52 How. Pr. 62 | N.Y. Sup. Ct. | 1876
This is an action for the partition of lands. The plaintiff Louis F. Therasson, in his complaint, alleges that he, together with Francis W. Worth, now deceased, were, at the time of the commencement of this action, and until the death of Worth, on or about.the 17th day of September, 1873, seized in fee, and - held and were in possession of, as tenants in common, the parcel of land sought ,to be partitioned.
The-answer sets up, for a second defense, that the cause of action stated in the complaint did not accrue to the plaintiff within ten years from the commencement of this action.
For a third defense the answer of the executors and trustees sets up that the premises described in the complaint have been, for more than twenty years, and before the commencement of this action, held and possessed adversely to any title or claim of the plaintiff, and that there has been an actual, continued occupation of the premises under a claim of title, for more than twenty years before the commencement of this action, adverse to any claim or title of the plaintiffs or of those under whom they claim.
The answer of the defendant Anna Worth also denies the seizin and possession of the plaintiff, as alleged in the complaint. It alleges .that, at the time of the execution and delivery of the deed of conveyance to the plaintiff Louis F.
It thus appears that the answers of the defendants put in issue, distinctly and clearly, the question as to whether the plaintiff Louis F. Therasson has such title and possession of the premises as will uphold his action for partition. The statutes provide that when several persons shall hold and be in possession of any lands, tenements or hereditaments as joint tenants, or as tenants in common, in. which one or more of them shall have estates of inheritance or for life, or for years, any one or more of such persons, being of full age, may apply for a division and partition of such premises (2 R. S., p. 317, §1). Under this provision it has been held that the party instituting the proceedings must have an estate entitling him to immediate possession (Brownell agt. Brownell, 19 Wend., 367).
It is true it was said in that case that possession would follow the legal title, no adverse possession having been shown. The provisions of the statute, it was stated, do not require a “pedis possessio ” to entitle a party to institute proceedings in partition. It has also been decided that the party asking a partition of lands must not only have a present estate in the premises as a joint tenant or tenant in common, but that he must be in the actual or constructive possession of his individual share or interest (Burhams agt. Burhams, 2 Barb. Ch., 398). In that case the chancellor also held, that it was the intention of the revisers to exclude a party from instituting a partition suit for the division of premises held adversely to him until after he had obtained possession of his share of the premises or of some part thereof, by ejectment or otherwise. The chancellor also held that, “ if the com
But it appears that the fact of adverse possession' in that case was stated in the bill itself. In O’Dougherty agt. Aldrich (5 Denio, 388), it was decided that the plaintiff, to make out his case, must show that he was either in actual or constructive possession. This case also substantially holds that a question of title could not be tided in a suit for partition; that the plaintiff, in case of contention on that subject, must first establish his title by ejectment (Jenkins agt. Van Schaick, 3 Paige, 242; Clapp agt. Bromagham, 9 Cowen, 530). The case of Blakely agt. Calden (15 N. Y., 617), is, in some respects, in conflict with Brownell agt. Brownell, and other cases above cited, and holds that, although the plaintiff, in a partition suit, must be in the possession of the premises, yet it is not necessary that he should be the actual occupant or should hold an immediate present interest, and that an existing life estate, although covering the whole premises, will not prevent the remainderman from being deemed in possession within the meaning of the statute. Yet that case does not decide that when an adverse possession is set up it may be tried in the partition suit (Houell agt. Mills, 56 N. Y., 226, affirms Blakely agt. Calden). Although where the title is not in dispute partition is a matter of right, still it has been decided that a court of equity will not entertain a bill for partition when the legal title is disputed or doubtful. A court of law is the proper tribunal to determine that question (Hosford agt. Mervin, 5 Barb. Sup. Ct. Rep., 52).
In Clapp agt. Bromagham (supra), it was said: “Whether there be an adverse possession, is a question of fact for the
These cases were nearly all under the former system of judicial procedure, and it is claimed by the learned counsel for the plaintiffs, that under the present powers and jurisdiction of this court, where legal and equitable administration are both exercised, the objection above suggested is unavailing, and that a question of title may be examined and determined "in an action of partition. .But yet Florence agt. Hopkins (46 N. Y., 182), holds that where the premises are held adversely the party out of possession cannot try the question of his title in this form of action : “ The action is not for the recovery of the premises held adversely.”
And to the same effect is the late case of Schuyler agt. Mulford (59 N. Y., 430). Allen, J., says : “ The formcof action (partition) is at least a doubtful proceeding for the trial of adverse or hostile claims to real property. The title of the parties should he first established by the proper action, before proceedings taken for partition. There should be a tenancy in common, and an actual or constructive possession by the plaintiffs.”
In O'Dougherty agt. Aldrich (supra), it was held, as before observed, that the plaintiff must show that he was actually or constructively in possession. This puts the burden on him.
The plaintiffs’ title under the cases must be clear, unlitigated, without suspicion and freed from doubt. His possession must be actual or constructive, clearly and indisputably So.
The plaintiffs’ title and possession are controverted com
It is claimed by the defendant’s counsel that the evidence establishes that Bowe, the defendant’s grantor, in his lifetime, claimed and was in the actual possession of the entire premises. That he asserted acts of ownership to the entire exclusion of the plaintiffs’ grantor. That he leased the premises for long terms to various tenants, through a series of years, in his own name, and received the rents to his own individual use, exclusive of any claim in others, and that without dispute or question. That he individually bore and sustained all the burdens of taxation and assessments for local ■ improvements upon the lands for a period of over twenty years. That his possession, claims and acts were wholly inconsistent with any right or claim in others and amounted to a complete ouster. That the evidence shows that the pos
That raises questions of fact for a jury. In this view of the case I do not think that the action for partition can be now maintained.
I will let the action stand over for a time to enable the plaintiff to bring an action or actions of ejectment for the premises in question. And in case such action or actions be brought within two months, this suit is to remain in statu quo until the decision of such ejectment. If no such action be brought within two months, the complaint to be dismissed with costs.
Note.—The decision was subsequently modified, and upon the defendant’s application, the plaintiff consenting, an order was made for the framing of issues, by which the question of adverse possession was directed to be tried in the action, before a jury.