O'BRIEN, J.
The findings of the court below are to the effect that, upon the death of Charles B. Hargin in 1840, the undivided quarter of the lands in question descended to his three children, of whom the plaintiff is one, subject to the widow's dower. By the subsequent death of two of the children, without issue and intestate, the estate which the ancestor had at the time of his death became vested in the plaintiff as the surviving child, subject to a life estate in two of these shares in the widow. But it is also found that since 1849, when Lucy Maria Raynor purchased the whole farm from Hovey, and went into possession, the whole premises have been held adversely, first by Mrs. Raynor under her deed, and since 1859, by the defendant under its conveyance from Mrs. Raynor. The heirs of Hargin became tenants in common with the other owners, and the findings of adverse possession implies that the possession of Mrs. Raynor was such as to amount to an ouster of her co-tenants. Whatever may be said in regard to the nature of Mrs. Raynor's possession, whether hostile on not, there can be no doubt that the possession of the defendant from the time that it purchased the land in 1859 to the time of the commencement of this action was of such a character as to justify the conclusion that it commenced in an ouster of the heirs. It was the case of the purchase by a public corporation, organized in perpetuity, of lands to be devoted to the burial of the dead, followed by enclosing, improving and laying out the land in such manner and devoting it to such use as was utterly inconsistent with every other claim of title, and this was a termination of the joint tenancy, if it was not terminated before. ( Zapp v. Miller, 109 N.Y. 51; Millard v. McMullin, 68 id. 345; Florence v. Hopkins, 46 id. 182.) The effect of this adverse possession upon the life estate of Mrs. Hargin is the most important question in this case. The courts below have held that its effect was not only to cut off her remedy for its recovery, but to extinguish the estate itself and vest it in the defendant. If the contention be correct that the defendant in virtue of its adverse possession took to itself the life estate, then Mrs. Hargin, when she executed to the plaintiff the deed of October, 1885, had nothing to convey and that deed was ineffectual. The learned counsel for the plaintiff, perceiving the importance of this point, has addressed himself to its solution with most commendable learning and industry. Perhaps the highest praise that can be awarded to his argument is to record the fact that it drew from his distinguished adversary a generous but well-deserved compliment at the bar. We cannot, however, assent to the proposition that adverse possession of land for a period sufficient to bar an action merely cuts off the owner's remedy without affecting the estate. While this principle is not without the sanction of judicial authority, and that of text-writers, we think that the tendency of modern decisions in this and most of the states, as well as in the federal tribunals, is against it. It was held that the effect of the English Statute of Limitations (21 Jac. 1, chap. 16) was to bar the remedy, but not to divest the estate. ( Davenport v. Tyrrel, 1 Wm. Black, 679; Beckford v. Wade, 17 Ves. 87; Scott v. Nixon, 3 Dru. War. 388, 403; Incorporated Soc. v. Richards, 1 id. 258, 289; Trustees of Dundee Harbor v. Dougall, 1 Macq. H.L. Cas. 317; Digley's Hist. Real Prop. 159; 3 Cruise on Real Prop. 430.) But the construction placed by the English courts upon that statute was not acceptable to a more liberal and enlightened age. The commission of 1828 appointed to reform the anomalies and abuses of the law reported, and parliament enacted a new statute in respect to the possession of land (3 and 4 Wm. IV, chap. 27), the thirty-fourth section of which not only barred the remedy in case of adverse possession, but in terms extinguished the estates. (Angell on Lim. chap. 2, 10; App. [5th ed.] 15.) Since the passage of this statute it is held that adverse possession for a period sufficient to bar the action divests the estate of the true owner, and transfers it to the party holding adversely. (49 Hun, 420, and cases there cited.)
