majority">Brown, J.

The defendant moves for judgment in her favor upon the evidence and the special verdict of the jury. The plaintiffs move to set aside the special verdict upon the ground that it is not sustained by the testimony, and that a general verdict be directed in their favor.

The jury have determined (1) that the consideration named in the contract with Charles H. Little has been paid, and (2) that Charles H. Little held the land adversely to. the heirs of Zachariah Griswold prior to January 22, 1863, and adversely to Charles Griswold subsequent to that date.

In the judgment of the court, these findings have no support in the testimony and must be set aside. The finding that the consideration expressed in the contract of sale has been paid rests wholly upon the presumption arising from .lapse of time. Independent of the fact of Little’s possession of the property and the expenditure by him of large sums of money thereon, the only testimony from which it is claimed that the jury could infer payment are the map, the road agreement and the deed to Kent. But these exhibits have no tendency to show a payment of the purchase price of the land or a delivery of the deed therefor when considered in connection with- the fact that Little was given possession by the express terms of the contract, and that it was intended that he should, from and after the date of that instrument, be entitled to the enjoyment of all the rights of an owner. The fact that he was treated as such by Charles Griswold or his attorney in fact, throws no light upon the question of the payment of the purchase money. All the expressions of the paper referred *285to are entirely consistent with the fact that he was a vendee in possession of the land. The fact of possession and the large expenditures made by Mr. Little for buildings and other improvements upon the property have likewise, in my judgment, no bearing upon this question. Possession was given by the contract. It was a fact existing immediately upon the execution and delivery of that instrument. So the improvements and expenditures began immediately upon possession being taken. The expenditure of money was made in the beginning upon the faith of possession, and not upon the acquisition of the legal titlé. It is impossible to draw any inference from these facts that payment of the purchase money was made two year’s after possession began. The case is barren, therefore, of any testimony from which the jury could find that the purchase money had been paid, unless that fact could be presumed from the lapse of time. But that such a presumption cannot be drawn in a case of this character is settled by authority. Morey v. Farmers' Loan & Trust Co., 14 N. Y. 302; Lawrence v. Ball, Id. 477; Brady v. Begun, 36 Barb. 533.

I fail to find any testimony tending in the slightest degree to support a finding of adverse possession. The plaintiffs show a perfect paper title, and the occupation of the land by any other person is presumed to be subordinate to their title until the contrary is shown. ,

When a stranger to a recorded title enters into possession of land his entry is assumed to be hostile to the real owner, and his possession is the continued assertion of an adverse right. But in this case the ■ entry was under the Griswold title, and the subsequent possession is presumed to be subordinate to that title until some act hostile thereto is shown. The burden of proof rested upon the defendant to show an adverse holding, but she has shown none. It nowhere appears that Charles Little ever asserted any claim to the land hostile to Griswold’s rights. That he*spoke of it as his property i# true, but that of itself is of no importance, unless the assertion was made to his vendor and amounted to a claim of the entire *286title. To say that the property was his did not, in view of the fact that his possession was with the assent of the vendors, necessarily deny their legal title. It is apparent, therefore, that in the absence of proof of an assertion of an adverse right there could be no possession adverse to the Griswolds until the contract of sale was performed by payment or tender of’ the purchase money. There being no proof of that fact, the finding of adverse possession is unsupported. The testimony shows no act of Mr. Little’s which was hostile to Griswold’s title until the conveyance to the defendant, in 1885, but sufficient time has not elapsed since that date for the defendant’s possession to ripen into a title.

The defendant’s motion for judgment is therefore denied, and the plaintiffs’ motion to set aside the special verdict is granted.

It follows that a verdict must be directed for the plaintiffs, unless a tender of a deed was essential to a maintenance of the action.

Upon the trial I was of the opinion that a tender was necessary to support the action, but subsequent reliection has changed the opinion then expressed.

The defendant’s position on this question would be unassailable if she claimed the land as a vendee in possession. But she repudiates that character wholly. She claims title to the land under the deed from Charles H. Little, exclusive of any other right, and asserts a title adverse to the plaintiffs. Under such a claim a tender would be a useless act. The defendant, while denying the plaintiffs’ title, cannot claim the benefit of a rule, the observance of which would be founded solely upon the existence of that title and the fact that her rights were subordinate thereto.

The motion to dismiss the complaint is, therefore, denied, and a verdict is directed in favor of the plaintiffs for the possession of the land.

In the brief submitted by the plaintiffs they offer to accept .a judgment in the alternative which would permit the defendant to take title on payment of the purchase money and inter*287■est. A court of equity has the power to relieve the defendant from default and permit a performance of the contract, but no equitable right is claimed by the defendant, and I have no power in this action, as the pleadings now stand, to treat the case as other than an ordinary action in ejectment.

I shall, therefore, direct a verdict for the plaintiffs, with leave, however, to the defendant to apply to me within twenty days to amend her answer in such form as to permit such a judgment as the plaintiffs offer-, should she desire to avail herself thereof.

Ordered accordingly.

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