
    Arthur H. Burdick and Edgar F. Burdick; Individually and as Executors, etc., of Henry F. Burdick, Deceased, Respondents, v. Marion Chesebrough, Appellant.
    
      Conclusions stated in a pleading demurred to, not consideredownership of personal property lost or buried in or thrown upon the surface of the soil and abandoned-r-any right therein of a deceased owner of the soil passes to his devisees — a complaint in an action therefor by one of several tenants in common is demurrable — the executors of the deceased owner may not sue,
    
    The sufficiency of a complaint to which a demurrer has been interposed must be • determined by the facts stated and not by conclusions.
    Where an allegation contained in a complaint is a conclusion from the other facts • stated therein, it is not to be deemed admitted by a demurrer.
    (If personal property is thrown upon the surface of the soil and abandoned it will become the property of the person who finds and appropriates it without reference to the ownership of the real property upon which it is found or from •vrhioh-itis taken. If personal lost, it becomes as against all persons ■ other than the' owner thereof, the property of the finder who appropriates it. ■ If personal property is deposited beneath the surface of the soil and so left until the place where it is so deposited’ is forgotten an3"TíBe"3wner thereof, if living, or his personal representatives, if he is dead, cannot be found, such personal property so in the possession of the owner of the soil becomes as a part of the soil the property of the owner of the real property and it passes! by gift, sale or descent of said real property as a part thereof. When it is discovered and removed from the soil, as against every one but the owner it becomes the personal property of the owners of such real property, and not the property of the finder thereof.
    The complaint in an action brought by the plaintiffs individually and as the executors of a decedent alleged that the plaintiffs’ testator was, at the time of his death, the owner of certain real property upon which “ there was deposited and for many years prior thereto had been deposited in the soil upon the real estate ” certain earthenware; that said testator by his will named the plaintiffs as his executors, and that said will has been admitted to probate, and that letters testamentary have been issued to the plaintiffs; that plaintiffs, “under and by virtue of said will became the owners of and had the legal title to the undivided two-thirds part of said real estate and entitled to the undivided two-thirds of the personal estate ” of said testator; that defendant on March 28, 1903, took said earthenware out of the soil where it was deposited upon said farm, and took the same into his possession and retains the same, and that on May 5, 1903, he refused to deliver it to the plaintiffs on demand.
    The complaint did not disclose by whom, or under what circumstances the earthenware had been deposited in the soil of said real estate or whether the real owner of such earthenware was known.
    
      Held, that the complaint was demurrable;
    That such title as the testator had at the time of his death passed with the real' property to the persons to whom such real property had been devised;
    That the plaintiffs, in their capacity as executors, had no interest in such earthenware;
    That the plaintiffs could not maintain the action in their individual capacity, as it appeared upon the face of the complaint that the plaintiffs were but a part of the tenants in common of the premises.
    Appeal by the defendant, Marion Ghesébrough, from an interlocutory judgment of the Supreme Court in favor of the plaintiffs, , entered in the office of the clerk of the county of Madison on the 21st day of October, 1903, upon the decision of the court, rendered after a trial at the Madison Special Term, overruling the defendant’s demurrer to the plaintiffs’ complaint.
    The plaintiffs, by their complaint, alleged that Henry F. Burdick died on the 23d day of March, 1903, leaving a last will and testament, which has been duly admitted to probate; that they were named as executors in said will, and that letters testamentary have been duly issued to them.
    The complaint further alleged “ That in and by said will the said Henry F. Burdick devised and bequeathed the undivided two-thirds of his estate, both real and personal, to the said plaintiffs.
    
      “ That at the time of his death the said Henry F. Burdick was and for many years had been the owner of and had the legal title to the following described real estate, to wit: * * A
    “ That at the death of the said Henry F. Burdick the said plaintiffs under and by virtue of said will became the owners of and had the legal title to the undivided two-thirds part of said real estate and entitled to the undivided two-thirds of the personal estate of the said'Henry F. Burdick, deceased.
    “ The said plaintiffs further .state that .at the time of the death of the said Henry F. Burdick,, deceased,, there was deposited and for (many years prior thereto had been deposited in the soil upon the jreal estate hereinbefore described the1 following property, being very valuable earthenware, to wit: "* * *.
    “"The said plaintiffs further allege that on or about the 28th day of March, 1903, the said defendant wrongfully and unlawfully took said property out of the soil where it was deposited upon said farm and wrongfully and unlawfully took the above-described property ■ into his possession and wrongfully and unlawfully detains the same from the said plaintiffs.
    “ The said plaintiffs further allege that at the time the said defend-’ ant wrongfully ánd unlawfully took the.said property into his possession the said plaintiffs were the owners thereof as hereinbefore stated and were entitled to the immediate possession thereof.
    “That on or about the 5th day of May, 1903, the said plaintiffs ' demanded of the said defendant that he.deli ver to them the possession of said property as the owners thereof, which the said defendant refused to do.” , ' '
    The complaint demands judgment for the possession of said personal property and for damages, and in case possession of said personal property cannot be had then for the Value thereof and for damages. '
    The defendant demurred to said complaint on the following grounds:
    
