
    Joseph H. Drake and Others, Appellants, v. Alonzo T. Drake and Others, Respondents, Impleaded with Sila Campney and Others Appellants.
    
      Partition — one tenant in common may me his cotenant in the exclusive possession of the premises under a deed {claimed hy the plaintiff to he illegal) from their common ancestor.
    
    A person entitled to the possession of real property as a tepant in common, save for an alleged adverse title of his cotenant under a deed executed by their common ancestor, the validity of which is challenged, may maintain an action for the partition of such property, although his cotenant is in the actual and exclusive possession thereof under such alleged title; and in such action he is entitled to have the validity of such alleged title determined, and if it is found to be invalid he is entitled to a judgment of partition.
    Section 1532 of the Code of Civil Procedure, which provides that "Where two or more persons hold and are in possession of real property as joint tenants or as tenants in common,” an action to partition the real property may be brought, does not contemplate a strict pedis possessio but a present right to the possession.
    Appeal by the plaintiffs, Joseph H. Drake and others, and by the defendants Sila Campney and others, from a judgment of the Supreme Court in favor of the defendants Alonzo T. Drake and others, entered in the office of the clerk of the county of Jefferson on the 17th day of October, 1900, upon the dismissal of the complaint as to the said Alonzo T. Drake and others after a trial at the Jefferson Trial Term.
    The action was commenced on the 2d day of May, 1896, for the partition of the lands described in the complaint, and situate in the town of Philadelphia, Jeffefson county, N. Y,
    The facts, so far as material to the determination of the questions involved upon this appeal, are as follows : David Drake, who, at the time of his death and for many years prior thereto, resided in the town of Philadelphia, Jefferson county, N. Y., died on the 24th day of April, 1896. At the time of his death he was the owner and in possession of the lands described in the complaint, consisting of six separate farms comprising several hundred acres, and alleged by the plaintiffs to be of the value of $40,000. The deceased was a bachelor, was ninety years of age, and was an uncle of the' respondents.
    On March 16, 1896, thirty-eight days before his death, David Drake executed and acknowledged a deed of conveyance of all the lands described in the complaint, except two of the farms, to the respondents, and those two farms, by a deed executed and acknowledged at the same time, he conveyed to two of the other defendants. Such deeds were executed and acknowledged during the last sickness of David Drake, and were delivered by him to one' Kinney, with instructions to hold the same, and in case he, Drake, did not recover, to deliver them upon his death to the grantees therein named respectively. Kinney accepted the deeds, and promised and agreed to carry out the directions of the grantor in respect thereto. David Drake did not recover from his last.sickness, but died on the 24th day of April, 1896, and while the deeds remained in Kinney’s possession. The deeds were not delivered by Mr.j Kinney to the defendants upon the death of David Drake, nor until November, 1897, when, pursuant to a stipulation between the parties, they were delivered to the respondents, and were, by them procured to be recorded in the office of the clerk of Jefferson county on the 9th day of November, 1897. The respondents were in possession of some of the farms conveyed, to them, as tenants of the deceased David Drake, at the time of his death, and other persons were in possession of other of the farms, also as tenants.
    
