
    Sarah A. Jones, Appellant, v. William J. Nichols and Others, Respondents.
    
      Complaint in ejectment setting up a hr each of an agreement to support the grantor of the defendants — insufficiency of the record on appeal.
    
    A complaint alleged that the plaintiff deeded certain premises, the title to which she -had derived from her husband, to the defendants in consideration of their caring for, supporting, clothing and feeding the plaintiff and her infant daughter in accordance with the terms of the said deed and of a contemporaneous written agreement, and that, in case of the defendants’ failure to perform, the deed should he void; that the defendants failed to perform and- that the deed thereupon became void and of no effect, but that the defendants, notwithstanding their failure to perform, entered into the possession of tlie premises and unlawfully withheld the same from the plaintiff to her damage. It demanded, as relief the immediate possession of the premises together with á certain sum' for the use and occupation thereof.
    The report of the referee, to whom the case was referred, stated that the defendants moved for a dismissal of the complaint upon the ground “ that it appeared from the pleadings and opening of counsel that plaintiff’s remedy, if she had . any, was an action on the covenants contained in said deed or agreement, or an action to establish and foreclose a lifen upon the premises referred to- in the complaint,” and that the parties had ¡stipulated that the agreement, and ¡will of the plaintiff’s husband, and the pleadings might he considered by the referee in determining the action. It also recited that the referee granted the motion to dismiss the complaint upon the pleadings and upon the opening of counsel, and after stating the grounds of the decision, added, “ Copies of said will, deed and agreement are hereto annexed, marked Exhibits ‘A,’ ‘B’ and ‘ O’ respectively.” There was nothing to show ¡that such'exkibits were offered or received in evidence and, the opening of the plaintiffs counsel did not appear in the record. ' ",
    Upon an appeal from a judgment entered upon the dismissal of the complaint, . it was
    
      Held, that the complaint stated a cause ¡of action in ejectment;
    That the record on appeal was insufficient to enable the court to determine with certainty whether the lights of the respective parties depended upon the will-of the plaintiff’s husband, and the deed and contemporaneous agreement, and that the judgment should he reversed.
    Adams, J., dissented.
    Appeal by the plaintiff, Sarah A. Jones, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Oswego on the 13th day of January, 1898, upon the report of a referee.
    
      J. W. Shea, for the appellant. ¡
    
      S. C. Huntington, for the respondents.
   McLennan, J.

The action was commenced on the 19th day of January, 1896, td recover possession of certain premises situate in the town of Albion, Oswego county, described, in the complaint.

It,is alleged in the complaint that on January 1, 189é, and for some time prior thereto, the plaintiff was lawfully possessed, as owner in fee simple, of the premises described in the complaint, having received the title thereto from her husband, one Osmon Jones; that the plaintiff, being such owner and in possession, deeded the same to the defendants Nichols, upon the express consideration that the defendants Nichols would care foiy support, protect, clothe, feed and furnish the plaintiff, and her infant daughter Edith, in accordance with the terms and conditions of said deed and a written agreement executed contemporaneously therewith; and that in case of failure so to perform, said deed was to be void and of no force and effect.

It is then alleged that the defendants Nichols wholly failed to so perform, and that said deed thereupon became wholly void and of no effect; that the defendants, notwithstanding their failure to so perform in any respect, on the 10th day of January, 1894, entered into the possession of said premises, and unlawfully withheld the same from the plaintiff, to her damage in the sum of $300. The plaintiff demands immediate possession of said premises, together with the sum of $300 for the use and occupation thereof. The answer interposed to the complaint by the defendants is a general denial.

The issues so framed were, by an order duly made, sent to a referee to hear, try and determine the same. Independent of the report of the referee, there is nothing to indicate when or where the ■case was tried; nothing to indicate what evidence was taken or proceedings had before the referee. Independent of such report, it cannot be determined by the record that any trial of the issues was ever had before the referee.

The referee in his report states that he has been attended by the attorneys for the respective parties; that he listened to the opening ' address of counsel for the plaintiff, and he repeats a portion of what he claims the counsel for the plaintiff said in his opening; and the report of the referee then proceeds: “ That thereupon the defendants moved for a dismissal of the complaint, and for judgment.dismissing the complaint, on the ground that it appeared from the pleadings and opening of counsel that plaintiff’s remedy, if she had any, was an action on the covenants contained in said' deed or agreement, or an. action to establish and foreclose a lien upon the premises referred to in the complaint.”

After oral argument by respective counsel, and after written briefs had been filed, and the respective parties had stipulated that the agreement and will and pleadings might be considered by him in determining the action, the referee adds, I do find and decide and order that said motion to dismiss the complaint herein, upon' the pleadings and upon the opening of counsel, and for judgment accordingly, be and the same hereby is granted; that defendants have final judgment against the plaintiff dismissing the com: plaint herein, with costs to be taxed, and I direct that final judgment be entered accordingly.”

The learned referee then states, the grounds of his. decision, and adds: “ Copies of said will, deed and agreement are hereto annexed, marked Exhibits A,’ B ’ and C ’ respectively.”

There is nothing to show that Exhibits. A, B and C. were offered or received in evidence. :

The record contains a stipulation signed by the attorneys for the respective parties, as follows: It is hereby stipulated by and between the attorneys for the separate parties herein, that the foregoing copies of notice of appeal, judgment roll, report of referee, exceptions to said report, exhibits and order sittings, case and exceptions, are true and correct copies éf the originals as filed in the office of the clerk of Oswego county, and of the whole thereof.”

Upon the complaint we think á good cause of action in ejectment is stated. The opening of plaintiff’s counsel does not appear in the record, and, therefore, cannot be considered by this court. The record does not show that the entire title of the plaintiff to the premises in question came to her through the will of Osmon It. Jones, referred to by the referee as Exhibit A, or that the deed Called by the referee Exhibit B is the one referred to in the plaintiff’s complaint, or that Exhibit C is the agreement referred to in such complaint. The record in this case is entirely insufficient to enable the court to determine the rights of the respective parties. Whether such rights depend upon the will of the plaintiff’s deceased husband, tne deed which the plaintiff executed to the defendants Nichols, and the agreement which it is alleged was executed contemporaneously with such deed, ¿an only be guessed at.

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

Spring and Nash, JJ., concurred; Hardin, P. J., concurred in result; Adams, J., dissented.

Adams, J.

(dissenting):

While the record in this case is eértainly not what it ought to be, yet I think it is sufficient for the purposes of this appeal. The judgment roll shows that the case was, by consent of the plaintiff’s attorney, referred to a referee to hear and decide the same, and the referee’s report indicates that not only was a trial had before him, but it states explicitly what took place at that trial, and no question as to .the accuracy of such statement is raised .by either counsel. This being the case, it is apparent that upon the trial both the deed from the plaintiff to the defendants, William and Alice Nichols, and the agreement between the parties, entered into contemporaneously therewith, were received in evidence.

This deed, which is absolute in form, does not contain any provision for re-entry or forfeiture, nor does the contemporaneous agreement to which it refers ; and nothing appears in either instrument to warrant the inference that the estate conveyed was intended to depend upon the performance of a condition, either precedent or subsequent. Indeed, it seems to me quite clear that within well-settled rules the language of both instruments must be so construed as to import a covenant and not a condition (Graves v. Deterling, 120 N. Y. 447; Cunningham v. Parker, 146 id. 29), and if so, it necessarily follows, in view of the admission made by counsel in opening the case to the referee, that the plaintiff has mistaken her remedy.

I think.the judgment appealed from should be affirmed.

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