| NY | Sep 24, 1878
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *440 We concur with the General Term in the view that this action cannot be maintained as an action to remove a cloud upon the plaintiffs' title. The plaintiffs' title is founded upon the assignment in trust from George Webster to David Russell executed and recorded in September, 1846, and the conveyance by Russell, the assignee, to Simeon D. Webster, under whom the plaintiffs claim. The defendants claim under a sale by a receiver appointed in proceedings against George Webster, founded upon a judgment recovered against him in October, 1846. This receiver's sale and the deeds from him did not on their face transfer any title, as against the plaintiffs, being proceedings against the plaintiffs' grantor, subsequent to the conveyance from him under which the plaintiffs claim.
Those claiming under the receiver's sale could not establish any title, without first overthrowing the plaintiffs' title by showing by extrinsic evidence that the assignment made by George Webster was fraudulent and void. In such a case, an action of this description cannot be maintained. It is only where there is an instrument or proceeding which on its face purports to create or convey a title paramount to that of the party seeking relief, or an mcumbrance thereon, that an action will lie to set aside such instrument or proceeding as a cloud upon the plaintiffs' title.
If, as is claimed, the assignment from Webster is void upon *442 its face, that is equally fatal to this action, for then the plaintiffs have no title. Assuming it to be valid on its face, the plaintiffs have an apparent title, which cannot be overcome without proof; and the proceedings under which the defendants claim do not of themselves show any title in them, or constitute any cloud upon the plaintiffs' title.
The claim in the complaint to recover rents and profits cannot be sustained, for it appears that the plaintiffs are out of possession. They must recover possession before they are in a position to claim rents and profits. If their allegations are true, their proper remedy is an action of ejectment.
This action can hardly be sustained as an action of ejectment. The complaint is framed solely for equitable relief, viz.: To set aside the order authorizing the receiver to sell, and the conveyance by the receiver, and enjoin the use and any disposition of the property by the defendants, and to compel an account of the rents and profits and a release to the plaintiffs of any interest acquired under the alleged collusive proceedings. The supplemental complaint does not contain the allegations necessary in an action of ejectment, for it does not state that the defendants, or any of them, are in possession. The referee had no power to amend it on the trial, so as to change the cause of action from one for equitable relief to one in ejectment. If such an amendment had been made, the cause would have been triable by jury and not by a referee. The referee having had sufficient grounds on which to deny the equitable relief demanded, the judgment entered on his report cannot, under the circumstances of this case, be reversed because he did not grant legal relief which was not demanded in the complaint and for which it was not properly framed. As no relief could properly be granted on the complaint, as it stood, the exceptions taken on the trial are immaterial.
The counsel for the appellants has cited cases showing that a plaintiff may, under the provisions of the Code which permit the joinder of legal and equitable causes of action, demand in the same action that a cloud upon his title be *443
removed and that he recover possession. (Lattin v. McCarty,
The judgment should be affirmed, with costs.
All concur, except MILLER and EARL, JJ., absent.
Judgment affirmed.