
    Henry Pearce and ano., Resp’ts, v. Mary E. Moore, App’lt.
    
      (Court of Appeals, Second Division.
    
    
      Filed, May 3, 1889.)
    
    
      Í. Real property—Claim to—Necessary allegations in complaint— Code Civ. Pro., §§ 1638-1639.
    A complaint in an action brought to compel the determination of a, claim to real estate, alleging seizin in the plaintiff, and actual possession of the property for upwards of three years next previous to the commencement of the action, will bring the case within the provision of Code Civil Procedure, sections 1638-1639.
    3. ■ Same—Adverse possession—When deed void—(1 R. S., 3d ed., p. 733, § 147).
    At the time of the delivery of defendant’s deed, the plaintiff was in possession as owner. Meld, that under the statute, which provides that “ every grant of lands shall he absolutely void, if at the time of the delivery thereof, such lands shall he in the actual possession of a person claiming under a title adverse to that of the grantor,” the deed to the defendant was void.
    
      Adelbert Moot, for app’lt; J. A. Ronayne, for resp’ts.
   Brown, J.

This action was brought to compel the deter; , mination of a claim made by the defendant to real estate in the city of Buffalo, which was adverse to the title of the plaintiff.

The complaint contains appropriate allegations to bring the case within the provisions of the Code of Civil Procedure on this subject. It alleged seizin in the plaintiff and actual possession of the property in question for upwards of three years next previous to the commencement of the action. Code, §§ 1638, 1639.

The answer denied the plaintiff’s title and possession, and alleged title in the defendant. There is no dispute upon the facts developed on the trial.

It appeared that the plaintiffs had been in possession of the land since January, 1869. In that month they took from Augustus Paul a quit claim deed for the property.

Paul claimed title under two deeds from the comptroller of the state, dated respectively February 14, 1862, and December 12, 1868, given upon sales of the land for taxes, and which purported to convey an absolute estate in fee-simple to the land. 1 R. S., part 1, chap. 13, § 99 (5th ed.).

Under these deeds, plaintiffs had continued in possession-until the commencement of the action.

The defendant traced a perfect paper title to the land back to the people of the state. The deed to herself, how- - ever, bore date October 27, 1881, and presumably was delivered on that day, and was executed by one Hiram Sherwood. Sherwood’s grantor was Nathaniel Case, who appears to have held the title to the property from November 14, 1854.

At the close of the evidence the court directed a verdict for the plaintiffs, and judgment having been entered and affirmed by the general term, the defendant has appealed to this court.

The deed to the defendant was void. The statute provides that “every grant of lands shall be absolutely void if, at the time of the delivery thereof, such lands shall be in the actual possession of a person claiming under a title adverse to that of the grantor.” 1 R. S. (2d ed.), 732, § 147.

There was no dispute as to plaintiffs’ possession of the land. They had occupied it as lessees under Paul for several years prior to 1869, and in that year they acquired Paul’s title, and under that title they claimed to be the owners, and there was no claim made on the trial, as there could be none, that such title was not adverse to the title of Case and Sherwood, who were defendant’s grantors.

It was wholly immaterial, therefore, whether the comptroller’s deeds to Paul were valid or void. As against the defendant, the plaintiffs were entitled to the possession of the land, and as against plaintiffs’, defendant’s deed was void, and the proof failed to establish a title in her.

There is nothing in the case of Chamberlain v. Taylor (92 N. Y., 348), cited by defendant, to support her contention that she established a title to the property.

That was an action of ejectment brought by the plaintiffs for the benefit of their grantee. Such an action is main- . tained not on the grantee’s title, for he has none, but proceeds on the theory that the deed to the grantee is void and the grantor’s title is neither extinguished or transferred, but remains valid and effectual. As was pointed out in that case, the action is not founded upon the illegal deed, but in disaffirmance of it.

In Livingston v. Proseus (2 Hill, 528), the rule applicable to deeds of this character is stated as follows : “As against the person holding adversely, the deed is utterly void, a mere nullity. There was an attempt to convey, but the parties failed to accomplish the object. The title still remains in the original proprietor and he must sue to recover the land.”

The defendant’s deed was absolutely void and if, as it is claimed, there were such defects in the proceedings to sell the land for taxes as to render void the comptroller’s deed to Paul, the title to the land was still in the defendant’s remote grantor and upon that title must be founded all proceedings to recover possession of the land from the plaintiffs.

The judgment was right, and must be affirmed, with costs.

All concur.  