Misc.] Supreme Court, February, 1918. cited that Dunning, a trapper and guide, who had long resided on an island in Raquette lake, belonging to the state, desired a permanent home and asked the commissioners to grant Dunning for fifty years, or during life, a lease of the island, not transferable, at a rental of five dollars a year. On advice of the attorney-general, this petition was denied, because the state could not lease land for a longer term than one year. Colvin made this petition after talking with Dunning and reported to Dunning the result, but he says he procured this action by officials of the state of his own motion and as a friend, without authority from Dunning, and that Dunning refused to have anything to do with it. I should hesitate to find that one then representing the state would so act without authority and when he knew, if the petition was granted, the lease would not be accepted. On October 31, 1879, Charles W. Durant, Jr., made application to the commissioners of the land office to purchase Osprey island, and in it stated: "Said Osprey island was at one time handsomely wooded, but, having been occupied successively by temporary camping parties, who had no interest in its preservation, the trees have been cut down and fires run over almost the entire island." This application was acted on and Mr. Durant was duly appointed custodian, to continue such during the pleasure of the commissioners, without compensation from the state. He accepted the appointment, went upon the island and staked out a place for his camp. He later sent men to cut the brush, but Mr. Dunning drove them away. Directly thereafter the differences between Dunning and Durant were adjusted. Mr. Durant paid $100, and received in return a memorandum in form of "a bill of sale" or "a contract for a deed." Mr. Durant built or partly built two camps or houses on the island. Supreme Court, February, 1918. [Vol. 102. Later (December, 1881) he procured a deed from Dunning, paying him $100. This deed he did not record until 1891, when he sold out to defendant Joseph H. Ladew. In December, 1882, C. W. Durant gave to W. W. Durant a power of attorney to act as his agent with reference to the island. In that month he made another application to the commissioners of the land office to purchase the island, "to which I have title from parties who occupied the same for many years." But he does not claim those parties had any title and they are presumably the same parties referred to in his former petition as temporary camping parties who had no interest in the preservation of the island. W. W. Durant knew the modern history of the islands. This application was referred to the attorney-general, who reported adversely, and thereupon the commissioners of the land office remitted the case to the legislature for action. A bill was introduced in 1884 for the relief of Charles W. Durant, which failed, and another in 1885, which likewise failed. The commissioners of the land office had the care, custody and control of the state lands. The acceptance of the appointment as custodian by Mr. Durant and his entrance and continued occupation under it, as well as his application to purchase the islands, were a recognition of the state's title. He knew of the deed to the state and took his deed from Dunning to satisfy Dunning and to avoid Dunning's opposition to his entry. Mr. Durant's entire occupation was as such custodian and at no time adverse. In 1891, C. W. Durant executed a deed of the islands to Joseph H. Ladew (not a warranty deed, except as against acts of the grantor), who then entered and has remained upon the premises until the beginning of this action. In September, 1898, the forest, fish and game commission served a notice upon Joseph Misc.] Supreme Court, February, 1918. H. Ladew to vacate the premises, which he refused to do. Both in the answer in those former actions, verified October 27, 1902, and in the present action, the defendants plead that Charles W. Durant had a contract with the state to purchase these islands and has been ready at all times to pay the agreed price for the patent applied for; that the defendant is the successor of Durant to this contract by his deed from Durant and has relied upon such contract to fully protect him in the expenditure of large sums for the improvement and betterment of said premises; that defendant has stood ready at all times to pay the purchase price fixed and offers to pay into this court such sum as the court may direct, to be deposited subject to its order. Durant being in as custodian for the state, Ladew, who took his deed from Durant, stood in like position. His possession was the possesion of the