      Immediately upon the death of David Drake the respondents ■assumed to take possession of the farms, which they were then occupying as tenants, as owners, claiming to own the same under the deeds to them, and upon the expiration of the leases to the other tenants they assumed to and did take actual possession of the other of said farms, and have ever since occupied all the lands conveyed to them, being all the lands described in the complaint, and! of which the deceased died seized, except the two farms conveyed to two .other of the defendants respectively, and the respondents have ever since been in the exclusive possession of the premises so conveyed to them, claiming to own the same by virtue of said deeds. The execution and acknowledgment of the deeds by David Drake, the possession of the respondents, their claim that they were the owners of the premises and entitled to their exclusive possession, was known to the plaintiffs at the time of the commencement of this action.
    The complaint is in the usual form. It is alleged that the plaintiffs and defendants are tenants in common of the real estate described in the complaint, as the heirs at law of David Drake, deceased. The respondents by their answers set up the deeds to them from David Drake ; deny that they are tenants in common with the plaintiffs, or with any of the other defendants, and allege that they are the owners in fee of all the lands described in the complaint, except the two farms conveyed to two of the other defendants. The plaintiffs served a reply upon each of the respondents, in which they allege that the deeds executed by the deceased, and purporting to convey the lands therein described, were and are void, for the reason that they were procured by fraud and undue influence, and executed at a time when the grantor was incompetent to make oi execute such instruments.
    The issue so framed, to wit, whether or not the deeds to the respondents were void, the appellants sought to litigate, and requested to be allowed to make their proofs and that the question be submitted to the jury for its determination. The learned trial court denied the request and dismissed the complaint, with costs, to which the appellants duly excepted.
    The questions presented by this appeal are:
    
      First. Can the plaintiffs maintain this action, they not having been in the actual physical possession of the premises when the action was brought ? and,
    
      Second. Can the validity of the deeds under which the respondents claim title be litigated and determined in an action of partition ?
    
      Watson M. Rogers, for the appellants.
    
      W. F. Breen, for the respondents.
   McLennan, J.:

We think the precise questions involved have been' decided by the Court of Appeals in Weston v. Stoddard (137 N. Y. 119); and that such decision makes a reversal of the judgment appealed from necessary.

That was an action of partition: It was decided in 1893, and involved a construction of the sections of the Code of Civil Procedure relating to actions of partition, which were the same as those now in force. In that case the answering defendants concededly had title to an undivided three-fourths of the premises described in the complaint, and in their answer they alleged that they were and had been in the actual possession of the premises sought to be partitioned, and of every part thereof, claiming to own and hold the same in hostility to the plaintiff and all other persons for more than twenty years before the commencement of the action, and that the plaintiff had actual notice of their exclusive and hostile possession ; and that when the suit was brought they were and had been the absolute owners of the premises and every part thereof. The issue thus raised in that case respecting the title of the premises was tried, and the trial court found that the defendants were in possession at the time" the action was begun, holding adversely to the plaintiff, but that such adverse possession did not commence until after 1880, and, therefore, had notripened into title. Partition was decreed and judgment ordered accordingly. Such judgment was affirmed by the General Term (60 Hun, 290), and the judgment of the General Term was unanimously affirmed by the Court of Appeals.

In that case the defendants insisted that the court having found that they were in the exclusive possession of the premises at the time of the commencement of the action, holding adversely to the plaintiffs, the complaint should have been dismissed, and that the validity of their alleged title could not legally be determined in an action of partition. The claim was held untenable, and the quality and validity of the title set up as a defense was held to have been properly litigated and determined. Ooncededly the plaintiff there was entitled to partition, save for the defense interposed, to wit, the exclusive possession of the premises by the defendants at the time of the commencement of the action and their alleged title. Their possession was found to exist, but that was considered to be no bar to a determination as to the validity of their alleged title.'

In the case, at bar concededly the plaintiffs would be entitled to-partition, except for the defense interposed by the respondents, to wit, their exclusive possession of the premises in question at the time the action was commenced and since the death of David Drake, and their alleged title, which depends upon the validity of the deeds under which they claim. The exclusive possession is admitted in this case (was found as a fact by the court in the Weston case), but that fact, under the decision being considered, cannot preclude the plaintiffs from having the validity of the respondents’ alleged title litigated and determined in this action.

The title set up by the defendants in this action is of no better quality, and would be no more effectual for the purpose of establishing absolute ownership in them, than the title set up by the defendants in Weston v. Stoddard (supra) if established.