But the doctrine of the English courts, giving construction to the Statute of James, does not seem to have been followed in this state. It is true that Judge COWEN, in the course of a long and able opinion in the case of Humbert v. Trinity Church (24 Wend. 587), remarked that it was of the nature of the Statute of Limitations, when applied to civil actions, "to mature a wrong into a right by cutting off the remedy;" and, again, when speaking of actions brought by the true owner after the bar of the statute, "his title remains, but he has lost his remedy." The question in that case was whether the long-continued adverse possession of the defendant barred the plaintiff's action, and it was held rightly that it did. The effect of an adverse possession as a means of acquiring title was not, however, involved in the case. The doctrine that a Statute of Limitations merely extinguishes the remedy has been frequently applied to contract obligations. As thus applied, the principle cannot be disputed. Time may bar an action upon the promise or contract, but it does not pay the debt. That remains as a moral obligation at least, and is a good consideration for a new promise. Adverse possession of tangible property implies not only the lapse of time, but the occupation and enjoyment by the possessor, and the acquiescence of the true owner in a hostile claim of title. The idea that the title to property can survive the loss of every remedy known to the law for reducing it to possession and enjoyment would seem to have but small support in logic or reason. Enactments which are appropriately termed statutes of repose when applied to the adverse possession of land, have, as it seems to us, a broader and deeper effect than simply to destroy the remedy of the true owner for its recovery.
One of the earliest cases in this state upon the question is Jackson v. Dieffendorf (3 Johns. 269), decided nearly a quarter of a century before the change made in the English Statue (21 Jac. 1, chap. 16). In that case a party who could show no other title to land than an adverse occupation for thirty-eight years, was at the end of that period put out of possession by another, who had the paper title, under a judgment in ejectment obtained by default, and the party recovering the judgment, and in whose deed the premises were included, went into possession. The dispossessed party then brought another action of ejectment against the person who had turned him out, and who had a deed of the land, for the purpose of repossessing himself of what he had lost. The court held that he was entitled to recover upon the ground that the adverse possession was conclusive evidence of his title. The doctrine of that case on this point has never been disturbed, and the case itself has frequently been cited with approval in this court. ( Baldwin v. Brown, 16 N.Y. 364; Reed v. Farr, 35 id. 117.)
The case of Cahill v. Palmer ( 45 N.Y. 478) was an action to recover money paid to the defendant for certain lands taken for Central Park. Both parties claimed to own the land for which the money was paid by the city. A statute provided that when the money was paid to the wrong person the real owner of the land might bring and maintain an action to recover it from the party to whom paid. The plaintiff had the paper title to the land, and the defendant, to whom the money was paid, showed an adverse possession for more than twenty years prior to the time the land was taken by the city. This court held that the money was properly paid to the defendant and that the plaintiff could not recover. GROVER, J., referring to the point now under consideration said: "The counsel for the appellant insists that an adverse possession, although for the length of time required by statute to bar the owner, is available only as a defense to a suit brought by such owner for the recovery of the land. In this the counsel is in error. When the possession is actual, exclusive, open and notorious, under a claim of title adverse to any and all other for the time prescribed by statute, such possession establishes title. To uphold it, a grant from the true owner to such party may be presumed." In Reformed Church v. Schoolcraft ( 65 N.Y. 134), it was held that adverse possession for the period prescribed by the statute to bar an action was sufficient proof of title upon which to maintain an action of ejectment against parties in possession without title. The policy upon which the Statute of Limitations was based when applied to real property was examined and the conclusion reached in that case that the real owner's title is lost by acquiescence in adverse possession by another, and that the title lost is gained by the party in possession.
In Barnes v. Light ( 116 N.Y. 34), it was held that an action of ejectment, founded upon adverse possession alone, may be maintained by the party in whose favor the adverse possession has run, even against the true owner. This case was decided mainly upon the authority of Sherman v. Kane ( 86 N.Y. 58); Carleton v. Darcy (90 id. 566); Mayor, etc., v. Carleton (113 id. 284), in all of which the principle is recognized that title may be obtained by adverse possession alone.
In Millard v. McMullin ( 68 N.Y. 345) it is held that such a title is sufficient to uphold the lien of an execution. A clear adverse possession for twenty years constitutes a title, which a purchaser at a judicial sale may not refuse. ( Seymour v. DeLancey, 1 Hopk. Ch. 436; Mott v. Mott, 68 N.Y. 246; Shriver v. Shriver, 86 id. 575; O'Connor v. Huggins, 113 id. 511.)
