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a decree for a conveyance of an outstanding title (Lattin v. McCarthy, 8 Abb. 225). But in an action to recover the possession of land, the plaintiff may attack a deed under which the defendant claims title, as well upon equitable as upon legal grounds (Phillips v. Gorham, 17 N. Y. 270); semble, trespass and ejectment and trespass quare clausum fregit cannot be joined (Budd v. Bingham, 18 Barb. 494 ; Smith v. Halleck, 8 How. 73). The section of the revised statutes declaring that the declaration in ejectment may contain several counts, and that several parties may be named as plaintiffs jointly in one count and separately in others, relates merely to the remedy, and is repealed by the code (St. John v. Pierce, 22 Barb. 362).

a. Before an action can be brought by an individual to recover the possession of lands conveyed by him during his infancy, he must make an entry on the lands, or do some open act of disaffirmance of such deed, and this act of disaffirmance must be averred in the complaint (Voorhies v. Voorhies, 24 Barb. 150).

6. Defendant.-If the premises are actually occupied, the actual occupant must be made defendant ( Taylor v. Crane, 15 How. 360; Lucas V. Johnson, 8 Barb. 244; Ellicott v. Mosier, 11 id. 574; Schuyler v. Marsh, 37 Barb. 350; The People v. Ambrecht, 11 Abb. 97; Pulen v. Reynolds, 22 How, 353; Van Horn v. Everson, 13 Barb. 526 ; see Waldorph v. Bortel, 4 How. 358; Redfield v. Utica & Syracuse R. R. Co. 25 Barb. 54). The several occupants of a building may be sued jointly (Pearce v. Ferris, 10 N. Y. 280 ; Pearce v. Colden, 8 Barb. 522).

c. Ejectment for vacant premises may be brought against one claiming title. But the claim must be more than “ an idle declaration that he owns the land” (Banyer v. Empie, 5 Hill, 48; Lucas v. Johnson, 8 Barb. 244; McGregor v. Comstock, 16 Barb. 428; Sheever v. McGraw, 12 Wend. 558; Abeel v. Van Gelder, 2 Trans. App. 99; Foxgate v Herkimer Manuf. Co. 12 N. Y. 580; and see ante, $ 118). A person not in possession, yet claiming an interest, need not necessarily be made a party (Van Buren v. Cockburn, 14 Barb. 118). The possession must be exclusive of the public, to authorize the action against an individual as an occupant (Redfield v. Utica & Syracuse R. R. Co. 25 Barb. 54). In an action of ejectment brought by an individual to recover land conveyed by him during infancy,—held that he could not in one action sue his grantee and the grantees of such first grantee (Voorhies v. Voorhies, 24 Barb. 152).

d. The provision of the revised statutes (2 R. S. 307, $ 29), that when the action is against several defendants, if it appear on the trial that they occupy distinct parcels in severalty, plaintiff must elect against which party he will proceed, and a verdict be rendered in favor of the other party, is not repealed by the code (Dillaye v. Wilson, 43 Barb. 261).

e. Defense by landlord.—Landlord may be admitted to defend on showing he is landlord, or has a privity of estate or interest with the defendant (Godfrey v. Toronsend, 8 How. 398).

f. Death of plaintiff.—Where the plaintiff in an action to recover real property dies, and his heir applies for leave to continue the action, it is not necessary that the widow should join in the petition, or be made a party (Ash v. Cook, 3 Abb. 389).

g. In ejectment by several plaintiffs, if, after judgment for the plaintiffs, one of them dies, execution may issue without any scire facias, but it must be in the names of all the defendants (Howell v. Eldridge, 21 Wend. 678).

h. Death of sole defendant.—The death of a sole defendant before verdict abates the action, and it cannot be continued against the heirs of the defendant (Mosely v. Mosely, 11 Abb. 105; Kissam v. Hamilton, 20 How. 369; see Laws 1865, ch. 357).

i. Change of occupancy of premises pending the action. - Where, pending the action for the recovery of real property, all the right, title, and interest of the defendant in the premises is, by operation of law, or by the death of the defendant, transferred to another, who enters into and holds possession thereof, the original cause of action does not continue against the succeeding occupant, and he cannot be substituted as a party (Mosely v. Albany North. R. R. Co. 14 How. 71; Putnam v. Van Buren, 7 id. 33). EJECTMENT.

a. Where plaintiff's title terminates pending the action.(2 R. S. 308, $ 31). The provision for the case of a plaintiff's title expiring before the trial is still in force. Where the plaintiff's title so expires, the court may render judgment for the plaintiff for damages for the withholding possession and against him for the recovery of possession. No supplemental answer is necessary to give a defendant the benefit of this provision (Limg v. Wilbraham, 2 Duer, 171 ; see Van Rensselaer v. Owen, 48 Barb. 61; 33 How. 12; Olendorf' v. Cook, 1 Lans. 37).