We think it would be absurd to hold that an exclusive possession of premises by a defendant at the time of the commencement of an action for their partition, obtained under a claim of ownership by adverse possession, is not a defense to such an action, and that possession by a defendant, obtained under a claim of ownership by virtue of a deed, would constitute such a defense, and it would be equally absurd to hold that the validity of a title, alleged to have been acquired by adverse possession, may be determined in such an action, but that the validity of a title, claimed to have been acquired by virtue of an alleged deed, may not be thus determined.

The reasoning of the learned court in Weston v. Stoddard (supra) fully justifies the conclusion reached, and applies with equal force to the case at bar, and to all cases where the only obstacle to partition is an alleged title, which is challenged, and possession under it, and which, being out of the way, partition would follow as a matter of ■course. ' • .

In the opinion of the court in that case it is pointed out that at common law and under the Revised Statutes it was the settled practice in actions of partition to withhold relief if the title or the right of possession of the plaintiff was disputed, and that when disseisin had been established the tenant in common was required to regain possession in an action at law before he could maintain an action for partition. It is said, that such became the settled rule of practice because of the fact that a writ of partition was a common-law process, of which the common-law tribunals had for a longtime exclusive jurisdiction ; the Writ Was returnable before commissioners appointed to hear, the cause, and if, upon the return, it appeared that the plaintiff’s title was contested, and that the lands were held adversely, the proceedings were dismissed or suspended until- the question of title had been otherwise determined. This course. was necessary because the citizen Was entitled to have an issue involving title to his real property determined by a jury, and there .was no provision for a jury trial in an action of partition. For the same reason the Oourt of Chancery refused to grant relief - in such an action, unless the plaintiff showed an actual holding and • possession in common with his cotenants. ■

. When the Supreme Court of this State was empowered to administer both legal and equitable remedies partition suits continued to. be regarded as cases of purely equitable cognizance, and upon the trial of such cases a jury-trial could not be demanded as a right, which fact alone was a sufficient reason for not permitting issues involving the title to real property to be determined in a partition action. In fact, it necessarily prohibited the determination of such an issue.

Owing to the state of the law thus existing, namely, the right to a trial by jury of issues involving the title to real property, and partition suits being of 'equitable cognizance, and there being no provision for the trial by a jury of issues arising in such actions in a court of equity, the prohibition continued until the adoption of the amendment to the Code of Procedure in 1849 (Chap. 438); By section 448 of said Code as thus amended it was provided that actions of partition, brought under' the Code, should be regulated by the provisions of the Revised Statutes, and in construing the- section the Court of Appeals held, in Hewlett v. Wood (62 N. Y. 75), that in a partition suit a trial by a jury could be insisted upon as a right. The head note in that case is as follows: “ An action for partition is an equitable action; but as the provisions of the Revised Statutes are by the Code (§ 448) made applicable to such actions, where issues of fact are presented by the pleadings, a jury trial is a matter of right.”

With that provision of law thus construed it would seem that no substantial reason longer existed for the rule'which had so long prevailed, and which prohibited the trial of issues arising in partition actions, affecting the title to the lands which it was sought to partition. Any party to such an action then became entitled, as matter of right, to have the issues determined by a jury in the partition action, and it is not apparent why it should then be necessary to have certain of the issues determined by a jury in that action under section 448, and certain other of the issues, and which ■affected the title to the property which was the subject of the partition suit, determined in another action, perchance an action brought also in a court of equity, to set aside as void a deed of the premises.

Under' the law, as it then existed, the rights of all the parties could be properly determined in one action, and all issues determined by a jury at the instance of any party, where the right to a trial by jury of such issues had theretofore existed. Thus, circuity of procedure and multiplicity of suits, which it was the primary object of the Code to prevent, were avoided. The rule of practice -which had so long prevailed in this State, and which prohibited the trial of issues affecting title in actions of partition, was repudiated by thé Supreme Court of the United States in Parker v. Kane (22 How. [U. S.] 17), which was a partition suit arising in Wisconsin, in which disputed questions of title had been adjudicated by the ■court below. Mr. Justice Campbell, in delivering the opinion of the court, said : “ In Great Britain a chancellor might have considered this as a case in which to take the opinion of a court of law, or to stay proceedings in the partition and cross-suits until an action of law had been tried, to determine the legal title. * * * But such-a-proceeding could not be expected in a State where ’the . powers of the.courts of law and equity are exercised.by the same, persons,” "

Substantially the same doctrine has been enunciated by the courts of many-of the States of the Union, as will appear by an. examination of. the cases cited in the opinion • of the court in Weston v. Stoddard (supra), at page 125.

