#### Emily Fowler Ford, Appellant, *v.*August Belmont et al., Respondents.

One in actual possession of land for three years may maintain an action under the Code (§ 449) to compel the determination of claims thereto; and evidence of the possession is sufficient to compel the defendant to show his title.

But where the plaintiff in such an action shows 'only possession under an unfounded claim of title, evidence of actual possession and occupation by defendant prior to the entry by plaintiff is a sufficient defence.

(Argued April 19, 1877;

decided May 22, 1877).

Appeal from judgment of the General Term of the Superior Court of the city of New York affirming a judgment in favor of defendants, entered upon a decision of the court on trial at Special Term.

This action was brought under section 449 of the Code to determine the title to certain real estate situate in the city of New York. The facts as found by the court were in substance as follows:

In May, 1835, A. M. Bruen, one who was then seized and possessed of said premises, executed a certain instrument under seal, whereby he empowered one Matthew Saint Clair Clarke to compromise certain claims, and to sell certain lands including the premises in question, to enable him to carry out such compromise. A compromise of the claims mentioned in such agreement was effected by Clarke, whereby the claimants agreed to accept $200,000 in full satisfaction of such claims. In the year 1835, Clarke agreed with Robert Dyson and Dunbar S. Dyson, that the two latter should raise the sum so to be paid as such compromise, and that Clarke in consideration thereof would allow them oné-third interest in such agreement, and said Dysons raised said sum. In pursuance of such agreement, on the 7th of* July, 1835, by the assent of Clarke, the ,said Alexander M. Bruen conveyed the premises in question in fee simple to said Dunbar S. Dyson. About the time of the execution ,o,f the last men*568tioned deed, the Dysons and Clarke executed an instrument under seal whereby they declared the terms upon which said D. S. Dyson held the said premises, which were in substance, that after paying the said sum of $200,000 with interest, and a premium paid for raising the money, the remainder of the money or lots unsold were to be divided, in the proportion of two-thirds to Clarke and one-third to said Dysons. In July, 1842, said D. S. Dyson presented a petition in order to obtain his discharge as a bankrupt; wherein he alleged that a certain schedule thereto annexed contained an accurate inventory of his property, rights and credits of .every name and description, and the location and situation of each and 'every parcel and portion thereof. In such schedule is set down only one-third residuary interest in the premises conveyed, by said Alexander M. Bruen to said Dyson, and reference is made to a note at the end of the schedule. Such note stated that Matthew St. Clair Clarke, of Washington city, was entitled to a remaining two-thirds interest arising from any excess after satisfying the amount of mortgage on such property which had been allowed said Clarke in accounting. In August, 1846, the official assignee in bankruptcy executed a deed purporting to convey one third of the premises to one Gordon L. Ford, in fee simple. On the 25th October, 1847, the said Gordon L. Ford made a deed to John L. Stephens, purporting to convey all his right, title and interest in the property. On the 21st January, 1848, the said John L. Stephens conveyed to Francis Griffin, all his right, title and interest to and in the said premises. On November 1st, 1848, the said Francis Griffin leased the premises in question, to Isaac F. Snow and James S. Anderson for ten years, and thereafter made a deed which was recorded November 9, 1849, purporting to convey to August Belmont, defendant herein, five equal undivided twelfth parts of the said premises. For the purpose of a marriage settlement, the said August Belmont subsequently conveyed the said five twelfths to Jeremiah Larocque, and thereupon a deed was made between the said Jeremiah Larocque of the first part, August *569Belmont of the second part, Francis Griffin and John Home of the third part, and the intended wife of said August Belmont, of the fourth part, which deed purported to convey to the parties of the second and third parts, the said five twelfths interest in said premises. This deed was recorded November .9, 1849. By two deeds made and executed in 1851, the said Francis ' Griffin rcconveyed to John L. Stephens five twelfths of the premises. The said John L. Stephens died after having devised all his property to Benjamin Stephens. From 1852 down to November, 1858, Snow and Anderson, the lessees from Francis Griffin, were in the actual possession and occupation of the premises. About February, 1859, a partition deed was executed between the heirs of Benjamin Stephens, as owners of five twelfths, the trustees of Mrs. Belmont, as owners of five twelfths, and the devisee of Francis Griffin, as owner of two twelfths in said premises in possession of which they had thus been through their said lessees and, by said partition, the particular lots in controversy in this action were set apart to the 'trustees of Mrs. Belmont. From 1861 to 1865, the said lots in question were in the actual occupation of one Carman McNulty, who had charge of the premises on behalf of the trustees of Mrs. Belmont. Down to the time of the trial of this cause, the defendant August Belmont paid the taxes on the lots in question. In October, 1860, the same official assignee, pursuant to an order of the court, conveyed to the present plaintiff for a nominal sum all of said premises so conveyed to said D. S. Dyson by said Bruen. At the time of the commencement of the action, plaintiff was in the actual possession of said premises, and had been in such actual possession during the whole of the three years immediately preceding.

*John Townshend,*for the appellant.

Plaintiff being in possession and having such possession as entitled her to maintain the action, was not bound to prove any title. ( *Barnard*v. *Simms,*42 Barb., 304; *Hager*v. *Hager,*38 id., 96; Tyler on Eject., 725, 74.)

*570
      *William W. MacFarland*for the respondents.

Defendants having had undisturbed possession of the property for a long time prior to plaintiff’s intrusion were entitled to a judgment for the recovery of the possession of it. *(Smith*v. *Lorillard,*10 J. R., 338; *Jackson*v. *Livingston,*7 Cow., 636; *Jackson*v. *Hardee,*4 J. R., 202; *Jackson*v. *Bush,*10 id., 223; *Jackson*v. *Graham,*3 Cai., 188.)

Rapallo, J.

The plaintiff in her complaint sets forth her alleged source of title to' the two lots of land in controversy in this action. That is a deed from the general assignee in bankruptcy.

The facts found in the case show clearly that this deed conveyed nothing to the plaintiff, and that she has no title whatever to the land in dispute, or any share or interest therein. She had, nevertheless, been in actual possession for three years, and that was sufficient to entitle* her to maintain this proceeding, and compel the defendants to show their title.

They showed upon the trial that they and those under whom they claim, were in possession of the premises long before the plaintiff entered thereon. This was sufficient to overcome the mere possessory title shown by the plaintiff, and to entitle the defendants to recover the land.

The only point relied upon by the plaintiff in answer to this, prior possession of the defendants is, that it appears from the findings that the defendants had a title to one-third part or share of a tract of land, embracing the premises in dispute. The case docs not contain the evidence taken on the trial, and it does not appear on whose part this fact was proved. Neither does the case disclose what has become of the title to the other two-thirds, and there is nothing to show that they have not also become vested in the defendants by partition or otherwise. The fact is found that for a period of several years before the entry by the plaintiff under her unfounded claim, the premises had been in the actual possession and occupation of. the defendants through their agent, *571ancl such prior possession is a sufficient answer to the claim of an intruder. *(Smith*v. *Lorillard,*10 J. R., 356.) There is nothing- in the case which shows that the claim under which the defendants ivere in possession, was restricted to an undivided share.

The judgment should be affirmed.

All concur.

Judgment affirmed.