6. Answer.-It is no defense to an action of ejectment that since the commencement of the action the plaintiff has taken possession of the premises (Tyler v. Canaday, 2 Barb. 160). When the complaint alleges title, and that the premises are in the possession of the defendant, and demands possession, and also alleges that the defendant unlawfully withholds the same, an answer which merely denies possession and unlawful withholding, does not put in issue plaintiff's title, and no question of adverse possession arises. If it was the defendant's intention to put in question the validity of the deed to plaintiff, on the ground of an adverse possession, at the time, he should, by his answer, have set up title in himself, or title out of plaintiff (Ford v. Sampson, 17 How. 447; 8 Abb. 332; 30 Barb. 183). In an action of ejectment by the people, an answer denying the plaintiffs' title, but admitting that defendant had taken possession of the premises, and held the same adversely to the plaintiffs, and alleging that no right or title had accrued to the plaintiffs within forty years, and that neither the plaintiffs nor those through whom they claimed had received the rents and profits of the premises within forty years, was on demurrer held insufficient, and that to have made it sufficient, it sbould have set up an adverse possession of forty years in the defendant ( The People v. Van Rensselaer, 8 Barb. 190; and see The People v. Livingston, id. 253; The People v. Arnold, 4 N. Y.508).

c. Defenses.—The fact of adverse possession, to constitute a title in defendant and a defense against the plaintiff

, must be actual and hostile, and not a mere trespass (Miller v. Platt, 5 Duer, 273; see Kent v. Harcourt, 33 Barb. 491; Champlain R. R. Co. v. Valentine, 19 Barb. 484; Fosgate v. Her. kimer Manuf. Co. 9 Barb. 287; McGregor v. Comstock, 16 Barb. 427). Adverse possession is good only for the part of the premises actually occupied ( Corning v. Troy Iron Fact. 34 Barb. 529; 22 How. 212), and the defendant may interpose an equitable defense (see Miller v. Peet, 5 Duer, 284 ; Crary v. Goodman, 12 N. Y. 266 ; Chade v. Peck, 21 N. Y. 581; Traphagen v. Traphagen, 40 Barb. 537; Thurman v. Anderson, 30 Barb. 621; McCray v. McCray, 30 Barb_633; Requa v. Holmes, 19 How. 430 ; Corkhill v. Landers, 44 Barb. 218). But to avail himself of such a defense, it must be pleaded (Dewey v. Hoag, 15 Barb. 365; and see 18 N. Y. 529). See Anster.

d. Under a general denial, defendant may show title out of plaintiff (Raynor v. Timerson, 46 Barb. 518).

e. Plaintiff's proof.—Where plaintiff's title is put in issue by the answer, to entitle him to recover he must show either, (1) a prior actual possession, or (2) a paramount legal title (Bartov v. Draper, 5 Duer, 130; Layman v. Whiting, 20 Barb. 559), and right to immediate possession (Pierce v. Tuttle, 53 Barb. 155). He cannot recover upon an equitable title (Wright v. Douglass, 3 Barb. 556; Murray v. Walker, 31 N. Y. 399; Louber v. Kelly, 17 Abb 452; Peck v. Neuton, 46 Barb. 173). A cestui que trust of a trust not prescribed by statute has a legal title and may maintain the action (Van Deusen v. Trustees of Presb. Cong. 3 Keyes, 550 ; see contra, 47 Barb, 599). Where plaintiffs claim under a will they must show title in the testator (Enders v. Sternburgh, 52 Barb. 222). Proof of title in plaintiff (Downing v. Miller, 33 Barb. 386; The People v. Trinity Church, 30 Barb. 537 ; 22 N. Y. 44; (Clute v. Voris, 31 Barb, 511; Lane v. Gould, 10 Barb. 254; Satford v. Hynds,

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39 Barb. 625). In ejectment by one tenant in common against another, an actual ouster must be shown, or some act amounting to a total denial of his right (Edwards v. Bishop, 4 N. Y. 61; see Sparks v. Leavy, 19 Abb. 364; 2 R. S. 341, § 11). When the people sue they must show title in them (The People v. Booth, 32 N. Y. 397).

a. New trial.-The revised statutes (2 R. S. 309, § 37) provide “ that the court in which such judgment (i e., judgment on verdict in ejectment) shall be rendered, at any time within three years thereafter, upon the application of the party against whom the same was rendered, his heirs, and assigns, and upon payment of all costs and damages recovered thereby, shall vacate such judgment and grant a new trial in such cause. This provision remains in force (Rogers v. Wing, 5 Hov. 50; Lang v. Ropke, 1 Duer, 701; Cook v. Passage, 4 How. 360). The statute is imperative, and an order granting a new trial pursuant to it is not appealable to the court of appeals (Evans v. Millard, 16 N. Y. 619). The statute applies only where there has been a trial by jury and a verdict (see Chautauque Co. B'k v. White, 23 N. Y. 349). The three years are to be computed from the first judgment in the action (id)

b. The statute provides further for a second new trial in the discretion of the court, and the court may grant a third trial, but each party cannot have two new trials (Bellinger v. Martindale, 8 How. 113). When the court will not grant a third new trial in ejectment (Wright v. Milbank, 9 Bosw. 672). The power to grant a new trial does not extend to an action to set aside a deed for fraud (Shumway v. Shumway, 1 Lans. 474).

