14 How. Pr. 439 | N.Y. Sup. Ct. | 1857
This is an action for the recovery of the possession of land. The plaintiff avers in her complaint that she has lawful, title as the owner in fee simple to the real estate in question, which is fully described; that the defendant is in possession of it, and unlawfully withholds possession thereof from her. The defendant demurred
It is unnecessary to consider the last cause of demurrer, as the omissions, if any, are suEciently specified in the first and second causes assigned. There were none others mentioned in the demurrer or on the argument, which are deemed material.
I am quite clear that the averment of title in the complaint is suEcient. It is general, it is true, that the plaintiff has lawful title, as the owner in fee simple, to the described real estate. This declares the nature and extent of the plaintiff’s estate; that she is the owner in fee simple. The defendant contends that she should state the requisite facts to show that she had real title. That was not necessary under the Revised Statutes, which provide, that in every case, other than in an action to recover dower, the plaintiff shall state in his declaration whether he claims in fee, or whether he claims for his own life or the life of another, or for a term of years. (2 R. S. 304, § 10.) That did not require a statement of any other facts to show that the plaintiff was entitled to the possession of the land. Indeed, if the general allegation be true, the plaintiff would be entitled to the possession,-unless the defendant could show a right of possession in himself. The allegation of title being of something which the plaintiff would be bound to prove on the trial, in order to sustain his action, relates to the subject matter of the action, and the provision of the Revised Statutes as to that is still applicable. (Code, $ 455.)
I have decided, on a former occasion, that it was unnecessary for the plaintiff to state, in his complaint, the sources of his title, as it would lead to prolixity, and must end in a general averment somewhere, and I am not aware that this decision has been overruled in any branch of this court, or in the court of appeals.
It is true, that the Revised Statutes also provide, that it
The Code of 1848 required that all pleadings should be verified by the oath of the parties, and, of course, that they should be true. In that, there was no exception of the action of ejectment. If, under that, a plaintiff in an action for the recovery of land might have averred, in his complaint, that he had been
It is quite clear that, under the first Code, those averments could not have been required. If not, it could not have been intended to renew the necessity of" making merely formal and, sometimes, false statements in the complaint, which might still be verified, in the Code of 1849, or in any of its subsequent amendments. Indeed, the 455th section excludes mere matters of form from what it retains in actions to recover the possession of real estate; and the allegation in question is, I think I have shown, merely formal.
The charge that the defendant unlawfully withholds the possession of the premises, is undoubtedly very general, and states a legal conclusion. It was sanctioned, however, by the Revised Statutes, and when coupled, as it is in this case, with the allegation that the plaintiff is the owner in fee simple, is sufficiently explicit. It states facts to which the characteristic may w’ell be applicable.
It would be impossible for the plaintiff" to negative particularly every way in which one might lawfully hold possession of the land of which another was owner in fee simple. Where it is averred that the plaintiff owns the land in fee simple, and that the defendant is in possession, and unlawfully withholds possession from the plaintiff, all is asserted which it is necessary for the plaintiff to prove to entitle him to judgment. Under such circumstances, if the defendant has any right of possession which could interfere with the plaintiff’s claim, he is bound to show it affirmatively, or he must fail.
My impression is, that mere formalities, and especially those Including falsehoods, are abolished by the Code, and truth sub
The judgment at special term should be reversed, and the plaintiff should have judgment upon the demurrer, with liberty to the defendant to answer in twenty days, on the payment of costs.