
    JOHN TOWNSHEND, Respondent v. CAROLINE O. BOGERT, et al., Impleaded, &c., Appellants.
    
      Partition, action of proper parties thereto.
    
    This action is in partition and, as against the defendants, now appellants, the complaint alleges: “ That the said defendants claim some right, title or interest in said premises, the exact nature of which is unknown to plaintiff, and which is a cloud upon the title of said premises,” and asks •judgment that they have not any right, title or interest, claim or demand, of, to, or upon, or against said premises or any part thereof,” and that said defendants “ be forever barred and foreclosed by the sale,” etc. A good cause of action for partition is set forth as against the other defendants. The defendants (now appellants) demurred to the complaint (1.) That it did not state facts sufficient to constitute a cause of action. (2.) For improper joinder of causes of action not affecting all the parties. The court at special term overruled the demurrer.
    
      Held, That actions of partition are regulated by the Code of Civil Procedure, sections 3532 to 1595, inclusive. Sections 1538 to 1540, inclusive, contain the provisions as to the proper parties to such an action. Section 1538 provides who must be made parties, but the provisions of the latter section, do not apply to these defendants (appellants). Sections 1539 and 1540 provide who may be made parties (at the election of plaintiff). There is no provision made in any of these sections for making a person who merely claims an interest in the property a party. Before a person can be properly made a party to such an action, he must either have an estate in the premises or in some portion thereof, or he must have alien or interest which attaches to the entire property or to an undivided share or interest therein, and the share or interest of each defendant must appear from the complaint. Section 447 of the Code of Procedure does not permit the plaintiff in an action of partition to include and make a person a party to the action who claims adversely to the plaintiff and compel such person as a party to litigate his interest in the property in the action of partition. An action in partition cannot be instituted and maintained to determine the title to real property or to ascertain who holds the legal title thereto. It cannot be made a substitute for an action in ejectment or other action to establish the legal title of adverse claimants to real estate. If the allegations of the complaint were sufficient to maintain an action to declare the interest claimed by the defendant a cloud upon the title to the premises, or to compel a determination of a claim of defendant to some estate therein, ye.t neither of these causes of action could be joined with a cause of action for a partition of real estate. The demurrer should have been sustained.
    
      Before Sedgwick, Ch. J., and Ingraham, J.
    
      Decided January 5, 1891.
    Appeal from interlocutory judgment overruling the demurrer to the complaint.
    
      Dillaway, Davenport & Leeds, attorneys, and John S. Davenport of counsel, for appellants, argued:—
    I. The complaint does not bring these defendants within the sections of the Code permitting their joinder as parties defendant. Section 1539 is that the plaintiff “ may make a person having a lien or interest which attaches to the entire property a party defendant.” In that case the final judgment may award the interest or leave it unaffected. This does not authorize a judgment cutting it off. The complaint does not allege that we are parties “having an interest.” Its only allegation is that we “ claim an interest.” Its prayer for judgment is not to ascertain and award the interest, but that we have no interest. This prayer implies an allegation that our claim is false. The allegation that our claim is a cloud is to the same effect—against the pleader. Section 1540 allows creditors having an interest to be made parties, but their interest must be set forth. Section 1541 regulates proceedings against unknown owners, but not mere claimants. None of these sections contemplate defendants who have no interest, but merely unjustly claim one.
    II. One who has no interest is neither a necessary nor a proper party in partition. Miller v. Wright, 107 N. Y. 194, p. 201.
    III. An action in partition is in equity. The complaint fails to show that defendants’ claim is one cognizable in equity. Therefore jurisdiction does not appear on the face of the complaint. Hosford v. Merwin, 5 Barb. 51.
    
      IV. The cause of action alleged against appellants is one to compel determination of a claim to real property and nothing else. The complaint states that these defendants “ claim ” some interest which is unknown, etc. It does not allege that they have an interest. The pleader does not intend to say that they have an interest. On the contrary, he expressly states that they have no right when he says it is a cloud, and also when he asks judgment that they be declared to have no right, for how can he ask that judgment if he alleges they have some interest. If he means that we have some interest, then he should say so, and ask that it be ascertained and recognized.
    V. An action for nartition cannot be made a substix tute for an action to compel determination of claim to real estate. Van Schuyler v. Mulford, 59 N. Y. 426. “ The general rule is that partition deals only with joint or common interests. All questions respecting the legal title of adverse claimants must be settled in an appropriate action.” Barrett, J., in Esterbrook v. Savage, 21 Hun, 145. In Barnard v. Onderdonk, 98 N. Y. page 164, the court say (at the foot of the page), “It may be that the defendant cannot be compelled to bring his claim of right under a mortgage into court for adjudication in a partition suit.” They say, “ this question we do not decide.” In Jordan v. Van Epps, 85 N. Y. 427, page 435, the court says, “ that the cases there cited sustain the general principle that a prior encumbrancer, or one who claims adversely, is not a proper party in a foreclosure suit, or in actions of a kindred character, involving a question of priority as to liens, or a claim to dower, adverse to the interest of the plaintiff.
    VI. As stating a cause of action to compel determination of claim to real property the complaint is fatally defective. It fails to allege the matters required by §§ 1638 and 1639 of the Code, to wit: (1) Plaintiff’s source of title. (2) Three years’ possession. (3) That defendants’ claim is of the character presented by § 1638. It alleges that one of the defendants claiming is an infant, and thus throws the case outside of 1638, which excludes infants.
    VII. As stating a cause of action to remove a cloud, the complaint is fatally defective. Hayward v. Buffalo, 14 N. Y. 534; Moores v. Townsend, 102 Ib. 387. It shows no facts showing a cloud. It shows no reason for the intervention of equity. The allegation that it is a cloud is a mere allegation of a conclusion of law. It goes without saying that a complaint to remove a cloud must show facts forcing the conclusion that there is a cloud.
    VIII. Causes of action are improperly joined as not affecting all defendants. The cause for partition does not affect us, for we have no interest to be partitioned or subject to partition. The cause to compel us to assert our claim for determination does not affect The Mayor, etc., for his claim is a different one from ours, and the converse is true.
    