See Ejectment for nonpaymeut of rent.

c. Restitution.-Where judgment for the plaintiff is reversed and a new trial ordered, if plaintiff has gone into possession, a restitution to the defendant of the premises will be ordered, as of course, but without prejudice to the rights, if any, of a purchaser pendente lite (Costar v. Peters, 4 Abb. N. 8. 53).

d. Mesne profits.—Where a recovery is had in ejectment, and the plaintiff is put in possession, if the judgment is subsequently reversed and the premises restored to defendant by a writ of restitution, the action by the defendant for the rents and profits during plaintiff's possession is in the nature of an action for use and occupation (Shelden v. Van Slyke, 16 Barb. 26; and see 21 id. 265; Mattice v, Lord, 30 Barb. 386).

e. The remedy for mesne profits after recovery in ejectment is by action, not by suggestion (Holmes v. Daris

, 19 N. Y. 488). Although the form of the remedy is changed, the principles of the provisions of the revised statutes in relation to the recovery of mesne profits remain in force, and are to be applied to an action for mesne profits after judgment in ejectment, though in form like the old action of trespass (id.)

f: Proof in action for mesne profits and amount of damage, and form of complaint, see Ainslie v. Mayor of N. Y. 1 Barb. 168.

g. On a suggestion for mesne profits, the plaintiff could recover only for the six years next before the filing the suggestion, not for the six years succeeding the commencement of the action (Budd v. Walker, 9 Barb. 493).

h. Where the action is against the tenant, and he gives notice thereof to his landlord, the latter is bound by the judgment, and an action may be maintained against him for mesne profits, without any other recovery in ejectment against him (Van Alstyne v. McCarty, 51 Barb. 326).

i. Judgment.-Judgment in an action of ejectment, where no new trial is granted, concludes the parties to the action, and all persons claiming under them by title accruing after the commencement of the action (Ainslie v. Mayor of N. Y. 1 Barb. 169); and as to the effect of the judgment (see Beebe v. Elliott, 4 Barb. 457; Briggs v. Wells, 12 Barb. 567 ; Dunckle v. Wiles, 6 Barb. 515; Wilson v. Davol, 5 Bosw. 619; Laws 1862, ch. 485).

j. Verdict-recovery.—The provision of the revised statutes as to the form of the verdict in ejectment must be considered as modified by this section. If the plaintiffs, collectively, are entitled to the whole of the property claimed, then a general verdict for the recovery of the whole property would be sufficient. If only a moiety belonged to them, collectively, a general verdict for such moiety would be proper ( Wood v. Staniels, 3 Code Rep. 152). Where the plaintiff proves title to a smaller quantity of land than he has claimed in his complaint, he may recover according to ihe proof, and the complaint may be amended accordingly (Kellogg v. Kellogg, 6 Barb. 116; and see 2 Barb. 156, 330, 613). And where in an action against four defendants to recover the possession of land, the complaint stated that one of them unjustly claimed title to the premises, and the others were in possession under him, and that the defendants unjustly withheld the possession from the plaintiff'; the answer merely denied the allegation as to withholding possession, and alleged that the one defendant was the owner of and entitld to the premises; on the trial it was proved by the defendants, subject to objection, that they occupied, severally, distinct parcels of the premises,—held, that under the pleadings, the plaintii' was entitled to recover against all the defendants. If there was an improper joinder of parties, the objection should have been raised by demurrer or answer (Foxgate v. Herkimer Manufacturing Co, 12 N. Y. 580). a. Execution. The court will not, on motion of the plaintiff

, order the sheriff to execute a writ of habere facios possessionem in a particular manner (Bowie v. Brahe, 4 Duer, 676 ; 2 Abb. 161). Stay of execution (The People v. Lee, 7 How. 49).