The Supreme Court of the United States has repeatedly asserted the recognized rule of the Roman law that adverse possession is one of the modes of acquiring title to property. In Campbell v. Holt ( 115 U.S. 620), Mr. Justice MILLER, delivering the opinion of the court, said: "By the long and undisturbed possession of tangible property, real or personal, one may acquire a title to it, or ownership, superior in law to that of another, who may be able to prove an antecedent and, at one time, paramount title. This superior or antecedent title has been lost by the laches of the person holding it in failing within a reasonable time to assert it effectively; as, by resuming the possession to which he was entitled, or asserting his right by suit in the proper court. What the primary owner has lost by his laches the other party has gained by continued possession, without question of his right. This is the foundation of the doctrine of prescription, a doctrine, which in the English law is mainly applied to incorporeal hereditaments, but which in the Roman law, and the Codes founded on it, is applied to property of all kinds." After pointing out the fact that possession was the earliest mode known to mankind for the appropriation of any thing tangible to the use of one, and to the exclusion of all others, and that it was always a means of acquiring title he adds: "The English and American Statutes of Limitations have in many cases the same effect, and if there is any conflict of decisions on the subject, the weight of authority is in favor of the proposition, that where one has had the peaceable, undisturbed open possession of real or personal property, with an assertion of his ownership for the period which, under the law would bar an action for its recovery by the real owner, the former has acquired a good title; a title superior to that of the latter, whose neglect to avail himself of his legal rights has lost him his title. This doctrine has repeatedly been asserted in this court. ( Leffingwell v. Warren, 2 Black, 599; Croxall v. Shererd, 5 Wall. 268, 289; Dickerson v. Colgrove, 100 U.S. 578, 583; Bicknell v. Comstock, 113 id. 149, 152.) It is the doctrine of the English courts, and has been asserted in the highest courts of the states of the Union."
The principle has also the sanction of two eminent authors on the law of limitations. Judge COOLEY, in his recent work referring to this question, says: "When the period prescribed by statute has once run so as to cut off the remedy which one might have had for the recovery of property in the possession of another, the title to the property, irrespective of the original right, is regarded in the law as vested in the possessor, who is entitled to the same protection in respect to it which the owner is entitled to in other cases. A subsequent repeal of the limitation law could not be given a retroactive effect so as to disturb this title. It is vested as completely and perfectly, and is as safe from legislative interference as it would have been had it been perfected in the owner by grant, or by any species of assurance." The learned author, admitting that there is controversy in regard to the point, has collected in a note the decisions of the highest courts in several of the states sustaining the doctrine stated in the text. (Cooley on Const. Lim. [5th ed.] 449.)
In the other treatise on this subject, which is of highest authority, it is said: "As a general doctrine, it has too long been established to be now in the least degree controverted, that what the law deems a perfect possession, if continued without interruption during the whole period which is prescribed by the statute for the enforcement of the right of entry, is evidence of a fee. Independently of positive or statute law, the possession supposes an acquiescence in all persons claiming an adverse interest, and upon this acquiescence is founded the presumption of the existence of some substantial reason (though perhaps not known) for which the claim of an adverse interest was forborne. Not only every legal presumption, but every consideration of public policy, requires that this evidence of right should be taken to be very strong, if not of conclusive force." (Angell on Lim. chap. 31, 373.) The same learned author seems to treat prescription and adverse possession, so far as this question is concerned, as practically the same thing. (Id. chaps. 1, 2.)
These authorities, and others that might be cited, show that title to an estate in land may be acquired by one and lost by another by means of adverse possession. This principle has become a rule of property that cannot now be disturbed without grave injury to titles. There is no serious claim that the plaintiff can recover the share which she took direct from her father, and as to the other two shares the plaintiff's remainders are limited upon her mother's life estate which the defendant has absorbed in its adverse possession, and is not yet terminated, as under the principles above stated she had nothing to convey and nothing passed to the plaintiff under the deed of October, 1885. Hence, the plaintiff's rights are to be determined in this case in the same way as if the deed had not been executed at all. This point is, we think, decisive of the case, and it is not necessary to examine the questions so ably discussed, whether the conveyance offends against the champerty statutes; whether the defendant is entitled to the rights of a mortgagee in possession, or when, and under what circumstances, a defendant in ejectment can protect his possession by an outstanding title in another.
The judgment should be affirmed.
All concur except ANDREWS, J., taking no part, and GRAY, J., not voting.
Judgment affirmed.
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