      John Townshend, attorney and of counsel, for respondent, argued:—
    I. The demurrer admits the allegation of fact in the complaint. It therefore admits that the plaintiff is on the face of the complaint entitled to a partition or sale, and also that the demurrants claim some right or interest in said premises.
    II. The complaint in an action for partition is governed not only by the sections of the Code of Civil Procedure, § 481, requiring a statement of facts constituting a cause of action, and by § 484 prescribing what actions may be joined, but also by § 1542 requiring a description of the property, and the rights, shares and interests of all the parties, so far as same are known to plaintiff.
    III. The question of parties plaintiff and defendant in an action for partition is regulated by the Code of Civil Procedure. § 447. Any person may be made a defendant who has or claims an interest in the controversy adverse to the plaintiff, or who is a necessary party defendant for the complete determination of the question involved, except as otherwise expressly prescribed. § 1539. Plaintiff may at his election make a person having a lien or interest which attaches to the entire property a defendant, in which case the court may award to such party his right or interest or reserve and leave same unaffected. Such a person not a party is not affected by the judgment. § 423. Notice may be given a defendant that no personal claim is made against.him.
    IV. The complaint complies with the requirements of sections 481 and 1542 by stating facts constituting the ground of action as against the tenants in common and by giving a description of the property and the rights and interests of the parties so far as known. The demurrer admits this. The complaint alleges, and the demurrer admits that the demurrants claim some interest in the premises, the nature of which is unknown to plaintiff. This claim of the demurrants is either adverse to the plaintiff or not adverse to the plaintiff. It is not alleged that the claim of these demurrants is adverse to plaintiff. Concede, therefore, that the interest of demurrants is not adverse to plaintiff, then the complaint states a cause of action against these demurrants; it states that these demur-rants claim an interest the nature of which is unknown’ that is, stating the interests of these demurrants “ so far as the same are known to plaintiff ” (§ 1542). This being so, the propriety of making these demur-rants parties is not to be determined upon demurrer, but upon the trial. Upon the trial the court will award to such party his right or interest or will reserve and leave same unaffected (§ 1539). The complaint, therefore, does state facts which shows a cause of action against these demurrants. It shows that these demurrants have, or claim, an interest necessary to a complete determination of the question involved. Had these demurrants not been made parties the court is imperatively commanded to order them brought in. Davis v. Mayor, 2 Duer, 663. (a) Where a complete determination of the controversy cannot be had without the presence of other parties the court must direct them to be brought in (§ 452). Or demur-rants might have applied to be made parties. (b) And where a person not a party to the action has an interest in the subject thereof, or in real property, the title to which may in any manner be affected by the judgment, and makes application to the court to be made a party, it must direct him to be brought in by a proper amendment (§ 452).
    V. If, on the other hand, the allegation in the complaint that these demurrants claim some right, title or interest, which is a cloud upon the title, is to be construed as an allegation that these demurrants have some claim to the premises in suit adverse to plaintiff, then these demurrants are necessary parties within the language of § 447, that any person may be made a defendant who has or claims an interest in the controversy adverse to plaintiff. But any way the demurrants are persons having a lien or interest which attaches to the premises. The demurrer admits this, and they are, therefore, proper parties within § 1539.
    VI. The demurrants are proper parties defendants, and as against such parties the complaint need not state facts constituting a cause of action. There has always been a distinction between necessary parties and proper parties. A necessary party is one whom the plaintiff must make a party, and without whom no complete determination of the question involved can be made (§ 447). A proper party is one whom the plaintiff may make a party at his option. As against a proper party the complaint has not necessarily to state facts constituting a cause of action; it is sufficient if the complaint alleges such party to have or claim an interest in the controversy adverse to the plaintiff. A common instance of this occurs in actions for foreclosure, wherein subsequent incumbrances are made' (proper) parties, with an allegation that they claim some interest subsequent to the mortgage. No facts are stated constituting a cause of action against such defendants; but no one ever dreamt of demurring, in such a case, because facts were not stated constituting a cause of action against such defendant ; they were properly made parties under § 447 because each “ has or claims an interest in the controversy adverse to the plaintiff.”
    VII. The complaint contains a statement that no personal claim is made on any of the defendants. If demurrants have no interest in the premises, then, as no personal claim is made against them, they have nothing to complain of and cannot be admitted to demur. But they cannot say they have no claim, because the demurrer admits they have. If demurrants have a claim then they can assert it. As appears by reviser’s note, the section 1543 was framed expressly to give an opportunity to a defendant to test the title of plaintiff or of any co-defendant in a suit for petition. Bliss’ Code, § 1543.
    VIII. The complaint contains one cause of action only—partition. Adding that some of the defendants —the demurrants—make some claim of lien upon the premises, does not constitute an additional cause of action. The statement that the claim is a cloud upon the title is a conclusion of law, not a statement of fact. Section 1539 authorizes the making parties of any person having a lien or interest which attaches to the entire property. Demurrants admit the allegation of the complaint that they claim a lien on the premises. Their claim must be either (1) rightful or (2) wrongful. Whether rightful or wrongful there can be no complete determination of the question involved until the rights of demurrants are disposed of. In either case it is within the language of section 447, which authorizes making defendant any person having or claiming an interest in the controversy adverse to plaintiff, or who is necessary to a complete determination of the question involved, except as otherwise prescribed. It is nowhere otherwise expressly prescribed. As the demurrants admit they claim a lien on the premises, they must be affected by a proceeding which may result in a judgment which will cut'off that claim. In Bogardus v. Parker, 7 How. 307, Mitchell, J., says : “ Plaintiff is entitled to a sale and to have the sale made free from all liens, so that the purchaser can obtain a perfect title to the property. If a sale is to be made it has been usual to make defendants all persons having any lien on the whole property or on any individed share.” And again (page 308): “ These inquiries are all incident to the one cause of action, the ownership of lands in common, and to the right to have that land sold free from incumbrances and to have the incumbrancers made parties to effect that purpose.”
   By the Court.—Ingraham, J.