6. Where the plaintiff fails in an action for the recovery of real property, and for damages for the withholding, he is not liable on there turn of an execution unsatisfied, to an execution against his person for the costs of the action (Merritt v. Carpenter, 2 Keyes, 462).

c. Receiver.-The court will not, pending an action of ejectment, at the instance of the plaintiff, appoint a .receiver of the rents of the premises in suit (Thompson v. Sherrard, 35 Barb 593 ; 12 Abb. 426 ; 22 How. 155; The People v. Mayor dc. of N. Y. 10 Abb. 111; and see Willis v. Corlies, 2 Edw. Ch. R. 281 ; Congden v. Lee, 3 id. 304; Purker v. Moore, id, 234 ; Cairns v. Chabert, id. 312). In Ireland v. Nichols (37 How. 222), the superior court, New York, made an order for a receiver. The case was somewhat peculiar, and it may probably be regarded rather as an exception to than a recision of the rule that a receiver will not be ordered in ejectment.

d. Injunction.-Restraining action of ejectment by injunction (Sieman V. Austin, 33 Barb. 9).

e. Waste.-Restraining waste pending the action (The People v. Davison, 4 Barb. 109).

.f. Staying proceedings till costs of previous action paid. -An action of ejectment by several heirs is not for the same cause and between the same parties as an action by one of the heirs, and the proceedings in the action by several cannot be stayed until the costs of an unsuccessful action by one of the heirs is paid (Ten Broeck v. Reynolds, 13 How. 462; ante, p. 482 b).

g. Ejectment by purchaser on sale under an execution.To recover in ejectment, under a purchase at a sheriff's sale on a judgment against the defendant, it is sufficient for the plaintiff to show the defendant in possession at the time of the recovery of the judgment against him, and a continued possession in him from that time to the commencement of the action, and that the plaintiff acquired the title of the defendant, under the sheriff's sale (Kellogg v. Kellogg, 6 Barb. 116; Dickinson v. Smith, 25 Barb. 102; Bigeloro v. Finch, 11 Barb. 498; Smith v. Colvin, 17 Barb. 157). The plaintiff must prove a judgment, and that a judgment-roll has been filed (Toronshend v. Wesson, 4 Duer, 342; and see 11 Barb. 498 ; 25 id. 103 ; 2 N. Y. 273).

h. Ejectment on surrogate's decree.-As to ejectment by a purchaser at a sale under a surrogate's decree, see Sibley v. Waffle (16 N. Y. 180).

i. Ejectment for dower, against whom it will lie.- Eject


ment to recover dower will lie against a tenant who has an estate or interest less than a freehold, and before dower has been assigned. It must be brought against the actual occupant of the land (Ellicott v. Mosier, 7 N. Y. 201). It is not necessary that she demand her dower before bringing her action (id.) Where she claims dower in a block of lots, she may maintain her action against the occupant of a single floor of a house, erected upon one of the lots, who has hired such floor of the owner for a single year (id.)

a. Defense.To bar the widow of her action for dower, where rent has been assigned with her consent and accepted by her, it must appear that the rent will endure for her life (Ellicott v. Mosier, 7 N. Y. 201). And in ejectment for dower after admeasurement, the defendant may controvert the title of the husband, his seizin, the plaintiff's marriage [and the death of the hus. bạnd] (Parks v. Hardy, 4 Bradf. Sur, Rep. 15; and see Sparrow v. Kingman, 1 N. Y. 242 ; Finn v. Sleight, 8 Barb. 401 ; Poor v. Horton, 15 Barb. 486).

b. Offer.-In an action for dower, an offer of judgment for five and a half acres of the land claimed without further description is too indefinite (Marble v. Lewis, 53 Barb. 432).

c. Damages.—In an action to recover dower and damages for the rents and profits, where the premises were aliened during the lifetime of the husband, the damages can be recovered only from the time dower was demanded (Marble v. Lewis, 36 How. 337).

d. Limitation in action to recover dower.-(Brewster v. Breuster, 32 Barb, 428).

e Counter-claim in action for dower.-(Ellicott v. Gibbons, 30 Barb. 498 ; Bogardus v. Parker, 7 How. 303).

f. Admeasurement of dower-Proceedings for, before surrogate.—(See Board v. Board, 4 Abb. 295 ; Parks v. Hardy, 4 Bradf. Sur. Rep. 15); notice to owner before admeasurement (Stewart v. Smith, 1 Keyes, 59).

g. Complaint for admeasurement of dower.-A complaint asking to have dower set off and admeasured, is to be regarded as a substitute for the former petition for admeasurement, or the former bill in equity; and is not objectionable on the ground that the defendant was not in the actual possession of the lands, or that six months had not elapsed since the death of the husband (Townsend v. Townsend, 2 Sand. 711; Stewart v. Smith, 39 Barb. 167); and as to parties to such action, see Van Name v. Van Name, 23 How. 247; see also Wood v. Seely, 32 N. Y. 105. An equitable action for the admeasurement of dower is sustainable, and in such action the court may appoint a referee to admeasure dower, and assess damages for loss of rents and profits (Brown v. Broron, 4 Rob. 688; 31 How. 481).

h. Sale of real estate to pay dower, see Laws 1870, ch. 717.

i. Ejectment for lands ceded to the United States, see Dibble v. Clapp, 31 How, 420.

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