§ 260. Effect of grant or mortgage of real property adversely possessed. A grant of real property is absolutely void, unless the same shall be made to the people of the state of New York, if at the time of the delivery thereof, such property is in the actual possession of a person claiming under a title adverse to that of the grantor; but such possession does not prevent the mortgaging of such property, and such mortgage, if duly recorded, binds the property from the time the possession thereof is recovered by the mortgagor or his representatives, and has preference over any judgment or other instrument, subsequent to the recording thereof; and if there are two or more such mortgages, they severally have preference according to the time of recording thereof, respectively. As amended by chapter 481, Laws of 1909: Formerly section 225, Real Property Law of 1896, chapter XLVI, General Laws: § 225. Effect of grant or mortgage of real property adversely possessed.-A grant of real property is absolutely void, if at the time of the delivery thereof, such property is in the actual possession of a person claiming under a title adverse to that of the grantor; but such possession does not prevent the mortgaging of such property, and such mortgage, if duly recorded, binds the property from the time the possession thereof is recovered by the mortgagor or his representatives, and has preference over any judgment or other instrument, subsequent to the recording thereof; and if there are two or more such mortgages, they severally have preference according to the time of recording thereof, respectively.56 Section 225 was formerly 1 Revised Statutes, 739, sections 147, 148: § 147. 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.57 $148. But every person having a just title to lands, of which there shall be an adverse possession, may execute a mortgage on such lands; and such mortgage, if duly recorded, shall bind the lands from the time the possession thereof shall be recovered, by the mortgagor or his representatives. And every such mortgage shall have preference over any judgment or other instrument, subsequent to the recording thereof; and if there be two or more such mortgages, they shall severally have preference according to the time of recording the same respectively.58 56 Repealed by Real Prop. Law of 1909, 460, art. 14, chap. 50, Consolidated Laws. 57 Repealed, chap. 547, Laws of 58 Repealed, chap. 547, Laws of 1896. 60 Origin of this Enactment. The origin of this section is to be found in ancient statutes. It is professedly taken from the revision of 1813,59 which in turn revised and consolidated the earlier revision, by Messrs. Jones and Varick, of the English statutes in force in New York prior to independence. By the common law, a conveyance to a third person of lands held adversely at the time was void as an act of maintenance.61 The original statute (32 Hen. VIII, chap. 9) prohibited the sale of any right or title to hereditaments, unless the seller, or his ancestor, or those by whom he claimed, had been in possession of the same, etc., etc., for one year next before the sale.62 The Revised Statutes omitted the exception in regard to one year's possession.63 64 Conveyance of Lands adversely Held Void, when. A conveyance of lands adversely held is void as against the possessor, even though the title under which the possessor holds may be bad. But in respect to the rest of the world, such a conveyance is prima facie operative and passes title from grantor to grantee.65 This section applies to estates not of freehold as well as to estates of freehold and an assignment of a lease for lives where the lands are adversely possessed gives no title.66 This Section for the Benefit of Claimants. The statute declaring the deed void is for the benefit of the claimant, and he may renounce the benefit of it.67 Is this Section Applicable to Conveyances by Executor under Power? Whether this section is applicable to a conveyance by an executor 59 Revisers' note to IR. S. 739, 147; 1 R. L. 173. 