majority">By the Court, Talcott, J.

This is an action of ejectment, to recover the possession of a lot in Ellis village, in the county of-Jefferson.

■ According to the findings of the referee, Allen Kilborn was the owner of the premises in fee, on and prior to April 1, 1841. On that day one Sherwood, assuming to act as the agent .of Allen Kilborn, entered into a written agreement for the sale of the premises to Samuel H. Stearns. Stearns being then in the possession of the premises under a lease from Allen Kilborn. The bargain made by Sherwood was for a sale of the property for $250, but he received a note from Stearns for $50 in payment of part of the purchase money, and the sum secured by the contract to be paid was only $200. Sherwood sent the contract and note to Allen Kilborn. Sherwood had no authority to enter into the contract as the agent of Kilborn, and the latter refused to accede to it, but prepared and executed another contract to sell the same premises to Stearns, bearing the same date as the Sherwood contract, but providing for the payment of $250 as the condition on which a conveyance was to be made. By this latter contract the sum of $50, part of the purchase money, was to be paid by Stearns on the 1st day of July, 1841, and Allen Kilborn caused the Sherwood contract and the $50 note to be returned to Stearns. They were delivered back to him, and the new contract, executed by Allen Kilborn personally, was, by agreement of the parties, substituted in place of the Sherwood contract. On the 2d of July, 1841, Allen Kilborn assigned the last contract to his son, Hiram W. Kilborn, and authorized him to settle with Stearns. On the next day Hiram W. Kilborn applied to Stearns forth e payment of the $50 w-hich became due on the first of the same month. Stearns could not pay, and thereupon surrendered the contract and agreed thereafter to occupy the premises as a tenant. The particular terms of - the tenancy are not found by the referee. The agreement, as *531testified to, was that Stearns was to pay Hiram W. Kilborn rent for the premises as long as he (Stearns) occupied them. The lease under which Stearns was occupying when the contract was made, was a lease for a year, at the annual rent of $36.

Allen Kilborn died intestate in August, 1841. In the summer or fall of 1842, the said Samuel Stearns, being still, in possession of the premises, undertook to, and did, for a valuable consideration assign .to one George M. Hopkinson, the old contract attempted to be made by Sherwood as the agent of Allen Kilborn with Stearns, falsely representing it to be a valid contract, and that he had paid $50 down at the time of taking it; and thereupon he surrendered the possession of the premises to Hopkinson, who purchased the contract for a valuable consideration, believing the same to be a valid and outstanding contract, and went into possession of the premises under that supposition. Hopkinson afterwards paid to the administrators of Allen Kilborn the amount purporting to be secured to be paid as the purchase money of the premises under the Sherwood contract, supposing, as the referee finds, that they had a right to receive the same, and they did receive it. Hiram W. Kilborn was the son, and one of the heirs at law of Allen Kilborn, and in 1841 and 1842, he acquired, by conveyance, the title and interest of his co-heirs to the premises. This was before the payment by Hopkinson to the administrators of Allen Kilborn, of the sum purporting to be due on the Sherwood contract. Hopkinson and'those claiming under him, have been in the occupation of the premises since he received the possession with the assignment of the Sherwood contract from Samuel Stearns. And since he made the last payment on the Sherwood contract to the administrators, which was'in-March, 1843, Hopkinson has claimed to own the same under the Sherwood contract. In 1858 the plaintiff went into possession of the premises, under a verbal contract with Hopkinson *532to purchase the same of him. In 1865, and whilst the plaintiff' was so in possession under the verbal contract with Hopkinson, he (the plaintiff) took a deed of the premises from Hiram W. Kilborn. Many and various negotiations had taken place between Hopkinson and Kilborn before this time, touching some compromise, or settlement, of the disputed title, each claiming in hostility to the other.

