
    Mary Maloney, App’lt, v. Nancy Cronin, etc., Resp’t.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed April, 1887.)
    
    1. Partition of real estate—One action only—Code Civ. Pro., § 1537.
    Whether the devisee of land is in or out of possession of the land devised, section 1537, Code Civil Procedure, authorizes in a single action the determination of the validity of the devise, and if that be found void, a partition of the premises among those entitled to share therein. The party named as devisee, and his grantee, if there be any, are necessary parties as to the validity of the devise, and the grantee as to the partition.
    3, Same—Old rule changed.
    The old rule denying to a party partition of lands held adversely, was intentionally changed by the Code of Civil Procedure, § 1537, where such adverse holding and possession was under a devise valid on its face, but in fact void.
    3 Grantee of devisee—How title to land sustained.
    The grantees of a devisee must, to sustain their title to land devised against the attack of the heirs at law, sustain the validity of the devise. The probate of the will is not conclusive. When the will or devise fails, their title under it fails, notwithstanding their good faith.
    Appeal from a judgment of the special term dismissing the complaint in an action brought to partition certain land.
    
      Edward Lewis, for app’lt; Williams & McCabe, for resp’t.
   Boardman, J.

Two issues only were presented by the pleadings:

First. Whether the devise of the lands, which are the subject of the action, 'to Nancy Cronin, defendant, was valid.

Second. Whether the defendants Prior were purchasers from Nancy Cronin, the devisee of such lands in good faith for value and without notice of the invalidity of the devise. The jury found the devise to be void and that Prior was a bona fide purchaser and in the possession of the lands under a deed good in form given by Nancy Cronin.

On these facts, conceded to be true for the purposes of the present appeal, the plaintiff claimed a judgment for partition of the lands between herself as one of the heirs-at-law of Mary Maloney, deceased, and the other heirs-at-law. This claim was resisted by the defendants upon the. sole ground that partition cannot be had under section 1537 of the Code, where the apparent devisee, Nancy Cronin, is not in possession, but the Priors are in possession holding adversely as bona fide purchasers from said Nancy. The learned judge with some hesitation sustained the defendant’s claim, and dismissed the complaint. The statute under which this action was brought is comparatively new and no authority is cited covering the precise point in controversy. Chapter 238 of the Laws of 1853 first gave such a right of action and that was repealed in 1880, when section 1537 was incorporated in the Code in its stead. Under the act of 1853 it was held by the court of appeals, Judge Miller speaking for the court, that “An action of partition can be maintained to determine the' validity of any devise or will of real estate notwithstanding an adverse possession. The action is somewhat in the nature of an ejectment; but issues of fact are to be made up and tried by a jury, and when the legal title is established a partition or a sale may be granted upon application to the court, as the relief demanded after the main subject of the controversy has been determined by a jury. It does not appear whether that action was brought against the apparent devisee or his grantee. In the present case the Priors took the title of Nancy Cronin as heir-at-law although her title as devisee was worthless. The Priors were therefore tenants in common with the plaintiff the moment the devise was declared void. If the devise was void they could acquire no title under it. To sustain their entire title to the lands under Nancy Cronin’s deed, they must sustain the validity of the devise against the attack of the heir-at-law. The probate of the will is not conclusive. Matter of Gourand, 95 N. Y., 256. When the will or devise fails their title under it fails notwithstanding their good faith. So when the devise is overthrown the Priors’ title under it is gone and they remain grantees of the share of Nancy Cronin as one of the heirs-at-law. Such possession of course is not adverse lo. the plaintiff. The grantee stands in the place of the devisee and can have no greater rights. There can be no good reason why the heir may not have the same relief against the grantee as against the devisee. The intent of the law was to give a direct and prompt mode of determining the rights of the parties. -. Of what use then to require an action of ejectment to establish title, and afterwards an action of partition to ascertain the rights of the parties and make division ? That seems to us precisely what the legislature intended to obviate by this new form of action. If Nancy Cronin had not been one of the heirs, the position and claim of Prior might possibly have had more force. By the section 1537, whether in or out of possession, the action lies, “notwithstanding an apparent devise thereof to another by the decedent and possession under such devise.” That seems to authorize in a single action the determination of the validity of the devise, and if that be found void, a partition of the premises among those entitled to share therein. Nancy Cronin was a necessary party to test the devise. Prior was a necessary party both as to the devise and partition.

We conclude that the old rule denying to a party partition of lands held adversely was intentionally changed where such adverse holding and possession was under a devise valid on its face, but in fact void. The purpose of the law, if as stated, cannot and ought not to be thwarted by a transfer of the devisee’s apparent title to a party whose title and possession is no other or better than the devisee’s.

For these reasons, we think the judgment should be reversed. No appeal has been taken from the order denying a new trial upon the issues settled and passed upon by the jury, and hence the verdict upon those issues must stand. The case must then go back to the special term, with directions to take such further action as is required by law and the practice of the court preliminary to a final judgment of partition among the owners of the premises in controversy. If, in the setting aside the deed from Nancy Maloney (now Cronin) to Prior and the mortgage from the Priors to the executor any equities are involved requiring protection, the court at special term will provide for the same.

The judgment is reversed and the proceedings are sent back to the special term for such further action as may be necessary in order to effect partition or sale of the premises. The appellant shall have costs of this appeal against the respondents.

Hardest, P. J., and Follett, J., concur.  