It is true, as suggested by respondents counsel, that .after' the. law relating to actions of partition was changed by the adoption of the amendment to the Code of 1848, and even after-section 448 of that Code was interpreted by the Court of. Appeals in Hewlett v. Wood (supra), and held to secure the right to a trial by jury, of the " issues involved in such an action, the Court of Appeals continued to adhere to the old rule, and. to hold that an issue involving title could not be'- determined in a partition, action.

This was in effect held in Jordan v. Van Epps (85 N. Y. 434), and. expressly held in Culver v. Rhodes (87 id. 348), Although there- was some conflict in- the decisions of the. Supreme Court, it maybe, said-to have been the rule until Weston v. Stoddard (supra) was decided. By that decision the rule was expressly changed. After-a discussion of the authorities and- of .the sections of the-Code then and now in force, Judge Mayxaed, in writing the opinion of the court, said: “ We think that section 1543 was intended to confer upon the court, in which an action for partition may: be brought, authority to try and determine. all disputes which may arise between the plaintiff and his co-tenants, involving their respective titles, and rights of possession to the property, Thereto.fore nothing could be. tried, if the bare fact of the common holding or tenancy was disputed. The commissioners who framed this part -of the Code, state, in a .preliminary note to the article that such was the radical change which they designed to effect in the existing law, ..and. after" its, adoption the same purpose was asserted by one of-the commissioners in a foot noté to the section.” ,

The learned judge also considered and interpreted section 1532 of the Code of Civil .Procedure, which by its express- language respondents’ counsel insists prevents these plaintiffs from maintaining this action, for. the reason that they were not in the actual physical possession of the premises in question at the time the action was begun. That section provides: “Where two or more persons hold and are in possession of real property as joint tenants or as tenants in common,” such action may be brought. With reference to the meaning of that section the court, in Weston v. Stoddard (supra), said: “What is here meant is not a strict pedis possessio., but a present right to the possession, as distinguished from the cases in the next section, where, under certain circumstances, the remainderman may bring the action. The section must be read as a part -of the article to which it pertains, and cannot be construed so literally as to render nugatory the plain purpose of the provisions with which it is associated.”

So far as we have been able to discover, the decision in the case of Weston v. Stoddard (supra) has not been questioned or its scope in any manner restricted.

In Ellerson v. Westcott (148 N. Y. 149) it is said by the court (at p. 155): “ It is quite true that the scope of the action of partition has been greatly enlarged by recen.t legislation; ” and Weston v. Stoddard is cited in support of the proposition and with approval. In the Ellerson case the court said that section 1537 of the Code of Civil Procedure excludes by necessary implication a contest in partition between a plaintiff claiming as heir and a devisee in possession, except where the “ apparent devise is void,’ ” but we fail to see how that proposition can aid the respondents’ contention. In that case it was sought to litigate, in an action of partition, the question as to whether or not the devisee in possession had wilfully caused the death of the testator, and so was not entitled to take under the devise, under the authority of Riggs v. Palmer (115 N. Y. 514). It was held that even if the alleged facts were proven, it would not make the devise void, and that the plaintiff’s only remedy, if such facts were established, would be to obtain an injunction and enjoin the defendant from claiming or obtaining the devise to her, and it was held that such relief could not be obtained in a partition action. It is pointed out in that case that incompetency on the part of the testator, defect in the execution of the will, that the devise was in contravention of any statute, or that it was procured to be made by fraud or undue influence, were not alleged.

