
    Elizabeth G. Lowber, Plaintiff and Appellant, v. William Kelly et al., Defendants and Respondents.
    1. A grantee of land, under a deed which, is void by the statute by reason of the land being held by a third person- adversely to the grantor, cannot, upon his grantor's refusal to bring an action to recover the land or to allow such action to- be brought in his name; maintain an action against the grantor and the adverse possessor, to. have the latter adjudged to surrender possession to the grantor, and the title and possession adjudged to the plaintiff as against the grantor.
    2. An action to recover the lands must be brought by the grantor, or in his name, by the grantee; but it cannot be so brought in his name without his consent, except since the statute of 1862.
    (Before Robertson and White, J. J.)
    Heard, June
    decided, October 9, 1862.
    This action was brought by the plaintiff, who was out of possession of certain lands she cl aimed,, against William Kelly and Gabriel Winter, defendants, the latter of whom was in possession thereof, to obtain a judgment, that the title to it is vested in the defendant, Winter, and he is entitled to the possession thereof,, and that as between him and the plaintiff, the title in fee simple thereto is in the latter, and that the defendant, Kelly, be required to surrender to the plaintiff the possession of the premises,, and pay her damages for withholding the same.
    The complaint alleges the ownership in fee of the premises in question, by one Gabriel H. Winter, in January, 1848, and its descent to the defendant, Winter,, as his sole heir at law, and a conveyance by the latter in September, 1860, of the premises to the plaintiff in fee. It further alleges that the defendant, Kelly, claims that at the time of the execution of the conveyance to the plaintiff, such premises were in his possession, and he then claimed them under a title adverse to that of Gabriel Winter. It also alleges that the plaintiff has not parted with any rights and claims to be owner in fee simple of such premises, and did not know, at the time of the conveyance to her, that the defendant, Kelly, claimed such premises under a title adverse to that of the defendant, Winter j also that she had requested Kelly to deliver up the premises, and the defendant, Winter, to allow her to commence a suit in his name, to. recover possession of such premises, offering to indemnify him against any costs, but he has refused.
    The demurrer to the complaint sets forth as its grounds,
    1st. That it is not alleged therein that Gabriel H. Winter was in possession of the premises in question on the 20th of June, 1842, or at any other time, or died seized thereof, or that the defendant, Winter, was ever seized of such premises in September 1860, or at any other time, while it is admitted that William Kelly claims that he was in possession of the premises adversely to the defendant, Winter.
    2d. That there is a defect of parties by joining the defendant, Winter, with the defendant, Kelly, in an action at law, in the nature of ejectment against the latter, at the same time that the title of the premises may be declared in the defendant, Winter, as between him and the plaintiff.
    3d, That several causes of action have been improperly joined, seeking equitable relief against Winter, and a judgment for damages against Kelly.
    This Court, at a Special Term, held by Chief Justice . Bosworth in December, 1861, ordered judgment on the demurrer, in favor of the defendant, Kelly, with costs. From which order and judgment the plaintiff brings the present appeal. The decision at Special Term is reported in 17 AbbotFs Pr., 452.
    
      Ira Shafer, for plaintiff, .(appellant.)
    
      I. There is no pretense that this is an action at law against Kelly, founded upon the. conveyance from Winter to the plaintiff, and hence the cases of Burhans v. Burhans, (2 Barb. Ch., 398,) Jackson v. Demont, (9 Johns., 55,) Jackson v. Olitz, (8 Wend., 440,) and Cole v. Irvine, (6 Hill, 634,) and not controlling.
    It is conceded by the demurrer that, as between Winter, whose default admits the allegations of the complaint, and Kelly, the former is the owner in fee and entitled to possession, and the latter has neither the fee nor the right to possession.
    The demurrer, also, admits that, as between the plaintiff and Winter, in virtue of the deed, the former is the lawful and equitable owner, and entitled to possession.
    II. The plaintiff’s right to the relief demanded is sustained by authority. The statute relied upon by defendant is considered with disfavor. (Humbert v. Trinity Ch., 24 Wend., 611; Hoyt v. Thompson, 1 Seld., 320, 347; Sedgwick v. Stanton, 4 Kern., 289; Crary v. Goodman, 22 N. Y., 170; 4 Kent’s Com., 449.)
    The maxim that there is no “wrong without a remedy,” means in one sense “the means given by the law for the recovery of a right,” and “whenever the law gives anything it gives a remedy for the same.” (3 Bl. Com., 123; Brooms’ Legal Maxims, 91.)
    The remedy that the plaintiff seeks has been recognized and adjudged from an early day, in several cases in this State, and in Massachusetts. (Jackson v. Vredenbergh, 1 Johns., 159; Jackson v. Brinkerhoff, 3 Johns. Cas., 101; Williams v. Jackson, 5 Johns., 489, 499; see Foot and Van Vechten’s Arguments; Jackson v. Leggett, 7 Wend., 377; Livingston v. Proseus, 2 Hill, 526; 4 Kent’s Com., 449; Wolcot v. Knight, 6 Mass. R., 418; Brinley v. Whiting, 5 Pick., 348.)
    The title is not extinguished, but remains in the grantor, who recovers for the benefit of the grantee. (Livingston v. Proseus, 2 Hill, 529.)
    