60 2 Greenl. 38; 1 K. & R. 343; 2 J. & V. 208; supra, pp. 68, 87, 116, 804. 61 Co. Litt. 214a; Plowden, 88; Crary v. Goodman, 22 N. Y. 170, 176. 62 See a very valuable disquisition on the English Act, its effect and scope, 19 Harv. Law Rev. 267 seq. 63 Revisers' note to I R. S. 739, $147; Lalor, Real Prop. in N. Y. 253. Jackson v. Todd, 2 Caines, 183; Roseboom v. Van Vechten, 5 Den. 414; Livingston v. Proseus, 2 Hill, 526; Poor v. Horton, 15 Barb. 485: Howard V. Howard, 17 id. 663; Jackson v. Brinkerhoff, 3 Johns. 65 Poor v. Horton, 15 Barb. 485; Mosher v. Yost, 33 Barb. 277. 67 Keneda v. Gardner, 4 Hill, 469; Cameron v. Irvin, 5 id. 272, 279. acting under a power of sale given by a will, where the property is held adversely, is in doubt.68 Section does not Apply to Assignees in Bankruptcy. This provision does not apply to a deed from an assignee in bankruptcy, made in pursuance of an order of the bankruptcy court. 69 Section does not Apply to Disputed Boundaries. This statute does not invalidate a grant where grantor is possessed of the greater part of the lands conveyed, but by reason of a disputed boundary is kept out of part of the land thus conveyed,70 or out of appurtenances thereto.71 Section does not Apply to Widow's Title to Dower. This section does not apply to assignments of widow's title to dower before admeasurement, although she is out of possession and the heir holds adversely to her.72 Vendees. Nor does this section apply to vendees in possession under contract of purchase.73 Actual Possession under Adverse Title. To make the possession of land adverse, so as to avoid a deed thereof under this statute against champerty, such possession must be under claim of some specific title, or else under some judgment, decree or executed process of some court.74 68 Bullard v. Bicknell, 26 App. Div. 319. 69 Coleman v. Manhattan Beach Imp. Co., 94 N. Y. 229; Knapp v. Burton, 7 N. Y. Civ. Proc. Rep. 448; cf. Christie v. Gage, 71 N. Y. 189. 70 Northport R. E. & I. Co. v. Hendrickson, 139 N. Y. 440; Danziger v. Boyd, 120 id. €28, and cases there cited; Thompson v. Burhans, 79 id. 93; Code Civ. Proc., § 370; cf. Hallas v. Bell, 53 Barb. 247; Archibald v. N. Y. Cent. R. R. Co., I App. Div. 251. 71 Corning v. Troy Iron & Nail Factory, 40 N. Y. 191; 39 Barb. 311; Voight v. Meyer, 42 App. Div. 350. 72 Tompkins v. Fonda, 4 Paige, 448. 73 Titcomb v. Fonda, J. & G. R. R. Co., 38 Misc. Rep. 630. 74 Code Civ. Proc., § 370; and see tit. 1 of chap. 4. Code Civ. Proc. gen erally; Crary v. Goodman, 22 N. Y. 170; Stevens v. Hauser, 39 id. 302; Higinbottom v. Stoddard, 72 id. 94; Christie v. Gage, 71 id. 189, 192; In Matter of Dept. of Parks, 73 id. 560; Danziger v. Boyd, 120 id. 628; Kneller v. Lang, 137 id. 589; Arents v. Long Island R. R. Co., 156 id. 1; Moody v. Moody, 16 Hun, 189; Fish v. Fish, 39 Barb. 513; Hallas v. Bell, 53 id. 247; Nash v. Kemp, 12 Hun, 592; Fortmann v. Wheeler, 84 id. 278; Jones v. Wright, 85 id. 35; Church v. Schoonmaker, 115 N. Y. 570, 573; American Bank Note Co. v. N. Y. El. R. R. Co., 129 id. 252, 263; Finn v. Lally, 1 App. Div. 411, 415; Biglow v. Biglow, 39 id. 103; Willey v. Greenfield, 64 id. 220; Knapp v. Burton, 7 N. Y. Civ. Proc. Rep. 448; cf. Broiestedt v. South Side R. R. Co. of L. I., 55 N. Y. 220. Title Adverse to Grantor. In order to avoid a conveyance under this section, the title of the actual possessor, if bona fide, may be derivative from a mere occupant or a claimant,75 provided it be hostile in its inception and not subservient to a higher title, and be a written instrument in due form.77 76 Actual Possession Requisite. To avoid a deed for champerty actual, not constructive, adverse possession in another is required.78 The presumption is that possession is subordinate to a legal title, and a single statement by a possessor, that he claims no title, fastens a character upon his possession .which makes it unavailable for the establishment of a right by adverse possession.80 Adverse possession cannot be established under a tax lease.81 Conveyance by Reversioners or Remaindermen. Where tenant for life conveys a fee, the possession thereunder is not adverse during the life of such life tenant, and a conveyance by reversioner or remainderman is not void under this section.82 Section does not Apply to Conveyances from the State. The objection, that a conveyance is void because the grantor is out of possession, does not apply to a patent or deed of land from The People of the State.83 75 § 369, Code Civ. Proc.; Jackson v. Elston, 12 Johns. 