state and not hostile or adverse, and this is true even though Ladew took his deed of the fee in ignorance of the fact that Durant stood in the relation of custodian, and this relation is presumed to continue for twenty years, notwithstanding any claim by the custodian or his successor of a hostile title. Whiting v. Edmunds, 94 N. Y. 309, 314; Code Civ. Pro. § 373. Having entered as custodian, to initiate an adverse holding he must have surrendered the possession of the island, or done something equivalent to that, and bring home to the state knowledge of his adverse claim. Jackson v. Stiles, 1 Cow. 575; Whiting v. Edmunds, 94 N. Y. 314. Durant's acts and declarations in recognition of the plaintiff's title while he was in possession are competent against Ladew, his successor in title. Pitts v. Wilder, 1 N. Y. 525; Chadwick v. Fonner, 69 id. 404; Lyon v. Ricker, 141 id. 225. And defendant's answer setting forth an alleged contract to purchase Supreme Court, February, 1918. [Vol. 102. the islands is an admission of the state's title, and is more than an intimation that he claims no title as against the state. Title by adverse possession has not been acquired by Mr. Ladew or his predecessors. Dunning's possession, if at any time he held adversely, never ripened into title. That a title by adverse possession may mature, such possession must not only begin, but it must continue, adverse, uninterruptedly, for the statutory time and without any intimation that the defendant claims no title. Brandt v. Ogden, 1 Johns. 155; DeLancey v. Hawkins, 23 App. Div. 8. "A single lisp of acknowledgment by the defendant, that he claims no title, fastens a character upon his possession which makes it unavailable for ages." Colvin v. Burnet, 17 Wend. 564, 569. The presumption that the relation of state and custodian still existed continued twenty years after the termination of the tenancy. Code Civ. Pro. § 373; Bedlow v. New York F. D. D. Co., 112 N. Y. 263. The defendant Joseph H. Ladew then never was in possession, save as custodian. time was his possession adverse so that it could ripen into title as against the state. Laws of 1883, chap. 13; Laws of 1885, chap. 283; Burbank v. Fay, 65 N. Y. 65, 66; Hamlin v. People, 155 App. Div. 680. The defendant therefore has no title to the islands. As against these defendants the state has a right to recover. (1) The defendants and their predecessor, Durant, have admitted the state's title and are not at liberty now to deny it. The tenant may not deny the title of his landlord at the time he entered into possession, nor may the custodian deny the title of the state which put him in possession. He may show that the state has been later divested of its title (Inman Case, 197 N. Y. 205; Hoag v. Hoag, 35 id. 471), but this he Misc.] Supreme Court, February, 1918. has failed to show. No person has acquired any rights in these islands as against the state since 1879, when Durant first entered upon them. Mr. Ladew's refusal to vacate the islands upon demand of the state, on whatever claim he based that refusal, has given him no better claim to the islands than he had before that refusal. If he based his refusal upon his alleged contract to purchase, his claim is groundless, as he has no such contract with the state. After his refusal he remained in occupation as a trespasser - as a tenant or custodian-holding over after his rights under his lease or appointment have expired. Though in occupation, his possession is a naked possession, without claim of title, and he is not in position to question the state's title under its tax deed in 1875, or its later deeds in 1899 and 1909. (2) If we assume that legal title is established in neither party, the plaintiff may succeed, for then the party showing the prior possession in himself, though not sufficient in time to ripen into title by adverse possession, will be deemed to have the better right. People v. Inman, 197 N. Y. 200, 206. As we have seen, the state, claiming under its tax deed duly recorded, was in prior possession by its custodians, Durant and Ladew, and by its commissioners (People ex rel. Turner v. Kelsey, 180 N. Y. 24, 26) in and after 1879 continuously, and has the better right. (3) The defendants have in nowise connected themselves with the title. The plaintiff, under the deeds of May, 1899 and 1909, is at least a tenant in common in the islands, and as such may maintain this action. One tenant in common may maintain ejectment in any case where such an action could be maintained by all. Code Civ. Pro. 1500; Deering v. Reilly, 167 N. Y. 184. Although the Webb deed was in evidence at the former trial, it was not considered by the Court of Appeals, |