      The old practice was to insert counts in the declaration on the title of the grantor and the grantee, so that if the suit failed as to the one, it might succeed as to the other.” (Livingston v. Proseus, supra; 2 Burrill Prac., 314; Ely v. Ballantine, 7 Wend., 470; Adams on Ejectment, 1st Am. ed„ 188.)
    The objections now raised were made in Williams v.' Jackson, (5 Johns.; 489, 493,) and in Wolcot v. Knight, (6 Mass. R., 418,) and expressly overruled.
    To count upon demises from different lessors, and claim and recover on different titles, and to insert in the declaration as many counts as the plaintiff pleases is not a practice which is authorized by the Code. (St. John v. Pierce, 22 Barb., 362.)
    Under the Revised Statutes, the declaration might contain several counts, and several parties might be named as plaintiffs, jointly in one count and separately in others. (2 R. S., 304, § 11; Ely v. Ballantine, 7 Wend., 470.)
    And if the plaintiff had made Winter one of the lessors without his permission, his name would not have been stricken out on motion. (Adams on Ejectment, 1st Am. ed., 188, 189; Ely v. Ballantine, 7 Wend., 470; Doe d. Vine v. Figgins, 3 Taunton, 440.)
    Thus before the Code, the plaintiff would have had an adequate remedy and could have maintained the actión.. .
    His rights as against Winter, and Winter’s rights as against Kelly have not been affected by the Code.: The*,, remedy only has been changed.
    The action is brought, according to $ 111 of the Code, * by the “real party in interest.” \
    Winter is joined as a defendant as “ a necessary party'"1' to a complete determination or settlement of the questions involved therein’’ (Code, § 118.)
    And “the Court may determine any controversy between the parties before it, when it can be done without prejudice to the rights of others, or by. saving their rights. (Code, $ 122.)
    
      The plaintiff cannot compel Winter to sue. Nor is he “ the real party in interest.” (See Code as amended 1862, §111.)
    If our positions are unsound, the Code has deprived a party, in an action to recover ¡the possession of real property, of a remedy well recognized and • adjudicated before and since the Revised Statutes.
    If section 455 of the Code does not enable the plaintiff to avail herself of the provisions of the Revised Statutes, as has been adjudged, then the Code must furnish a remedy, or she is without any.
    If Winter should sue Kelly, a- recovery would enure to the benefit of Mrs. Lowber, (Livingston v. Proseus, 2 Hill, 526, 529;) and when he fails or refuses to sue, the law enables her to accomplish the same result by making him a defendant, and by adjudicating the rights of all of the parties.
    Kelly being a trespasser, cannot raise objections that Winter does not raise, but expressly waives by making default, and which Winter could not raise because of the estoppel created by his deed. (4 Com. Dig., 76, 81, [A.] [D.])
    As between the parties to the deed, it might operate by way of estoppel and bar the grantor. (4 Kent’s Com., 449; Jackson v. Demont, 9 Johns., 55; Livingston v. The Pern Iron Co., 9 Wend., 516; Van Hoesen v. Benham, 15 Wend., 164.)
    Winter cannot claim .as against his own deed, whether it is an estoppel or not. (Jackson v. Bully 1 Johns. Cas., 90; Jackson v. Stevens, 16 Johns., 110.)
    A quit-claim deed passes all the title of the grantor in esse, as well as a warranty deed.
    It is no objection that the recovery will enure to the benefit of the grantee in the deed. (Livingston v. Proseus, 2 Hill, 526, per Bronson; see argument of Van Vechten, in Williams v. Jackson, 5 Johns., 489, 492.)
    What the grantee accomplished before the Code indirectly, and by means of a legal fiction, in a case like the present, we seek to accomplish directly by a statement of 
      the facts of the case as they exist. Every action now is emphatically an action on the case, and before the Code upon the facts stated in our complaint the plaintiff would have recovered.
    At all events, Winter would have recovered for the. benefit of the plaintiff. And the Code has not changed the legal rights of parties. If the doctrine contended for by the counsel for the defendant is to prevail, a person who is in possession of land without title may hold it forever. (See Van Vechten’s argument in Williams v. Jackson, 5 Johns., 491.)
    
