[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 304 The verdict in this case having been taken by consent, subject to the opinion of the court upon the questions of law, we are to take it as conceded, that there is no disputed question of fact in the case.
The facts, therefore, upon which the questions of law arise, are to be found in the "statement of facts," settled by the General Term of the Superior Court, upon which the judgment appealed from proceeded.
By these, it appears, that, in 1825, the title to the premises in question was in one John L. Norton; that being established, his possession is to be presumed, for proof of title is primafacie sufficient, and casts upon him who resists a claim under that title the burden of proving adverse possession. Where a party is under the necessity of proving title, it is not enough to simply produce a deed; he must show possession in the grantor, or possession accompanying the deed; without this, he proves no title. But, when, as matter of law and fact, it is found or conceded that a party named has title, that is sufficient, — his possession is presumed; and the occupation by any other person is presumed to be in subordination to the legal title, unless it appear, that the premises have been held adversely to such legal title for twenty years before suit brought. (Code, § 81.)
It further appears, that the title shown to be in John L. Norton, in 1825, was deduced from him to the bankrupt Daniel B. Talmadge. It was not necessary to show, that he was in actual possession, for the same reason given in respect to Norton. The respondent attaches unwarranted importance to the fact, that the bankrupt was not shown to have been in possession. The plaintiff was not bound to show that. The onus was not on him. If it was material to the defendant, that the bankrupt was not in possession, the defendant must prove it. Although it is sometimes necessary to show some possession or exercise of acts of ownership *Page 305 importing possession, in order to establish title, yet, when it is once found or established that a party has title, he who relies upon a disseizin must prove it.
The same observation applies to the assignee in bankruptcy; and it is not stated nor proved, that, when the title became vested in him, there was any adverse possession.
The defendant's possession, if it had been continuous, did not commence until four years after the title was vested in the assignee; and there was not, therefore, at that time, any subsisting cause of action to which the limitation of two years contained in the bankrupt act (5 U.S. Stat. at Large, p. 466, § 8) could apply. There was no "adverse interest," and no "person claiming an adverse interest," touching any property of the bankrupt which was vested in such assignee.
He held this real estate, upon the facts stated, in full property, and, presumptively, in full possession, and it was wholly unnecessary to prove affirmatively any thing more.
Whether the assignee duly executed his trust in selling the property for a nominal consideration might be an interesting question, if creditors of the bankrupt had, in due season, called it in question, but the defendant has nothing to do with that inquiry. He is, upon the facts stated, either a mere tort feasor, intruding upon the premises four years after the title passed to the assignee, or he went into possession, and held for about eight years under the assignee, which is, perhaps, the legal presumption.
The cause of action, therefore, did not arise until several years after the decree in bankruptcy; and I fully agree with the views ascribed to Mr. Justice NELSON, In the matter of Conant, that the two years' limitation has no application to a cause of action which was never vested in the bankrupt, but arises out of a wrong done to the assignee himself, or to the property vested in him. This is, I think, the necessary construction of the statute, for there was no adverse interest to which it can apply; and, for wrongs done to the assignee, there is, as suggested by Judge NELSON, no reason for applying that limitation, when it concerns dealings with the assignee himself. The ground upon which four of the members *Page 306 of this court place the decision in Cleveland v. Boerman (24 N.Y. 613) is in harmony with this view.
But it is insisted, that, at the time of the execution and delivery of the deed by the assignee in bankruptcy to the plaintiff, the defendant was in adverse possession, and the deed to the plaintiff is void on that ground by our statute, which enacts, that every grant of land shall be 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. (1 R.S. 739.)
1. No such fact is found. The original possession of the defendant is in entire harmony with the title of the assignee in bankruptcy; mere possession in another is not enough to defeat a deed. The burden was upon the defendant to show, that the possession was adverse. It is not even found, that he claimed title. He may have been in under the assignee, or as a mere intruder, without claim or pretense of right.
So, as to his subsequent possession, "he came into possession under a lease to his wife." It is, at least, doubtful, whether this warrants any assumption, that this was adverse to the assignee; no claim of title to any one is shown.
2. But, without resting upon this, I am clearly of opinion, that our statute has no application to a judicial sale; and the sale by the assignee is of that nature. It was a sale by order of the court. (See 4 Kent's Com. 447; Tuttle v. Jackson, 6 Wend. 224; Truax v. Truax, 2 Barb. S.C. 156; Co. Litt. 214 a;Frizzle v. Veach, 1 Dana, 216; Violett v. Violett, 2 id. 325; Janett v. Tomlinson, 2 Watts Sergeant, 114; Allen v.Hoyt, Kirby, 221; Barney v. Cutler, 1 Root, 491.)
The other objections to the jurisdiction of the court in bankruptcy, and the power to appoint a general assignee, and to order a sale in the manner stated, do not arise on the statement of facts, nor do I think they are available to the defendant. The court had jurisdiction of the subject matter, and of the person of the bankrupt, and, if there was any defect or irregularity, it is to be impeached, if at all, by a direct proceeding, and cannot be availed of by this defendant as an impeachment of the title acquired thereby. *Page 307
I think the judgment must be reversed, and judgment ordered for the plaintiff, with costs.