452; Jackson v. Foster, id. 488; Bradstreet v. Clarke, 12 Wend. 602, 674; Briggs v. Prosser, 14 id. 227; Jackson v. Woodruf, I Cow. 276, 286; Clapp v. Bromagham, 9 id. 530; Livingston v. The Peru Iron Co., 9 Wend. 511; Vrooman v. Shephard, 14 Barb. 441; City of La Crosse v. Cameron, 40 Fed. 264; Farrar v. Bernheim, 74 id. 435; cf. Bissing v. Smith, 85 Hun, 564. 76 Jackson v. Brainard, 5 Cow. 74; Jackson V. Hill, 5 Wend. 532; Church v. Wright, 4 App. Div. 312; Church v. Shultes, id. 378. 77 Arents v. Long Island R. R. Co., 156 N. Y. 1, 7. 78 Dawley v. Brown, 79 N. Y. 390; Archibald v. N. Y. C. & H. R. R. R. Co., 157 id. 574; Clark v. Davis, 28 'bb. N. C. 135, 137. 79 De Lancey v. Piepgras, 138 N. Y. 26; Miller v. Warren, 94 App. Div. 192. 80 De Lancey v. Hawkins, 23 App. Div. 8. 81 Sanders v. Riedinger, 19 Misc. Rep. 289; s. c., 30 App. Div. 277; Greenleaf Case, 141 N. Y. 395, 399; Archibald v. N. Y. C. & H. R. R. R. Co., 157 id. 574; Beasel v. Gray, 62 id. 632; Bedell v. Shaw, 59 id. 46; Sands v. Hughes, 53 id. 287, 294. 82 Christie v. Gage, 71 N. Y. 189; Clarke v. Hughes, 13 Barb. 147; Clute v. N. Y. C. & H. R. R. R. Co., 120 N. Y. 267, 273. 83 Jackson v. Gumaer, 2 Cow. 552; Candee v. Hayward, 37 N. Y. 653, 656; Brady v. Begun, 36 Barb. 533; § 260, supra. Section does not Apply to Court's Officers, etc. This section has no application when the conveyance is pursuant to an order of a court. of competent jurisdiction. 84 Exception Tolerating Mortgage of Lands Adversely Held by Claimant. The exception allowing a claimant to lands held adversely to mortgage them was a compromise with the old law. It was introduced in the Revised Statutes by the revisers, and permits a mortgage in a case where a deed would be invalid.88 87 Section does not Apply to Reconveyances by Reason of Defects in Former Deeds. A conveyance by a grantor to a grantee, both out of possession, given to remedy a defect because of failure to express a consideration in a former deed executed by the grantor, and to fortify the title of the possessor of the premises, or a title derived from him, is valid for that purpose, and to estop the grantor from setting up the defect.89 Remedy when Conveyance Void. When a conveyance is void under this section, grantee may still sue in grantor's name, by express provision of the Code of Civil Procedure, to recover possession of the property.90 Defense of Statute Must be pleaded. When plaintiff in ejectment claims under a deed, void under this section, the defendant must plead the invalidity in order to make the defense available.91 Chapter 481, Laws of 1909. This chapter excepted from the operation of this section grants made to The People of the State of New York. The section as it stands in this book is taken from the amendatory act, so as to present the law as it stands at present. 84 Knapp v. Burton, 7 N. Y. Civ. Proc. Rep. 448; Smith v. Scholtz, 68 N. Y. 41, 53; Christie v. Gage, 71 id. 189; De Garmo v. Phelps, 176 id. 455; cf. Eisemann v. Lapp, 38 Misc. Rep. 14, 17. 85 I R. L. 172. 86 1 R. S. 739, § 148; § 260, Real Prop. Law; Penal Code, §§ 130, 131. 87 Note of Revisers to 1 R. S. 739, § 148. 88 Penal Code, § 131; Ten Eyck v. Craig, 62 N. Y. 406; and see brief at p. 411; Towle v. Remsen, 70 id. 303, 318; cf. Marden v. Dorthy, 160 id. 39. 89 Fryer v. Rockefeller, 63 N. Y. 268; Lambert v. Huber, 22 Misc. Rep. 462. 90 III, old Code; § 1501, Code Civ. Proc.; Dever v. Hagerty, 43 App. Div. 354; revd., 169 N. Y. 481; Ten Eyck v. Witbeck, 55 App. Div. 165, 167. 91 Ten Eyck v. Witbeck, 55 App. Div. 165. |