73 A.D. 109 | N.Y. App. Div. | 1902
This action was brought by the plaintiff, who is the brother of the defendant Carrie Fordham and the son of the defendant Booth, for the partition of certain real estate. His complaint set forth in substance, among other things, by appropriate allegations, that he and his sister were cotenants of the real estate described under a deed from the defendant Booth and his wife; that his defendant sister Fordham, at the time of the commencement of the action, resided upon a portion of the land in question, and that the defendant Booth was, or claimed to bé, in occupation of parts of said premises; that the latter had no right of possession or of occupation of the premises as against the plaintiff, and that whatever rights he had or claimed were under the defendant Carrie Fordham, the extent or nature thereof being unknown to the plaintiff.
It was suggested upon the argument in this court that said Abial Booth also made the defense that he had acquired title to said premises by adverse possession, but no such defense was set forth in the answers, and we are unable to determine from the record that any such defense was presented or urged upon the trial.
The questions whether the deed in issue was delivered to the grantees, and whether there was a consideration for the same, were submitted to the jury which found a verdict thereon in plaintiff’s favor. At the close of all the evidence defendants made a motion that the complaint be dismissed “upon the ground that the plaintiff has not made out an action to maintain an action in partition.” The decision upon this motion was reserved pending the verdict of tne jury. After the latter was rendered it was decided in favor of the defendants. No opinion, however, was handed down indicating the grounds upon which the motion was granted. Under all of these circumstances we are not very accurately informed as to the propositions which were presented by the parties to the learned trial justice of upon which he based his decision. Upon all of the questions which we are able to conceive of as having been involved in the trial, we think, however, that plaintiff was entitled to have said motion denied.
Upon the principal disputed question of fact, whether the deed conveying the premises in question to plaintiff and his sister was executed and so delivered as to convey title, we think there was ample evidence to present an issue of fact and to sustain the finding of the jury thereon. The allegations contained, in the answers
If wo assume that the complaint was dismissed upon the ground that issues were raised and involved which could not be tried in an action of partition, we think such disposition was error. . The plaintiff stated his title or interest in the property as an undivided one-half and that his sister as his cotenant was entitled to the other one-half; that whatever interest the defendant Booth had in the premises was under such cotenant. " He even specified the conveyance upon which this claim of title or interest was based, and which conveyance upon the face sustained his allegations. The defendants, who, under the allegations of the complaint and upon the facts as developed, were proper parties, by denials and otherwise in their answers controverted his title and interest. They sought to escape the effect of the record title which did make him and his sister cotenants by alleging and proving that the deed as a matter of fact was never so executed and delivered as to pass such title. We think the issues thus raised were clearly triable in this action of partition. (Code Civ. Proc. § 1543; Drake v. Drake, 61 App. Div. 1; Weston v. Stoddard, 137 N. Y. 119 ; Satterlee v. Kobbe, 66 App. Div. 306.)
In accordance with these views we think the judgment appealed from should be reversed and a new trial granted.
Adams, P. J., McLennan, Spring- and Williams, JJ., concurred.
Judgment reversed and new trial ordered, with costs to the appelant to abide event, upon questions of law only.