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CHAPTER IV.

Actions to determine Conflicting Claims to Real Property, and

for Waste and Nuisance.

Section 449. Actions to determine claims to real property, how prose

cuted. 450. Action of waste abolished. Waste, how remediable. 451. Provisions of revised statutes applicable to action for waste

under this act. 452. When judgment of forfeiture and eviction to be given. 453. Writ of nuisance abolished. 454. Remedy for injuries heretofore remediable by writ of nui

sance.

§ 449. Actions to determine claims to real property, how prosecuted.

Proceedings to compel the determination of claims to real property, pursuant to the provisions of the revised statutes, may be prosecuted by action under this act, without regard to the forms of the proceedings as they are prescribed by those statutes.

a. Action.-An action to determine conflicting claims to real property is governed by the same rules as other actions (see Peck v. Browon, 26 How. 350; Laws 1855, p. 943; Hammond v. Tillotson, 18 Barb. 332; Mann v. Provost, 3 Abb. 446).

8. The provisions of the revised statutes as to conflicting claims to real estate, and this section 449 of the code, now apply to married women (Laws 1864, ch. 219), and to corporations (Laws 1854, p. 276).

c. Who may maintain the action (see Onderdonk v. Mott, 34 Barb. 106). Pleadings (see Hager v. Hager, 38 Barb. 92).

d. Appeal.-In case of a trial, in the proceedings to determine conflicting claims, either party conceiving himself aggrieved may appeal as in personal actions under the code (Laws of 1855, p. 945, § 11).

e. Laws amended.-The provisions of the revised statutes relative to the determination of claims to real property (2 R. S. 313) were amended by Laws of 1848, p. 67; Laws of 1854, p. 276 ; Laws of 1855, p. 943; Laws of 1860, ch. 173; and Laws of 1864, ch. 219.

f. Notice.—The proceedings may still be had by notice under the statute (Barnard v. Simms, 42 Barb. 304; Burnham v. Onderdonk, N. Y. Transcript, June 10, 1870).

$ 450. Action of waste abolished. Waste, how remediable.

The action of waste is abolished; but any proceedings heretofore commenced, or judgment rendered, or right acquired, shall not be affected thereby. Wrongs heretofore remediable by action of waste, are subjects of action as other wrongs, in which action there may be judgment for damages, forfeiture of the estate of the party offending, and eviction from the premises.

See Harder v. Harder, 26 Barb. 409; Robinson v. Wheeler, 25 N. Y. 252.

$ 451. Provisions of revised statutes applicable to action for waste under this act.

The provisions of the revised statutes relating to the action of waste, shall apply to an action for waste, brought under this act, without regard to the form of the action, so far as the saine can be so applied.

$ 452. When judgment of forfeiture and eviction to be given.

Judgment of forfeiture and eviction shall only be given in favor of the person entitled to the reversion, against the tenant in possession, when the injury to the estate in reversion shall be adjudged in the action to be equal to the value of the tenant's estate, or unexpired term, or to have been done in malice.

$ 453. Writ of nuisance abolished.

The writ of nuisance is abolished; but any proceeding heretofore commenced, or any judgment rendered, or right acquired, shall not be affected thereby.

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$ 454. Remedy for injuries heretofore remediable by writ of nuisance.

Injuries heretofore remediable by writ of nuisance, are subjects of action, as other injuries; and in such action there may be judgment for damages, or for the removal of the nuisance, or both.

a. An action pursuant to this section is a substitute for the statute remedy by writ of nuisance, and the plaintiff must aver in his complaint all that was before requisite to sustain an action of that nature (Ellsworth v. Putnam, 16 Barb. 565 ; see Hubbard v. Russell, 24 Barb 404 ; in Brown v. Woodrovrth, 5 Barb. 550; Hess v. Buffulo &c. R. R. Co. 29 Barb 391 ; Brady v. Weeks, 3 Barb. 157; Clark v. Storrs, 4 Barb, 562; Bronon v. Cayuga R. R. Co. 12 N. Y. 486). CHAPTER V.

