
    Bates v. Lidgerwood Manuf’g Co.
    
      (Supreme Court, General Term, Second Department.
    
    December 13,1888.)
    Ejectment—Title to Support—Equitable Interest—Purchase under Execution.
    A levy on and sale of the interest of one holding land under a contract of purchase, or as cestui que trust, the legal title being vested in another for his benefit, passes no title upon which ejectment can be maintained.
    Appeal from special term, Kings county.
    Ejectment by Aaron P. Bates against the Lidgerwood Manufacturing Company. Judgment for defendant, and plaintiff appeals.
    Argued before Barnard, P. J., and Dykman and Pratt, JJ.
    A. B. Bates, for appellant. Harriman & Fessenden, for respondent.
   Per Curiam.

This is an action in ejectment. The complaint alleges title in the Fibre Disintegrating Company, the recovery of a judgment against that company, and the sale on execution to the plaintiff of the premises in question. The answer denied title in the execution debtor, and set up affirmatively the defendants’ claim of title.

It is elementary law that in ejectment a plaintiff (unless he connects his title with a prior possession) must recover on the strength of his own title, and not on the weakness of that of his adversary. It is also settled law that production of a deed without proof of possession under it or possession in the graqtor is not sufficient evidence of title to put the defendant on his defense. Dominy v. Miller, 33 Barb. 386. Upon the trial the plaintiff offered no direct proof to show either title or possession in the Fibre Company; but the answer alleged the fact that at the time of the recovery of the judgment one Robert W. Russell was the owner in fee of the premises. This fact the plaintiff, therefore, had the right to assume. The plaintiff then offered on evidence a decree and judgment roll of chancery on the state of Hew Jersey in the suit of Ogilby against the Fibre Company and said Russell, by which it was adjudged that the company were the equitable owners of the property in dispute. This was excluded by the trial court. That the decree of the court of chancery in Hew Jersey could have no extraterritorial effect is unquestionable. But the defendant Russell answered, admitting the allegations of the bill of complaint. Such admissions, I think, were, like other declarations of one in possession of realty, good evidence of title. The complaint and answer were therefore improperly excluded, if the facts alleged in the bill and admitted tended to show title in the plaintiff; but we think they did not. The facts set forth in the complaint showed either that the Fibre Company was in possession, holding under contract of sale, or that it stood in the relation of one who had advanced the consideration for a conveyance made to another. In either case it had no title capable of being sold on execution. As to the first, the provision of the Revised Statutes is (section 4, p. 744) that the interest of a person holding a contract for the purchase of lands shall not be sold under execution. Sage v. Cartwright, 9 N. Y. 49; Griffin v. Spencer, 6 Hill, 525. In the latter case, while a trust is raised in favor of creditors, the creditor must resort to a court of equity. He cannot sell the land on execution. Garfield v. Hatmaker, 15 N. Y. 475. The evidence was therefore properly excluded, and he failed to show any title in the judgment debtor. The complaint was properly dismissed. Judgment should be affirmed, with costs.  