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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 Rensselaer v. Slingerland, 26 N. Y. 580); 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 (Mayor &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 (Lowber 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 (Howard v. Howard, 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. Davis, 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 (Bartow 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 accrued, 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 specified 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. §§ 7, 8; Warner v. Nellgari. 12 How. 402; Ensign v. Sherman, 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. Asso. 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. Treadwell, 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. Leavy, 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 Barb. 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 title 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. Tanner, 12 Barb. 481; The People v. Mayor of N. Y. 17 How. 57; 28 Barb. 240; 8 Abb. 7; Hotchkiss v. Auburn 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

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).

b. 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; Forgate 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 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. Townsend, 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).

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 (Lang v. Wilbraham, 2 Duer, 171; see Van Rensselaer v. Owen, 48 Barb. 61; 33 How. 12; Olendorf v. Cook, 1 Lans. 37).

b. 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 should 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. Herkimer 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; Chase 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 Answer.

d. Under a general denial, defendant may show title out of plaintiff (Roynor 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 (Bartow 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. Newton, 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; Safford v. Hynds,

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 How. 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 nonpayment 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. S. 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 prop

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