General Provisions relating to Actions concerning Real

Property.

$ 455. Provisions of revised statutes applicable thereto.

The general provisions of the revised statutes relating to actions concerning real property, shall apply to actions brought under this act, according to the subject matter of the action, and without regard to its forın.

a. Ejectment.-See 2 R. S. 303 (tit. 1, ch. 5, part 3); Laws 1840, ch. 239; Laws 1847, ch. 337; Laws 1846, ch. 159. Section 18 of the aforesaid title (part 3, ch. 5, tit. 1), providing that no actual entry under title need be proved, is not repealed by the code, but is expressly retained by section 455 (Linurence v. Williams, 1 Duer, 587); and sections 8, 30, 34, of the same title, are also retained, and are still in force (Budd v. Bingham, 18 Barb. 498). So is section 31 (Lang v. Wilbraham, 2 Duer, 171), and section 37 (Rogers v. Wing, 5 How. 50; Lang v. Ripke, 1 Duer, 701).

6. When ejectment lies.— The action of ejectment will lie whenever a right of entry exists and the interest is of such a character that it can be held and enjoyed, and possession thereof delivered in execution of a judgment for its recovery (Rowan v. Kelsey, 18 Barb. 484; Child v. Chappel, 9 N. Y. 246). It will not lie for a mere easement (Wilklor v. Lane, 37 Barb. 244). It lies against a railroad company for laying their rail-track over land dedicated by the plaintiff to public use as a street, and running their cars on such track (Wager v. Troy Union R. R. Co. 25 N. Y. 526; Adams v. Saratoga R. R. Co. 24 N. Y. 655). Ejectment will lie for land under water, granted by the commissioners of the land office, for the purpose of erecting docks, &c., for commercial purposes (Champlain and St Laurence R. R. Co. v. Valentine, 19 Barb. 484). A contract dated at a future day, leasing lands for a term, commencing at such day, gives the lessee, when the day arrives, the right of possession and to maintain ejectment against a stranger wrongfully withholding (Trull v; Granger, 8 N. Y. 115; see Spencer v. Tobey, 22 Barb. 260). But under a naked contract of purchase which is silent on the suhject of possession, the purchaser acquires no right to the possession and no right of entry, and cannot maintain ejectment (Kellogg v. Kellogg, 6 Barb. 116). A right of possession in presenti is necessary and all that is necessary to maintain ejectment (Trull v. Granger, 8 N. Y. 115; The People v. Mayor of N. Y. 10 Abb. 113; Hunter v. Sandy Hill, 6 Hill, 411; Bryan v. Betls, 27 Barb. 503 ; McLean v. McDonald, 2 Barb. 534). The possession of real estate is prima facie evidence of the highest estate in the property, namely, a seisin in fee (Hill v. Draper, 10 Barb. 454; Barnhart v. Greenshields, 28 Èng. Law and Eq. R. 83; Maltonner v. Dimmick, 4 Barb. 566). Ejectment does not lie against a mortgagee in possession (Bolton v. Brewster, 32 Barb. 390); nor by a mortgagee against his mortgagor (Sahler v. Signer, 37 Barb. 329); nor against one who erects a gutter on his own premises projecting over the land of his neighbor (Aiken v. Benedict, 39 Barb. 400); nor against a municipal corporation for using a street as a public street (Coroenhoven v. City of Brooklyn, 38 Barb. 9). Ejectment lies against one who enters into possession of land of another, with his assent, under a contract

1

REAL PROPERTY.

