affect Mrs. Crawford. The act of 1860 is in terms limited in respect to property acquired by a married woman by descent to such as descended to her after the passage of the act, and the Code is also in terms limited to causes of action which have accrued since its passage. (Sec. 73.)
It is not necessary to decide whether Mrs. Crawford has had a right of entry since the adverse possession of Davidson began. It does not distinctly appear when she was married, except that her i-marriage occurred before the death of her father. He died in February, 1848 or 1849 ; and if it was in 1848, then Mrs. Crawford was married before the passage of the earliest act -for the protection of married women, namely, the act of April 7,1848. Consequently the right of entry belonged to her husband. The act of April 7, 1848, did not include property which a married woman took by *623descent, but, by an amendatory act passed April 11th, 1849, this defect was remedied. According to all the testimony, however, Mrs. Crawford was married before that act was passed. Whatever marital rights in the property in question her husband had acquired remained unaffected by the act of 1849. We need not define those rights, because, if Mrs. Crawford had a right of entry when the adverse possession of Davidson commenced, the disability of her coverture has continued ever since that time, and has not yet been removed. Even if the title of her co-tenants has been barred by the statute of limitations, her’s has not.
All the questions to which we have adverted were distinctly presented to the judge at the 'trial by the defendant’s requests for additional findings in respect to them. We think the judge erred in refusing to grant those requests.
The judgment must be reversed and a new trial granted, with costs to abide the event.
Present — Barnard, P. J., Gilbert and Dykman, JJ.Judgment reversed and new trial granted, costs to abide event.