The action is for a partition of real property. The complaint alleges that the property described is held in common by the plaintiff and the defendants, Townshend and Lock-woods, and that the • appellants claim some “ right, title or interest in said premises, the exact nature of which is unknown to plaintiff and which is a cloud upon the title to said premises.” Judgment is demanded for a sale of the property, and that the proceeds thereof be divided among the parties named as the owners thereof, and that it be adjudged that this defendant has not - a right, title or interest, claim or demand for, to or in or upon or against said premises or any part thereof, and that the defendants and all persons claiming under or through them be barred of all right, title and interest in said premises in possession, reversion, remainder or otherwise.

This defendant demurs on the grounds, first, that the complaint fails to state facts constituting a cause of action against this defendant, and, second, that causes of action have been improperly united. If the action be considered as an action of partition only, I do not think the complaint states a cause of action against the appellant. Actions of partition are regulated by the Code of Civil Procedure. Section 1532 to section 1595, inclusive; sections 1538 to 1540, inclusive, contain the provisions as to the proper parties to such an action. Section 1538 provides who must be made parties. The provisions of that section do not apply to this defendant. Section 1539 provides that plaintiff may at his election make a tenant in dower, or by curtesy, or for life, or for years, of the entire property, or a person having a lien or interest which attaches to the entire property, a defendant in the action. And section 1540 provides that a person having a lien on an undivided share or interest in the property may be made a defendant. It will be seen that no provision is made for making a person who merely claims an interest in the property a party. Before a person can be made a proper party to such an action, he must either have an estate in the premises or in some portion thereof, or he must have a lien or interest which attaches to the entire property, or to an undivided share or interest therein, and the share or interest of each defendant must appear from the complaint. Nor do I think that section 447 of the Code allows the plaintiff in an action of partition to make a person who claims adversely to the plaintiff’s title a party and compel him to litigate his interest in the property in such an action. That section provides that any person may be made a party defendant who has or claims an interest in the controversy adverse to the plaintiff:, or who is a necessary party defendant for the complete determination or settlement' of a question involved therein.

There is no controversy involved in this action in which a person who claims adversely to the title of the plaintiff: and his co-tenants in common has an interest. The action is not to determine the title to real property, or to ascertain who holds the legal title.

It is well-settled that an action for partition cannot be made a substitute for an action of ejectment or other action to establish the legal title of adverse claimants to real property (Van Schuyver v. Mulford, 59 N. Y. 430 ; Esterbrook v. Savage, 21 Hun, 151), and as no such issue can be tried in such an action there is no controversy therein in which a person who has a claim to the property adverse to the plaintiff’s title has an iiiterest.

The allegations of the complaint are not sufficient to maintain an action to declare the interest claimed by this defendant a cloud upon the title, or an action to compel the determination of a claim to real property, but if the allegation were sufficient it is clear that neither of these causes of action could be joined with a cause of action for a partition. I think, therefore, that the order and judgment appealed from should be reversed and the demurrer sustained.

Sedgwick, Ch. J., concurred.  