Much evidence was given on the part of the defence, tending to show that Hiram W. Kilborn had, after Hopkinson’s purchase of the Sherwood contract from Stearns, recognized the validity thereof, and consented to the payment of the money purporting to be due thereon to the administrators, by way of raising an estoppel against Hiram W. Kilborn.

This was contradicted, and the referee finds that no facts were sufficiently proved to establish such an estoppel. When Hopkinson.discovered that the now plaintiff) then in the possession of the premises as his vendee, had taken the conveyance from Hiram W. Kilborn,. he commenced an action of ejectment against the present plaintiff". On the trial of that action the now plaintiff" was not permitted to set up his title under the deed from Hiram W. Kilborn, upon the ground that he had entered into the possession under the contract with Hopkinson, and could not set up a hostile title existing at the time of his taking possession, until he had first restored the possession-. (Jackson v. Spear, 7 Wend. 401.)

The present defendant is the tenant of Hopkinson. The referee has determined, as a conclusion of law, that the possession of Hopkinson, from the time he paid to the administrators the amount purporting to be secured by the Sherwood contract, was hostile and adverse to the title of Hiram W. Kilborn; and therefore that the defendant and those under whom he claims, have held the premises adversely for more than twenty years, and upon this *533ground, has rendered judgment for the defendant. In this we think the referee has overlooked an important principle of law, namely, the one which was illustrated in the action of Hopkinson against the now plaintiff, and which the referee, in discussing the effect of that judgment, seems to fully recognize and understand. The plaintiff represents, and is vested with the title which Allen Kilborn formerly had, and to which Hiram W. Kilborn succeeded. It would not he seriously* pretended that if Stearns were now in possession of the premises he could deny the title which the plaintiff represents. He entered into the possession of the premises as the tenant of Allen Kilborn, under a lease rendering rent, and could not, while that possession was continued, dispute the title of his landlord. During such possession, he took a contract for the purchase of the land, which was equally an acknowledgment of the title of Kilborn. This contract was never performed, but Stearns, being unable to perform it, surrendered it, and agreed to resume his footing as a tenant. Under these circumstances no adverse possession could commence while that possession continued, as against Allen Kilborn or his heirs. So far the referee recognizes the doctrine, but he seems to have overlooked the fact that this rule of law applies not only to the tenant him-, self' but to everyone who succeeds to his possession by his permission and consent. This doctrine is distinctly recognized in Jackson v. Spear, (supra,) and has been expressly decided in several cases. Jackson v. Walker, 7 Cowen, 637. Jackson v. Harder, 4 John.. 202.)

The lessor, .or vendor, of land would lose the protection of this rule of property, if the tenant or vendee could make a fraudulent title to a third person, let him intd possession and then such third' person should be permitted to claim adversely under the fraudulent title thus created by the tenant in possession, and who could not himself be permitted to set up even a valid title, without first restor*534.ing the possession. The title claimed by Hopkinson was a title fraudulently created by the tenant of Kilborn, and Hopkinson was let into possession by, and succeeded to the possession of, the tenant. “A claim of title which cannot be set up by a person while in possession, cannot be set up by another who comes into possession under him.” (Jackson v. Harder, supra) As assignee of Samuel Stearns the possession of Hopkinson could not be adverse; and that possession could by no mere lapse of time ripen into a title as against the landlord, or those claiming under him. The administrators could not, of course, by any act or omission of theirs, whether done innocently or otherwise, afiect the title of Hiram W. Kilborn, and their unauthorized receipt of the money, pn the never valid, and long abandoned, Sherwood contract, did not • change the position of Hopkinson with regard to the true owner, or turn his possession as tenant of Kilborn into an adverse possession.

[Fourth Department, General Term, at Rochester,September 10, 1872,

The judgment must be reversed and a new.trial ordered, costs to abide the event, and the order of reference . vacated.

Mullir, P. J., having formerly been of counsel in regard to the matters involved, did not sit in the case.

Hew trial granted.

Johnson and Talcott, Justices.]

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