
    Ida Leidenthal and William Leidenthal, Respondents, v. Mary Leidenthal and Others, Appellants, Impleaded with Elizabeth Leidenthal, Wife of William Leidenthal, and Elizabeth Leidenthal.
    Second Department,
    July 23, 1907.
    Partition — issue as to title — conveyance set aside.
    One seeking a partition as heir may embody in his complaint an action to set aside a deed made' by the ancestor,'and the question of delivery and -acceptance of the deed and the identity of the grantee may be determined in such action.
    
      Possession by a 'plaintifi claiming in fee is not necessary to the maintenance of an action of partition. ■ . «
    Evidence examined and findings that the defendant was not the grantee and that the conveyance was without consideration and never delivered affirmed..
    Appeal by the defendants, Anna Maria Leidenthal, .sued as Mary Leidenthal, and others, from an., interlocutory judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Kings on the 4th day of March, 1907, upon the decision of the court, rendered after a trial at the Kings County Special Term, confirming the report of .a referee, with notice of an intention to bring up for review upon such appeal an order of reference entered in' said clerk’s office on the 23d day of November, 1906.
    
      Francis A. McCloskey and Charles J. Belfer, for the appellants.
    
      James C. Cropsey [Charles A. Wendell with him on the brief],' for the respondents, . -
   Rich, J,:

The defendants appeal from an interlocutory judgment in an action brought to have certain deeds of real property, situate in .the borough of Brooklyn,. executed by plaintiff’s deceased father, Christian Leidenthal, and his wife to Anna Maria Leidenthal,.' declared null, void and of no effect because of their non-delivery to and. acceptance by Anna Leidenthal, a daughter of the decedent and a minor at the time of their execution; that the grantee named in such deeds is such daughter; that upon the death of said Christian -intestate said realty vested in his heirs at law, of whom the plaintiffs are two, and that partition be had among such heirs as their interests may appear.. The contention of the defendants is that the grantee in said deeds is the widow:—sued by the name of Mary ” ■—and that she is the sole owner and in the sole possession of said property. They contend,that the action is for partition only ánd cannot be maintained for the reason that it is not alleged that the plaintiffs hold and are in possession as joint tenants or tenants in common of the property sought to be partitioned as required by section 1532 of the Code of Civil Procedure, and that the proof shows that the defendant widow is and has been since said conveyances- were made in the sole possession thereof,'and that the trial court- erred in not dismissing the complaint upon their motion based on that ground, citing Doane v. Mercantile Trust Company (160 N. Y. 494). The complaint alleges a good canse of action for the setting aside of the deeds, as well as for partition, and the question whether the grantee named in the deeds was the daughter, and if so, whether there had been a delivery and acceptance, were proper subjects of inquiry. (Booth v. Fordham, 73 App. Div. 109; Drake v. Drake, 61 id. 1.)

It is well-settled law that all controversies as to the title of prop, erty sought to be partitioned may be litigated and decided favorably to a plaintiff, although in .the same action he obtains partition. (Place v. Kennedy, 89 App. Div. 167.) The Court of Appeals in Weston v. Stoddard (137 N. Y. 119); Satterlee v. Kobbe (173 id. 91) and Wallace v. McEchron (176 id. 424) has established the rule that possession is not necessary to the maintaining of an action of partition by one having an interest by ownership in fee in the property. In the Doane Case (supra) no facts were alleged showing that the plaintiff had any interest in the property; while in the case at bar it is alleged that the deceased was seized in fee of the premises when he executed the deeds ; that they were invalid and void, and for that reason, the grantor dying intestate, the property descended to' his heirs at law, whose names and the interest of each are specifically stated, and it appeared upon the trial that three of such heirs and the widow were in the actual occupancy of the property.

The facts presented are extraordinary, and the contentions of the respective parties find support to an almost equal degree. Christian Leidenthal, the deceased grantor, was an active, forehanded German who, during his lifetime, had acquired property of considerable value. He was twice married, his first wife being the mother of liis six children, who are parties to the action; no children were born of his second marriage. On June 11, 1890, he married the woman who is now his widow, he being then forty-eight and she forty-one years of age. Their married life was a happy one. He was then engaged in conducting a meat market business and derived an income from the rentals of some of his real property. Shortly prior to the execution of the deeds one of his tenants threatened to sue him for damages. The evidence clearly establishes that the main cause leading to their execution was his apprehension that a judgment would bef recovered and enforced from his property. By five deeds and a bill of sale dated May 1, 1902, acknowledged May fifteenth and recorded and filed May sixteenth, in which deeds' his wife by the name of “ Mary Liedenthal ” united, he conveyed all of liis real property (being that which is the subject of this action) and transferred his business to “ Anna Maria Leidenthal ” without describing the grantee as either wife or daughter; and the only meritorious question of fact presented by the record is whether his widow of his daughter Anna is such grantee.

■The learned justice at the trial found, among other things, that the Anna Maria Leidenthal named in said deeds was the daughter of Christian Leidenthal; and his wife, the' defendant Mary Leidenthal, intended that the said daughter of Christian Leidenthal should be the grantee therein,.and that the deeds were without consideration, never delivered to the grantee, and void. We cannot say that these findings are against the weight of the evidence, and. the ■ judgment must he affirmed; with costs. ,

Hirschberg, P. J., Woodward, Jenks and Miller, JJ., concurred.

Interlocutory judgment affirmed, with costs.  