Stress is laid by respondents’ counsel upon the language of the court at page 152, where, after quoting the provisions of section 1532 of the Code of Civil Procedure, the court said: “ The plaintiff not being in possession, and not sustaining the relation of tenant in Common or joint tenant to the defendants who were in possession, Cannot maintain an action for partition unless by reason' of the exception contained in section 1537.”

We" think by the use of that language die court did not mean an actual physical possession of the premises, but a present right to the possession,” which was held by Judge Maynard to be the true' meaning of the words used in the section of the Code referred to.

The scope and meaning of the decision of the court • in Weston v. Stoddard (supra) has been repeatedly interpreted as above indicated by the Supreme Court of this State.

Biglow v. Biglow (39 App. Div. 103) was an action-for partition. The complaint contained the usual allegations. ■■ Two of the defendants answered, denied the allegations of the complaint, and averred that they were the owners in fee' of the premises, and that ■the plaintiff or her husband were never in possession or owners, and , they alleged averse possession for twenty-five years. Those issues were tried in that action, and a judgment rendered adverse to the defendants, from which an appeal was taken to the Appellate Division, third department. It was held that those issues were properly determined in that action. Justice Merwin, in writing the opinion of the court, said: “ It is further, in substance, claimed that by

reason of the possession of appellants, the plaintiff cannot maintain partition. In Weston v. Stoddard (137 N. Y. 119) it was held that, under section 1532, relating to actions of partition, a present right of possession was sufficient, and that an adverse possession by a co-tenant, if it had not existed long enough to extinguish the plaintiff’s title, would not prevent the maintenance of the action. An occupation by another than the owner is deemed to be under and in subordination to the legal title, unless there is an adverse ■possession for twenty years. (Code Civ. Proe. § 368.) ”

In Holder v. Holder (40 App. Div. 255) the court said: “ Eeither at the common law nor under the Revised Statutes could the title or the right of possession of land of the plaintiff be determined in such an action (of partition). The rule had its origin in ..the right of the citizen to a trial by jury of all questions involving the- title to land. The modern tendency, however, has been in favor of the relaxation of the rule land permitting a disseized co-tenant to have his right and title determined in an action for partition.”

And the court further said : “ But I have not overlooked, the case of Weston v. Stoddard (137 N. Y. 119), which seems to hold that the principle embodied in section 1537 was extended to all cases by section 1543, and that a disseized co-tenant may maintain an action for partition.” (Affd., 166 N. Y., without an opinion.)

In Bender v. Terwilliger (48 App. Div. 371) the head note is as follows: “ The possession necessary to the maintenance of an action of partition under section 1532 of the Code of Civil Procedure, is that constructive possession which follows the title, and not the actual physical possession.”

In that case one of the defendants answered, and alleged that he was a tenant by the curtesy and entitled to the possession and enjoyment during his life of the entire real estate described in the complaint. Under the authority of Weston v. Stoddard (supra) it was held that the issue thus raised was properly triable in a partition action.

Many other decisions might be referred to, indicating the interpretation which has been placed upon the decision in Weston v. Stoddard (supra). As a result of that decision and of the decisions which have followed, we think the rule now in force applicable to the trial of an issue of title arising in an action of partition, may be stated to be :

A person who is entitled to the possession of real property, as a joint tenant or tenant in common, save for an alleged adverse title of his cotenant which is challenged, may maintain an action for the partition of such property, although his cotenant may be in the actual and exclusive possession thereof under such alleged title; and in such action he is entitled to have the validity of such alleged title determined, and if found . to be invalid, is entitled to a judgment of partition.

It follows that the judgment appealed from should be reversed, and a' new trial granted, with costs to the appellant to abide event.

Judgment reversed and new trial ordered, with costs to the appellant to abide event.

All concurred.

Judgment reversed and new trial ordered, with costs to the appellant to abide event.  