122 N.Y.S. 581 | N.Y. App. Div. | 1910
This action is in ejectment. Trial by jury was waived- Plaintiffs’ ■counsel offered in .evidence a deed dated . March 1, 1856, and recorded March 4, 1856, made by Frederick Grote and wife and
From this decree it appears that Charles L. Aubuchon died at Iron Mountain, St. Francis county, Mo., in the year 1866 and that he left as his only heirs at law two sons, Charles L. Aubuchon and William H. Aubuchon, each of whom resides in St. Louis. Plaintiffs’ counsel then offered in evidence two deeds, one made by Charles L. Aubuchon and wife, dated July 31, 1905, and recorded August 25, 1905, and one made by William H. Aubuchon and wife, dated September 21, 1905, and recorded December seventh in the same year. James G. Coburn was the grantee named in each of said deeds. The complaint alleged and the answer admitted that at the time of these conveyences the premises were in the actual possion of the defendant who held or claimed to hold the same' adversely. In accordance with the provisions of section 1501 of the Code of Civil Procedure this action was brought by Coburn in the name of his grantors. Plaintiffs’ counsel then offered in evidence two judgment rolls in actions brought in the Supreme Court by Aaron Peck, Jr., against Charles L, Aubuchon to foreclose mortgages upon property situated in Kings county. From these it appears that at that time the said Charles L. Aubuchon was not a resident of the State of Hew York. It also appears from the judgment rolls and admissions made by defendant’s counsel that
We think defendant’s motion should have been granted. In an action of ejectment it is not enough to prove a paper title to the disputed premises, unless that title is traced back either to the sovereign or to some one admitted or proved to have been a common' source of the title claimed by both plaintiff and defendant. In other cases, in addition to the paper title^ possession must be proved in some one through whom plaintiff claims. (15 Cyc. 39 ; Miller v. Long Island R. R. Co., 71 N. Y. 380 ; Greenleaf v. Brooklyn, Flatbush & C. I. R. R. Co., 132 id. 408; S. C., 141 id. 395; Roberts v. Baumgarten, 110 id. 380; New York Central & H. R. R. R. Co. v. Brennan, 12 App. Div. 103.) Plaintiffs’ counsel invokes the aid of section 368 of the Code of Civil Procedure, which relates to the Statute of Limitations. But the “legal title” there referred to, which in .the first instance possession is presumed to follow, is something more than a paper title. It is such a title as, undisputed, would sustain an action of ejectment within the rule above stated. “ Where a party is under the necessity of proving title, it is not enough to simply produce a deed; he must show possession in the grantor, or possession accompanying the deed; without this
The judgment appealed from must be reversed and a new trial granted, costs to abide the event.
Hirschberg, P. J., Thomas, Rich and Carr, JJ., concurred.
Judgment reversed and new trial granted, costs to abide the event.
Code Proc. § 81. — [Rep.