      “First. That there is a misjoinder of parties plaintiff herein, in that it appears by said complaint that the plaintiffs Arthur IT. Bur-dick and Edgar F. Burdick, as executors of the Last Will and Testament of Henry F. Burdick, deceased, have no cause of action upon, and no interest in, the matters alleged in said complaint against this defendant.
    
      “ 2. And that them is a misjoinder of parties plaintiff herein, in that it appears by said complaint that the plaintiffs Arthur H. Bur-dick and Edgar F. Burdick, if- having any title to the earthenware described in the complaint and sought to be recovered herein, are tenants in common thereof; and as such tenants in common the said plaintiffs cannot join in maintaining this action for the recovery thereof.
    “ Second.. That there is á defect of parties plaintiff herein, in that it appears by said complaint that if the plaintiffs have any title or right of possession to the earthenware described in the complaint and sought to be recovered herein, that then some person or persons other than the plaintiffs, whose name or names is or are undisclosed, is the owner or are the owners of an undivided one-third part of said earthenware, and is or- are not joined as plaintiff or plaintiffs, defendant or defendants herein; and such owner or owners of such one-third part of said earthenware is a necessary party, or are necessary parties plaintiff herein.
    “ Third. That the complaint herein does not state facts sufficient, to constitute a cause of action.”
    The issue of law joined by the service of the demurrer was tried and said demurrer overruled. This appeal is taken from the interlocutory judgment overruling said demurrer.
    
      Adon P. Brown,, for the appellant.
    
      Joseph Mason and B. W. Cushman, for the respondents.
   Chase, J.:

We think that the demurrer should have been sustained. The complaint does not contain an unqualified allegation of ownership or right to the possession of the earthenware in the plaintiffs. The allegation of ownership is, “said plaintiffs were the owners thereof as hereinbefore stated.” Even this allegation does not relate to the time of the commencement of the action. (Code Civ. Proc. § 1720.) The allegations relating to the ownership and right to the possession of the earthenware, and as to the defendant’s taking the same wrongfully and unlawfully as against the plaintiffs, are conclusions of law on the facts in the complaint stated.

The sufficiency of the complaint must be determined by the facts stated and not by conclusions. (Lange v. Benedict, 73 N. Y. 12; Savage v. City of Buffalo, 50 App. Div. 136.)

Where an allegation contained in a complaint is a conclusion from the other facts therein stated, it is not to be deemed admitted by a demurrer. (Rector of St. James Church v. Huntington, 82 Hun, 125.)

The facts stated in the complaint are, briefly, that the plaintiffs’ testator died March 23, 1903, and that at the time of his death he was the owner of certain real property upon which “there was deposited and for many years prior thereto had been deposited in the soil upon the real estate ” certain earthenware; that said testator by his will named, the plaintiffs as his executors, and that said will has been admitted to probate, and that letters testamentary have been issued to the plaintiffs; that plaintiffs, “ under and by virtue of said will became the owners of and had the legal title to. the undivided two-thirds part of said real estate and entitled to the undivided two-thirds of the personal estate ’’ of said testator; that derruían t on March 28, 1903, took said earthenware, out of the soil where it was deposited upon said farm, and took the same into his possession and retains the same, and that on May "5, 1903, he refused to deliver it to the plaintiffs on demand.

