10 Wend. 414 | N.Y. Sup. Ct. | 1833
By the Court,
The defendant asks for a new trial on the following grounds : 1. It is said that no ouster was proved, and that the ouster should have been shewn to have been made before the 3d of May, 1825, the day laid in the declaration; 2. That the plaintiff’s title was not proved as stated in his declaration; 3. That demand should have been made of some person interested, and not merely of the tenant in possession; and 4. That the plaintiff shewed no proof of an entry by himself or his ancestors.
The declaration states, that on the 29th January, 1825, the plaintiff was possessed of the premises, and that on the 3d of May, in the same year, the defendant entered, and expelled and ejected the plaintiff; and it is contended that the proof should have shewn an ouster on that day. By the practice of this court before the revised statutes took effect, a demise was laid in the declaration from the owner to a nominal person, in whose name the action was brought. Then the day was so far material that the demise must be subsequent to the accruing of the title of the claimant; now it is sufficient for the plaintiff to aver in his declaration that on some day therein to be specified, and which shall be after his title accrued, he was possessed of the premises in question, describing them; and being so possessed thereof, the defendant after-wards, on some day to be stated, entered into such premises, and that he unlawfully withholds from the plaintiff the possession thereof. 2 R. S. 304, § 7. This seems to be in accordance with the former practice, so far as it may be applicable. The averment of title must be laid subsequent to the title actually accruing, and an ouster must be stated on some day afterwards. On the trial, however, the plaintiff is not bound to prove the accruing of his title precisely as laid; it is
It is not necessary for the plaintiff to prove an actual entry under title, nor the actual receipt of any profits of the premises demanded; but it shall be sufficient for him to shew a right to the possession of such premises at the time of the commencement of the suit, as heir, devisee, purchaser, or otherwise, 2 R. S. 306, § 25. It is evident the legislature intended that title in the plaintiff and possession by the defendant were to be the subjects of inquiry upon the trial. The plaintiff has done all which is required of him as to proof of title ; he has shewn title to one eighth in himself at the commencement of the suit, and that such title existed anterior to the time when he avers in his declaration that he was possessed of the premises in question. If, as the plaintiff’s counsel contends, no question can arise in this case as to the rights of tenants in common, then the plaintiff has shewn a clear right to recover, and the defendant has shewn nothing in answer to it; and according to the case of Jackson v. Smith, 13 Johns. R. 406, the defendant is estopped from saying that he holds as tenant in common with the plaintiff. He is in possession of the whole premises, claiming the whole, under a warranty deed from a stranger to the defendant’s landlord, and his possession is adverse as against the plaintiff and the other tenants in common.
But if it were not so, the plaintiff has shewn enough to recover against a tenant in common. On this point also the revised statutes have not altered what was before the practice of the court. The revised statutes declare that if the action he brought by one tenant in common against his co-tenant, the plaintiff shall be required to prove, on the trial of the cause, that the defendant actually ousted sucii plaintiff, or did some other act amounting to a total denial of his right as such coteuant, 2 R. S. 306, 7, § 27. According to the former practice, it is said an actual ouster must be proved, but this never meant a manual force, applied to the plaintiff who was in actual occupation; it was sufficient if, upon demand by the plaintiff, the defendant refuse to pay his share of the proceeds, or deny his title, saying he claims the whole, and continue in possession. Adams on Eject. 56. Cowp. 217. In this case
It is also objected that the plaintiff claims one eighth of the premises, but shews only a right to one eighth of two thirds, the defendant being in possession of the dower of the widow of Jabez Gorham, the elder. To this the plaintiff answers, that the widow’s dower can in no manner affect this suit; that she cannot enter until her dower is assigned to her, and if she cannot enter herself, her assignee cannot; and that the right being in the heir, he must recover according to that right. At the common law, a widow cannot enter until her dower is assigned to her, because before assignment it is not known what part she shall have for her dower. Co. Litt. 37, b. She is not tenant in common with the heir; her right rests in action only; and after the expiration of forty days, the heir can expel her, and put her to her suit. Co. Litt. 34, b. This was held to be the law in Jackson v. O’Donaghy, 7 Johns. R. 247, 8, which was an action against the widow by the owner of the estate, which was subject to the dower of the defendant. It was held that the widow was not entitled to possession until her dower was assigned, but only fdr forty days; if her dower is not assigned to her within the forty days, she has her right of action. By our statutes, either she or the heir may institute proceedings to have the dower assigned; but neither at common law nor by statute is she entitled to possession after her quarantine, until her dower shall be assigned to her. In Jackson v. Vanderheyden, 17 Johns. R. 167, it was again decided that dower could not be recovered in an action of ejectment until it has been assigned. The revised statutes now give the action of ejectment for dower before assignment of dower, and as a substitute for the action of dower which is abolished, 2 R. S. 303, 343. If the action be brought before admeasurement, and a recovery is had, commissioners are to be appointed to make admeasurement, and possession shall be given accordingly, 2 R. S. 311, 12, § 55.
New trial denied.