$ 455.]

to purchase the same after default in payment of the purchase money (Powers v. Ingraham, 3 Barb. 576).

a Where an owner of land conveys the same to another, excepting the portions included in the highway, he may maintain an action of ejectment against the grantee for encroachments upon the highway or for an exclusive occupation of it, by the latter (Etz v. Daily, 20 Barb. 32).

b. Ejectment for nonpayment of rent.-Ejectment for nonpayment of rent lies by assignee of lease (Main v. Green, 32 Barb. 448); or of the rent (Van Rensselier v. S'ingrrland, 26 N. Y. 59)); by the personal representatives of the assignee of a life lease (Mosher v. Yost, 33 Barb. 277); and generally as to ejectment for nonpayment of rent, see Van Rensselaer v. Smith, 27 Barb. 144; Van Resselaer v. Jones, 2 Barb. 643; Mayor of N. Y. v. Campbell, 18 Barb. 156. In an action to recover possession of demised premises on the ground of a forfeiture of the lease by nonpayment of rent, a demand of the rent need not be alleged (Maym &c. of N. Y. v. Campbell, 18 Barb. 156). The statute authorizing the vacating of the judgment, and a new trial in ejectment, does not apply to ejectment for nonpayment of rent, as the latter is but a substitute for a re-entry, which is always final. Especially is it not applicable to such an action where the judgment is rendered upon demurrer, and there is no leave to answer over ( Christie v. Bloomingdale, 18 How. 12).

c. In an action to recover possession of demised premises, for nonpayment of rent, the complaint stated that the p'aintiffs on, &c., were the owners in fee, and possessed of all that certain water-lot, vacant ground, and soil under water, called, &c. [describing it), and that being so seized and possessed thereof, the plaintiffs did on that day sell and convey to R. M., and to his heirs and assigns forever, the said premises with the appurtenances, subject to the payment therefor by said R. M., his heirs and assigns, on the first day of May then next, and yearly and every year on the first day of May forever, of the rent of —, with a clause of re-entry in case of nonpayment of rent, and then averred that the defendant Dingee was in the possession of said premises, and that D, P. C and J. G. S. claimed to have some title or interest in the premises by the purchase of the said R. M.'s title, and that R. M. had not, nor had the defendants or either of them, paid the aforesaid rents at the time or times aforesaid, but that the same was wholly due and unpaid since, &c. ; wherefor the plaintiffs claim judgment, &c. To this the defendants demurred that it did not contain facts sufficient to constitute a cause of action, in this: that (1) it did not allege a demand of the rent; nor (2) notice of an intention to reenter. But at a general term of the supreme court the complaint was held sufficient (Mayor of N. Y. v. Campbell, 18 Barb 156).

d. Parties plaintiff.-In an action to recover land, there cannot properly be joined several plaintiffs claiming under distinct titles for distinct interests (The People v. Mayor of N. York, 10 Abb. 111). In ejectment for lands held in common, it is not necessary that all the tenants in common should unite in the action, except when the action is a substitute for a writ of right (Kellogg v. Kellogg, 6 Barb. 117). The grantee of land held adversely cannot maintain an action in his own name ( Lowober v. Kelly, 17 Abb. 452; and see ante, $$ 111, 118). A wife cannot maintain ejectment against her husband (Gould v. Gould, 22 How 441); but the lessee of a married woman may maintain ejectment against the husband (Vandervoort v. Gould, 3 Trans. App. 57).

e. Attorney for plaintiff to produce his authority.—(2 R. S. 305, $$ 17-21.) – This provision applies to actions commenced under the code (Honoaril v. Hovoard, 11 How. 80). What is a sufficient authority to the attorney? (id.) The order must direct that the authority be produced to the officer granting the order, and state the place at which it is required to be presented (Turner v. Daris, 2 Den. 187; and see 10 Wend. 568).

f. Ejectment by husband and wife.-In an action to recover property, the alleged separate estate of the wife, she must sue alone, without her husband (Hillman v. Hillman, 14 How. 459). In a joint action by husband and wife for the recovery of land, to which they claim title in right of the wife, no separate judgment can be given in favor of the wife and against the husband. They must recover jointly or not at all (Bartor v. Draper, 5 Duer, 130). Where a married woman had the actual possession of land held by her for her separate use, and has been wrongfully ejected therefrom, she may maintain in her own name an action to recover the possession without joining her husband (Darby v. Gallaghan, 16 N. Y. 71).

