Opinion
December Term, 1898.
Frederic E. Storke, for the appellant.
Amasa J. Parker, for the respondent.
The plaintiff purchased the farm assessed for taxes in the year 1895, under a written executory contract, and entered into possession thereof April 1, 1895, and continued in possession until April 1, 1896. The legal presumption arising from the contract is that the plaintiff and not her husband was in possession of the farm. ( Mygatt v. Coe, 124 N.Y. 212; 142 id. 78; 147 id. 456; 152 id. 457.) No attempt was made by the defendant to rebut this presumption, and, besides, the plaintiff testified that she cultivated the farm, personally did much of the work thereon, and that the consideration for the purchase of the farm was realty which she formerly owned and held the title to. This evidence is uncontradicted, and there is no circumstances in the case which throws any doubt as to the truth of her testimony. Under the written contract and the oral testimony it must be held that the plaintiff was in possession of the farm from April 1, 1895, to April 1, 1896, as owner and occupant. The horses sold by the defendant were used as a team on the farm, one of which was given to the plaintiff by her father fourteen or fifteen years before the levy, and the other was purchased by her seven years before the levy. There is no evidence in the record tending to show that the plaintiff's husband exercised any legal control over the farm or the horses. The plaintiff's testimony was not contradicted or sought to be. She was not impeached, and there is no circumstance in the record which tends to impeach her credibility, and, under such circumstances, the justice was not at liberty to disbelieve her simply because she was interested in the event of the action. ( Denton v. Carroll, 4 App. Div. 532.) Under the undisputed evidence the defendant was a trespasser. ( Hallock v. Rumsey, 22 Hun, 89.)
The judgment should be affirmed, with costs.
All concurred.
Judgment affirmed, with costs.