#### Josephine F. Clason, Plaintiff, *v.*Thomas E. Stewart, as Administrator with the Will Annexed of Elizabeth Carter, Deceased, Defendant.

(Supreme Court, New York Special Term,

March, 1898.)

Action to quiet title — Estoppel by acquiescence — Possession by tenants.

In an action, brought under section 1638 of the Code of Civil Procedure,- by one claiming as devisee of the fee, to quiet the title to a lot in the city of New York, it appeared that the defendant was the administrator with the will .annexed of Elizabeth Garter. Under an irregular tax sale, had in 1859, Mrs. Carter became, in 186.1, entitled to a tax lease for 500 years. Proof as to possession was meagre from 1861 to 1872, when Mrs. Carter leased the premises for twenty-one years to persons whose assignee took possession in 1875. While an action brought against the tenant in possession by Mrs. Carter was pending, and ¡after 1884, she died leaving a will by which she appointed the plaintiff and another executors. They qualified and acted. In 1886 the plaintiff first learned of her rights and brought 'an action against the same tenant to recover the premises, bn 1892 the plaintiff succeeded in her action and has since remained in possession by her tenants. In that action she made no mention of the tax lease Of Mrs. *178Carter and, for this act of hostility to the estate' of Mrs. Carter, the plaintiff was removed as executor, and the defendant was appointed administrator, with the will annexed.

Held, .that the. plaintiff was not estopped from maintaining the action by her acquiescence in former years, nor by her assumption of the duties of executor of Mrs. Carter and that, at the most, her rights were merely suspended during her executorship. That, under the provisions ¡of section 1638 of the Code of Civil Procedure, as amended in 1891, the action was maintainable by a person merely in constructive possession by tenants.

Action to compel the determination of a claim to real property.

George W. Stephens, for plaintiff.

E. H. Benn, for defendant.

Russell, J.

This action is brought to quiet the title to the lot Bo. 42 Sheriff street, in the city of Bew York, claimed by the plaintiff in fee. Code Civ. Pro., §§ 1.638, 1639. The plaintiff’s father was the owner and by bis devise and the death of her brother she became seized in fee-simple, now embarrassed only by the claim of the defendant as representative of the interests' of Elizabeth Carter, deceased. ■

Mrs. Carter’s interest was derived from a sale made by the city of Bew York for taxes in 1859. on which a lease was given for the term of 500 years to Bobert Bruce, who,assigned his certificate of sale to Mrs. Carter, to whom the lease was executed and delivered on the 28th of October, 1861.

It is very evident that some of the initial proceedings, as well as those subsequent to the sale for taxes, were defective; and the regularity of the tax title is not seriously contended for by the defendant’s counsel. Bor does he claim that the statute making the certificate conclusive proof of the regularity of the sale applies to render valid defects occurring before or subsequent to the sale. But the defendant’s counsel strenuously urges that acquiescence of Miss Clason for many years has produced an estoppel which prevents her now from asserting her actual title.

The proof is meagre as to possession from 1861 to 1872, but on the 13th day of that year Mrs. Carter leased the premises to John Baldwin for twenty-one years from May.-1st. He assigned the lease to Julia Levy and Bose Baldwin who, in January, 1875, as*179signed the lease to John R. Baldwin, who took possession and agreed to pay the rent. In 1884, George R. Baldwin, the purchaser of the last-named lease, died, leaving Elizabeth S. Baldwin, executrix. An action was begun by Mrs. Carter against this executrix for rent, which was defended, and, pending that action, Mrs. Carter died, leaving a will appointing the plaintiff, Miss Clason, and William H. Jacob executors. They took upon them the duties of their trust, stepped into Mrs. Carter’s place in the suit against Mrs. Baldwin, and obtained a citation from a Surrogate compelling her to account.

About the year 1886, Miss Clason, presumably, became aware of her rights on account of the defective character of the tax sale proceedings, and brought an action against Baldwin, to recover possession, which was awarded to her in June, 1892, she then taking actual possession and since continuing in possession through her tenants. On the trial of that action, though one of the executors of Mrs. Carter, she made no allusion to the tax lease held by the estate of Mrs. Carter, and for this act of hostility to the interest of that estate, she and her coexecutor were removed and the defendant, a creditor of Mrs. Carter’s estate, was appointed administrator with the will annexed.

Miss Olason’s recognition, in the performance of her duties as executrix, of the interest of Mrs. Carter, and failure to make any objection to her title for years before, are now claimed to consti- . tute an estoppel against her, notwithstanding that she seems to have asserted her claim as soon as information came to her of the defects in the tax title. The well-known rule that a person cannot stand hy and see another take title, whereby great loss would occur if the title were invalid, and thereafter assert her own concealed title to produce that very loss, is urged by the counsel for the defendant to- defeat the otherwise legal title of the plaintiff.

Such is not the present case, however. Miss Clason received none of the benefits derived from the purchase of the certificate of sale by Mrs. Carter; her action or silence had no apparent effect to induce Mrs. Carter’s purchase; the proceedings of the city were *in invitum,*or a virtual seizure of property to pay taxes, which the plaintiff might at any time resist when knowledge came to her that defects existed, unless a defective title had ripened by limitation into a legal one. °

ETor did her acts as executrix estop her except concurrently with her tenure as executrix. While acting as executrix, it was her duty *180to prosecute all remedies pending for the benefit of the estate, especially .where the tenant could not dispute the] title of the landlord; so that Miss Olason’s title .was no defense'in that action, and also where the ¡executrix acted in ignorance of her own rights. Her paramount duty during her trusteeship was to the estate she. represented, as was decided in a collateral proceeding with refer-, ence to this very property. Matter of Jacob, 5 App. Div. 508.

•Released or removed from this duty, her own legal rights sprang into being, unless by their enforcement the estate was deprived of lights which it would not have lost but for her action as trustee. Collins v. Hydorn, 135 N. Y. 320.

There is no right which the estate of Mrs. Carter had in the property in question, but. that the defendant here might assert, unclouded by any act of the plaintiff,- Miss Clason during her tenure as executrix. There can be no estoppel of the plaintiff from here asserting her actual, honest, ownership of the premises in question.

The.right to maintain this action is given, by section 1638 of the Code of Civil Procedure, to a person who has been for one year in possession of real property or any undivided, interest therein, claiming an estate in it not less than ¡a ten-year term. By the amendment of 1891 the word “ actual ” was'eliminated before the word “ possession,” showing that a constructive possession, as through tenants, is sufficient. The possession of the tenant is only a personal interest; underlying, it is the seisin ¡of the plaintiff as the freehold owner. Her action will lie, therefore, although the property is physically possessed by her tenants.

Judgment is directed for the plaintiff, adjudging that she is the owner in fee of the premises, and barring and foreclosing the defendant from all right, title or interest therein, with costs against the defendant. . -

Ordered accordingly.