a. Complaint.-A complaint which states (1), that on some day specified, after his title accruel, he was possessed of the premises in question ; (2) a description of the premises with convenient certainty, “ so that from such description possession of the premises claimed may be delivered; (3) that being so possessed, the defendant afterward, on a sp cified day, entered into said premises. and (4) unlawfully withholds possession from the plaintiff; (5) to his damage in the sum of — " is sufficient (2 R. S. 304. SS 7, 8; Warner v. Nellgari. 12 How. 402; Ensign v. Shermın, 14 id. 439; The People v. Mayor of N. Y. 17 id. 61; 8 Abb. 7; 28 Barb. 240 ; and see Garner v. Manhattan Build. A880. 6 Duer, 539 ; The People v. The Mayor, 7 Abb. 7; Sanders v. Leary, 16 How. 308). A complaint that plaintiffs have lawful title as owners in fee simple of the premises, and that the defendant is in possession and unlawfully withholds the same,-held insufficient (Payne v. Treâdrell, 5 Cal. R. 310); and where the complaint averred that the premises were conveyed by F. P. to the plaintiff by a warranty deed, and that by virtue of that conveyance, the plaintiff was seized of the premises, and had a lawful title thereto, and that the defendant was in possession, and unlawfully withheld the same, it was on demurrer held insufficient (Lawrence v, Wright, 2 Duer, 674). The allegation that the property was conveyed to the plaintiff was not sufficient to show a title (Gardner v. Hart, 1 N. Y. 529); it is sufficient to allege “the plaintiff has the lawful title as the owner in fee” (Sanders v. Leary, 16 How. 308); and an allegation of possession may be sufficient (Norris v. Russell, 5 Cal. R. 249; Hutchinson v. Perley, 4 id. 33).

6. The complaint should describe the premises with convenient certainty, ** so that from such description possession of the premises claimed might be delivered” (2 R. S. 304, $ 8). Where the description was of premises in the town of Putnam, bounded as follows: “North by lands of plaintiff, east by lands of plaintiff, south by lands of defendant, and west by lands of plaintiff," the court treated it as if no premises were mentioned, and dismissed the complaint on the trial, with leave to plaintiff to amend (Budd v. Bingham, 18 Barb. 494). And where a complaint described the premises as about fifty acres in the southern part of a lot, which was fully and perfectly described,held that this was a sufficient description, but that if necessary the complaint could be amended by striking out the word about (St. John v. Northrup, 23 Barb. 26). If the complaint fails to describe the premises sought to be recovered it is not ground for dismissing the complaint on the trial. The court may on the trial permit an amendment (Olendorf v. Cook, 1 Lans. 37; Russell v. Conn, 20 N. Y. 81).

c. The complaint should state the nature and quality of the estate claimed, and if defective in this respect, the remedy is by demurrer (Clark v. Crego, 47 Barh. 599). The complaint must allege that the “possession is unlawfully withheld from plaintiff;" therefore, a complaint which after alleging plaintiff's title, and describing the premises, continued as thus : afterward defendant claimed and now claims tle to or some interest in the northern portion of said premises, and exercises acts of ownership over the same, in violation of the right of the plaintiff, -was held to be defective (Taylor v. Crane, 15 How. 362), as not showing any unlawful withholding of the premises from the plaintiff (id.)

d. The plaintiff may unite in one complaint a claim to recover the premises, with a claim for damages for withholding or injuring them (Vandervoort v. Gould, 3 Trans. App. 57 ; Livingston v. Tunner, 12 Barb. 481; The People v. Mayor of N. Y. 17 How. 57 ; 28 Barb. 240; 8 Abb. 7; Hotchkiss v. Auhim R. R. Co. 36 Barb. 600; Holmes v. Davis, 21 Barb. 273). But the plaintiff cannot in one action claim recovery of the premises, a confirmation of his title, and

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