The source of title, the lis pendens in the foreclosure suit, filed January 17, 1872, the decree and sale thereunder, and the mesne conveyances, vested the plaintiff with the fee of the property, commencing at a point 595 feet west of Third avenue and extending westerly therefrom a distance of twenty-five feet, which includes the disputed strip.
In ejectment, if the title of a party from whom the plaintiff’s title is deduced be admitted or established, it is not necessary to prove actual possession in himself or in any of the intermediate grantees from whom he derives title; possession will be presumed to follow; and the burden of showing that the plaintiff was not in possession, if the defendant so claims, is upon the latter (Stevens v. Houser, 39 N. Y. 302 ; Dunham v. Townshend, 118 Id. 281, 287 ; Clason v. Baldwin, 13 N. Y. Supp. 681). In the absence of adverse occupation being shown, possession follows the legal title (Wood v. Squires, 1 Hun, 481). Section 368 of the Code provides that “in an action to recover real property, or the possession thereof, the person who establishes a legal title to the premises is presumed to have been possessed thereof within the time .required by law; and the occupation of the premises by another person is deemed to have been under and in subordination of the legal title, unless the premises have been held and possessed adversely to the legal title, for twenty years before the commencement of the action.”
Possession is always presumed to be in subordination to the true title, and one who claims to have acquired title by adverse possession must show that he or his predecessors in. interest held the land in hostility to the true owner claiming the title thereto (Doherty v. Matsell, 119 N. Y. 646) ; and where, in an action of ejectment, the plaintiff establishes title by proper and sufficient conveyance and possession prior to the entry by defendant, and that entry is not attempted to be justified by any claim of right, the burden of establishing a better title than
The deed to the plaintiff is not affected by the statute (1 R. S. 739, § 147), which provides that “ Every grant of .lands shall be absolutely void if, at the time of the delivery thereof, such lands shall be in the actual possession of a person claiming under a title adverse to that of the grantor,” for it does not apply to a deed conveying a par-eel of land, the greater part of which is in the grantor’s possession, but where, by reason of a disputed boundary line, a small part of it is not in his actual possession at the time of the delivery of the deed (Danziger v. Boyd, 120 N. Y. 628 ; Allen v. Welch, 18 Hun, 226). To render a deed void under this section, it must appear that at the time of its delivery the premises were in the actual possession of some one claiming adversely; a constructive possession isnot enough (Dawley v. Brown, 79 N. Y. 390). The possession under this statute' differs from the possession .required by the statute of limitations. Under the latter
It follows that the plaintiff is entitled to judgment for possession of the property claimed, with nominal damages, which in this instance sufficiently comprehend “ the rents and profits ” recoverable under section 1497 of the Code.