12 Misc. 119 | New York Court of Common Pleas | 1895
The action was brought to recover possession of premises on Elm and Pearl streets, in this city, formerly owned by Robert Boyd, and sold under execution against him to one Brit-ton, and thereafter redeemed by Samuel Boyd, another judgment creditor, to whom the sheriff issued a certificate, and who became entitled to a deed, but died before receiving it, leaving the plaintiff his only heir at law, to whom letters of administration upon, his estate were issued. After the death of Samuel Boyd, the sheriff, upon production to him by the other defendants of an alleged forged assignment of said certificate, executed a deed of the premises to the defendant Carberry, who conveyed them to the defendant Robert Boyd, the husband of Elise Boyd, who is now in possession, claiming to own the premises in fee under the alleged fraudulent conveyances. As incidental to the recovery of the premises the plaintiff asks that the alleged forged assignment of the sheriff’s certificate, and the deed delivered in pursuance thereof, and the conveyances by which Robert Boyd holds the premises be adjudged fraudulent and void; that the sheriff make a conveyance to the plaintiff, as administrator of Samuel Boyd, deceased, in trust for himself, as his heir at law, and that the other defendants release and convey to him any and all claim, right, title, and interest to the premises and the said certificate. This is, in substance, an action to recover the possession of real property, and is therefore an action of ejectment as defined by the Code. “The words, ‘an action of ejectment’ [refers] to an action to recover the immediate possession of real property.” Section 3343, subd. 20. And the first question is whether the action may be maintained in this form by one who has an equitable title only. Ordinarily, the action is by one who has the legal title as well as the immediate right of possession; but this is so as against a stranger in possession, who is no party to the transaction which forms the basis of the plaintiff’s equity. In such a case the plaintiff would first be compelled, in an action in equity against the proper parties, to establish his right to procure Ms deed, and then, having the legal title, to maintain his action of ejectment; but, where all the parties are before the court, the equitable as well as the legal relief can be awarded in the same action. Peck v. Newton, 46 Barb. 173. In an action of ejectment, under the Code, the plaintiff may attack for fraud the deed under which the plaintiff claims title. Phillips v. Gorham, 17 N. Y. 270. In that case the plaintiff was the heir at . law of the grantor, and vacating the deed would vest Mm with the legal title. In this case the plaintiff, if he establishes the forgery of the assignment of the sheriff’s certificate, and avoids the deeds made on the faith of it, must nevertheless procure a deed from the sheriff to himself before he is vested with the legal title. But, inasmuch as a necessary part of the relief to which he would be entitled against the defendants would be a judgment excluding them from any interest in the premises under such deeds, and their whole title thereunder would therefore be determined in this action, it would be a useless formality to require Mm to prosecute another action against any of them to recover
As the action is, therefore, in substance, to recover the possession of real property, and is an action of ejectment, the defendants would be entitled to a jury trial under the Code, which provides that an action of ejectment must be tried by a jury. Section 968. Parties defending in ejectment were always entitled to a jury trial as a matter of right, and it matters not how their title is attacked, whether upon equitable or legal grounds. Though not in form an action of ejectment, yet, if it is so in substance, the defendants are entitled to a trial by jury. Prayer for equitable relief does not affect the right. New York Life Ins. & Trust Co. v. Mayor, etc., of City of New York, 6 N. Y. St. Rep. 656. The verdict of the jury for the plaintiff finds all the facts essential to the right of possession, as well as the right to the equitable relief demanded, and he can apply for the proper judgment upon the verdict. It is suggested that no judgment awarding possession to the defendants can be granted in this action, although prayed for, because it is not technically an action of ejectment, and therefore defendants are not deprived of any substantial right by being denied a jury trial of the issues therein; and that they will have their trial by jury when the plaintiff, having secured his deed from the sheriff upon the judgment in this action, shall afterwards institute his action of ejectment. But of what avail will a jury trial be in such a case? The defendants will be concluded by the judgment in this action upon the whole dispute, and the action of ejectment, as before observed, will be a mere formality. If, before they are deprived of possession, defendants’ right must be determined by a jury, as the law seems to intend, they must have their jury in this action or never. No case cited by respondents establishes that an action which is in substance to recover possession of real property can be so framed as to give a court of equity exclusive jurisdiction, and deprive a defendant of his right to a jury trial. Actions by judgment creditors to set aside fraudulent transfers of the debtor’s property are not in point, as between a grantor and grantee the title of the latter is not affected in such actions, which are only brought to enable the creditor to collect his judgment out of the property. Nor is equitable jurisdiction, in actions in form or in substance for specific performance, or to set aside conveyances as between grantor and grantee, to be urged against this view. They were always of equitable cognizance. The right to recover here is based upon superior title, and whether it is to be established upon equitable grounds or not cannot affect defendants’ right to a trial jury. But the defendants may waive a jury trial, though entitled to it as a matter of right. Code, § 1009. He may waive it in other ways than those specified in that section. “The provision is not exclusive, and the same effect may be given to any evidence, either of conduct or acquiescence by the party, which in other cases would require a conclusion that a right designed for his benefit had been waived.” Mackellar v. Rogers, 109 N. Y. 468,