9 Bosw. 494 | The Superior Court of New York City | 1862
The Revised Statutes (vol. 1, p. 739, § 148) provide that every grant of Énds shall be absolutely void, if at the time of the delivery thereof they shall be in the actual possession of another claiming under a title adverse to that of the grantor; this is substantially the same as the Revised Laws of 1813. (Yol. I, 173, § 8.) The plaintiff’s case requires that such statute should be read as though it made such grant void only in a court of law, but allowed the full benefit of it to be obtained in a court of equity, by simultaneously calling upon the grantor to recognize the title of the grantee, and compelling the claimant under an adverse possession, to surrender it. The process of reasoning, by which it is proposed to accomplish this result, is apparently simple, and is as
The error of the reasoning on behalf of the plaintiff
, , It is not strictly accurate to say the plaintiff could, under the circumstances, of this case, before the adoption of the Oode, have recovered ,• for the complaint alleges that the defendant, Winter, refuses to bring any suit. Will it be pretended that any authority, before the Oode, sanctioned a suit brought by her, without his consent in his name, or her own, at her election ? If so, no section of the Oode has altered it, and there is no need of making Winter a party. The statute of 1862 would be in such case useless, and half the prayer for relief sotight. in this action would be superfluous. Undoubtedly that statute sanctions actions hereafter brought by the grantee in the grantor’s name; but it no where sanctions actions in the grantee’s name. Until that change was made, the plaintiff could not have obtained any relief in the grantor’s name, without his consent; and the .argument of the learned counsel, ixxWillimis v. Jackson, (5 Johns., 491,) was perfectly sound, with a single qualification, that a person in possession of land may hold it forever, provided the party dispossessed ■ does not bring .a suit in his own name. He cannot sell the right of action to others.-
Various anomalies are proposed in this case, as, for example, that Winter shall recover judgment in a suit in which -he is defendant, and lose the fruits of it forthwith by. a simultaneous judgment against him in the plaintiff’s
The complaint is also defective on the plaintiff’s own theory, since it does not allege that Kelly ever had adverse possession, but only that he claims that he claimed it. This would not make the grant to the plaintiff void, nor show any necessity to make Kelly a party to the relief sought against Winter.
But the complaint is defective on the merits, because no equity could formerly arise from a deed declared void, so far as it undertakes to confer any rights to sue a third person; and this action was commenced before the late statute, and is not iff the grantor’s name.
The order should be affirmed with costs.
White, J., concurred in affirming the order.