      David P. Hall for the defendant, Kelly, (respondent.)
    I. The demurrer is well taken, because it appears by the complaint, that the defendant Gabriel Winter was out of possession of the premises described in the complaint at the time of his grant to the plaintiff, to wit, on the 14th day of September, 1860, and that the defendant William Kelly was then in possession of said premises, claiming under a title adverse to that of the plaintiff. The grant was therefore void under the statute of maintenance. (1 R. S., p. 739, §§ 147 and 148.)
    II. The demurrer is well taken because several causes of action are united in one complaint, a part against Kelly, and a part against Winter. First, the complaint is multifarious ; second, thereTs a misjoinder of parties defendant; one having an interest^ and the other having no interest, in the premises in controversy. The complaint must show that each person named as defendant has or claims an interest in the matter in controversy. (Pinckney v. Wallace, 1 Abbotts’ Pr., 82.) Here it is not pretended, that Winter has any interest in the suit,, or that he claims to have any interest.
    III. The complaint does not state facts sufficient to constitute a cause of action, because it fails to state that Winter, the plaintiff’s grantor, was possessed of the premises granted at the time of his grant to the plaintiff, and fails to state that he ever was possessed. It should have stated affirmatively, that at the time of the grant, he was in possession, thereby giving the defendant an opportunity to traverse the fact.
    IV. The plaintiff’s complaint does not. state facts sufficient to constitute a cause of action against the defendant, Winter, because the plaintiff, by taking a deed which the statute declares to be void, and which confers upon the plaintiff no right as against Kelly, did not acquire thereby any equity, which entitles her to require the defendant, Winter, on being idemnified, to bring a suit to recover the possession of the premises for her, nor, (on his refusing to do so,) to maintain a suit against Kelly ■ and Winter in her own name, to recover possession of the premises as against Kelly.
    Hence there was here a palpable misjoinder of parties defendant, the provisions of the Code not warranting: the making Winter a party, for the purpose claimed in the complaint, for he is not the actual occupant, nor a person exercising acts of ownership, or claiming title thereto, or to some interest therein, at the commencement of the suit, which is necessary to render him liable in ejectment. (Denio, J., in Child v. Chappell, 5 Seld., 259; Ingraham, J., in Pinckney v. Wallace, 1 Abbott’s Pr., 82.)
   Robertson, J.