The complaint does not disclose by whom nor under what circumstances said earthenware was deposited in the soil of said real property. It may, so far as appears, have been deposited therein by the defendant or by some one under whom he claims. Whether it was so deposited by some one other than the owner of the real property, or by an owner of the real property of under an agreement with Such owner of the real property by which it was there to remain for an express purpose, or for a prescribed period of time, is left wholly to conjecture; So, too, the complaint fails to show whether the owner of the earthenware is known, or whether it had been so deposited such wdength of time that all knowledge thereof and of the person who had thus deposited it and of his personal representatives had been lost to memory, 'The complaint is wholly barren of any facts relating to the history and ownership of said earthenware. The plaintiffs as the personal representatives of the testator, and individually as the owners of an undivided interest in the real and personal property left by the testator, base. their ownership of said earthenware upon the simple fact that it was deposited for many years in said real property so owned by their testator at the time of his death. Such claim on the part of the plaintiffs makes it necessary for us to consider briefly the ownership and the rights of finders of personal property.

An unqualified owner of personal property is entitled to the possession thereof. Such ownership may be transferred by. sale, by gift or by descent. If personal property is thrown upon the surface of the soil and abandoned it will become the property of the person who finds and appropriates it without reference to the ownership of the real property upon which it is found or from which it is taken. If personal property is lost, it becomes as against all persons other than the owner thereof, the property of the finder who appropriates it. (See White v. Daniels, N. Y. L. J., Jan. 9, 1904.) If personal property is deposited beneath the surface of the soil and so left until the place where it is so deposited is forgotten and the owner thereof, if living, or his personal representatives, if he is dead, cannot be found, such personal property so in the possession of the owner of the soil becomes as_a.part of the soil the property of the owner of the real property and such personal property passes by gift, sale or descent of said real property as a part thereof. When it is discovered and removed from the soil as against every one but the owner, _it_ becomes the personal property of the owners of such real property, and not the property of the finder thereof.

The language of the court in the case of Elwes v. Brigg Gas Company (33 Ch. Div. 562) is applicable to this case. In that case lessees of real property in making an excavation uncovered an ancient ship or boat some 2,000 years old. The action was brought by the owner of the real property against the lessees' who had uncovered it, and the court say: “ The first question which does actually arise in this case, is whether the boat belonged to the plaintiff at the time of the granting of the lease. I hold that it did, whether it ought to be regarded as a mineral or as part of the soil within the maxim above cited,1 or as a chattel. If it was a mineral or part of the soil in the sense above indicated then it clearly belonged to the owners of the inheritance as part of the inheritance itself. But if it ought to be regarded as a chattel, I hold the property in the chattel was vested in the plaintiff, for the following reasons: Being entitled -to the inheritance, * * * and in lawful possession', he was in possession of the groundnot merely of the surface, but of everything that lay beneath the surface down to the center of the earth, and consequently in possession of the boat. * * * The boat was imbedded in the land. A mere trespasser could not have taken possession of it; he could only have come at it by further acts of trespass involving spoil and waste of' the inheritance. * * * The plaintiff then being thus in possession of the chattel,, it follows, that the property in the chattel was vested, in him. Obviously the 'right of the original owner _could not be established. It had for centuries been lost or barred; even supposing that the property had not been abandoned when the boat was first left on the spot where it was found. The plaintiff then had a lawful possession, good against all the world, and, therefore, the property in the boat. In my opinion it makes no difference in these circumstances that the, plaintiff was not áwafe of the existence of the boat. * * * Further, if it ought to be regarded as a chattel, the defendants did not-acquire any property in 'the. chattel by the mere finding as against the plaintiff, who upon the grounds already stated was the owner of the chattel.” i The allegations of the complaint that said earthenware had been deposited in the soil of said real property for many years prior to the death of the plaintiffs’ testator do not as a matter of law show that the plaintiffs are the owners nor entitled to the possession thereof. Even if the complaint contained allegations stating that the owner of the earthenware so deposited could not be found, it would nevertheless appear upon the face of the complaint that, at the time of the testator’s death, the earthenware remained deposited in the soil' and that such.title thereto as the testator then had passed with the real property to the persons to whom the real property was devised, and that ,the plaintiffs, as executors, obtained no interest therein; . and if the title to said earthenware passed with the .said real property to the devisees thereof, then it appears upon the face of the complaint that the plaintiffs individually are but.part of the owners, in' common thereof.

In any aspect of the case we think that the defendant’s demurrer must be sustained. The judgment should be reversed, with costs, and interlocutory judgment directed sustaining, demurrer,, with costs, with leave to plaintiffs, to serve, within twenty days, an amended complaint on payment of costs of demurrer and of this appeal.

All concurred.

Judgment reversed, with costs, and interlocutory judgment directed sustaining demurrer, with costs, with leave to plaintiffs to serve, within twenty days, an amended complaint on payment of costs of demurrer and of this appeal.  