The Revised Statutes (vol. 1, p. 739, § 148) provide that every grant of Énds shall be absolutely void, if at the time of the delivery thereof they shall be in the actual possession of another claiming under a title adverse to that of the grantor; this is substantially the same as the Revised Laws of 1813. (Yol. I, 173, § 8.) The plaintiff’s case requires that such statute should be read as though it made such grant void only in a court of law, but allowed the full benefit of it to be obtained in a court of equity, by simultaneously calling upon the grantor to recognize the title of the grantee, and compelling the claimant under an adverse possession, to surrender it. The process of reasoning, by which it is proposed to accomplish this result, is apparently simple, and is as follows: The party claiming adversely is, of course, not entitled to hold against the former real owner and grantor of the plaintiff, and such grantor is not entitled to hold against the plaintiff, (Livingston v. Proseus, 2 Hill, 526, 529,) therefore, the adverse tenant is not entitled to hold against the plaintiff; this, however, leaves one gap, to wit: that the statute in question disables some of those, who otherwise would have a right to the land, from its recovery. Whatever may be the disfavor, into which the statute has fallen, courts are still bound to enforce it, leaving the Legislature to carry that disfavor if it exist to its conclusion, viz., a: repeal. ° It was enacted to prevent actions being brought for land, except, either by those who were dispossessed of them, or those whom the law made their representatives, and to discourage acts of maintenance. The plaintiff would have its object to be simply to compel a party to have recourse to a court of equity instead of a court of law. Ho such purpose, has ever been suggested before for such statute. There is no doubt, that, in every case like this, counts might formerly have been inserted in a declaration, claiming under both grantor and grantee; so, that, if the grantor had actually had previous possession the grantee might recover. It is equally true that, although the whole truth must be told, under the present system, there is no difficulty in recovering under it by stating the conveyance to the plaintiff and omitting to state the adverse possession, if there is any doubt about it; because, if it be certain, the grantee’s right to possession must fail. I do not see that the plaintiff could ever have maintained, in its proper sense, the action in her own name if the possession was adverse. She might have carried it on in another’s name; but so far as she was concerned the issues must be decided against her. Winter is, certainly, entitled to sue, and is, therefore, the real party in interest; until he recover the plaintiff is bound to abstain from suing.

The error of the reasoning on behalf of the plaintiff lies, in supposing that without the future action of her grantor, she has gained an immediate right to the land; this would repeal the statute entirely. The law so far tolerates the conveyance to a grantee, of lands held adversely, as to acknowledge his right when his grantor has recovered the lands; hut, as the law does not permit lawsuits for land to be sold, the grantee is dependent upon the volition of the grantor for realizing his purchase. It is true, the party holding adversely cannot set up the conveyance by his adversary against him, for it does not injure him; but this is different from allowing a party to accomplish what the statute meant to defeat, to wit, the promotion of litigation.

, , It is not strictly accurate to say the plaintiff could, under the circumstances, of this case, before the adoption of the Oode, have recovered ,• for the complaint alleges that the defendant, Winter, refuses to bring any suit. Will it be pretended that any authority, before the Oode, sanctioned a suit brought by her, without his consent in his name, or her own, at her election ? If so, no section of the Oode has altered it, and there is no need of making Winter a party. The statute of 1862 would be in such case useless, and half the prayer for relief sotight. in this action would be superfluous. Undoubtedly that statute sanctions actions hereafter brought by the grantee in the grantor’s name; but it no where sanctions actions in the grantee’s name. Until that change was made, the plaintiff could not have obtained any relief in the grantor’s name, without his consent; and the .argument of the learned counsel, ixxWillimis v. Jackson, (5 Johns., 491,) was perfectly sound, with a single qualification, that a person in possession of land may hold it forever, provided the party dispossessed ■ does not bring .a suit in his own name. He cannot sell the right of action to others.-

Various anomalies are proposed in this case, as, for example, that Winter shall recover judgment in a suit in which -he is defendant, and lose the fruits of it forthwith by. a simultaneous judgment against him in the plaintiff’s favor; these are clearly two different causes of action. They do not arise out of the same transaction, one growing out of the dispossession, the other out of the deed; nor out of transactions connected with the same subject of action, the land not being the subject of the action, but its wrongful possession, (Durkee v. Saratoga and Wash. R. R. Co., 4 How. Pr., 226; 2 Code R., 145; Colwell v. N. Y. & Erie R. R. Co., 9 How. Pr., 311; Coster v. Same, 5 Duer, 677,) and clearly the cause of action against each defendant does not affect the other. (Code, § 167.)

The complaint is also defective on the plaintiff’s own theory, since it does not allege that Kelly ever had adverse possession, but only that he claims that he claimed it. This would not make the grant to the plaintiff void, nor show any necessity to make Kelly a party to the relief sought against Winter.

But the complaint is defective on the merits, because no equity could formerly arise from a deed declared void, so far as it undertakes to confer any rights to sue a third person; and this action was commenced before the late statute, and is not iff the grantor’s name.

The order should be affirmed with costs.

White, J., concurred in affirming the order.  