
    David M. H. Place, Respondent, v. Georgiana Estelle Kennedy, Appellant, Impleaded with Eva Rogers and Others, Defendants.
    
      Partition suit— it may he retained hy a court of equity notwithstanding the fact that the plaintiff’s title and, right of possession are disputed.
    
    The complaint in an action of partition alleged that David Hains, Sr., died in. 1831 leaving a will, by which he devised the premises in question to his son David Hains, Jr., for life, and upon his death to his lawful issue whether children or grandchildren; that David Hains, Jr., died in 1891 leaving as his sole lawful issue his grandchildren, the plaintiff and the defendant Eva Rogers. Georgiana E. Kennedy and others were made parties defendant under an allegation that they asserted some claim or interest in the property which constituted a cloud upon the title. Georgiana E. Kennedy served an answer in which she alleged that the Will provided that if David Hains, Jr., should die without lawful issue the premises in question should pass to the'lawful issue of the testator’s daughter, Margaret A. Hains; that David Hains, Jr., left no lawful issue; that the defendant Kennedy was a granddaughter of Margaret Hains and that she and Catharine E. Downing, who was not a party to the action, became the owners of the premises upon the death'of David Hains, Jr. She demanded an affirmative judgment that the plaintiff and the defendants, other than herself, surrender to her the possession of the premises and account-to her for the rents and profits. The issues relative to the question of title were tried before a jury and were found in favor of the plaintiff. After the verdict had been entered the defendant Kennedy moved to dismiss the complaint.
    
      Held, that the motion was properly denied;
    That notwithstanding the fact that the plaintiff’s title and right of possession was disputed, a court of equity having acquired jurisdiction of the action was not obliged to dismiss the complaint and remit the plaintiff to his remedy at law. ■-»
    Appeal by the defendant, Georgiana Estelle Kennedy, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 24th day of January, 1903, upon the decision of the court rendered after a trial at the Kings County Special Term, the court having, at the Westchester trial term, directed a verdict upon certain issues of fact tried before a jury; also from an order of the Supreme Court, made at the Kings.County Special Term and entered in said clerk’s office on the 3d day of February, 1903, denying the. said defendant’s motion to vacate such judgment.
    
      Alfred B. Cruikshank, for the appellant.
    
      Burton C. Meighan, for the respondent.
   Goodrich, P. J.:

This is air'appeal from a judgment for partition of property in Westchester county. The plaintiff alleged that David Hains, Sr., died in 1831, leaving a will by which he devised the property in question to his son, David Hains, Jr., for his life, and upon his death to his lawful issue, whether children or grandchildren'; that David Hains, Jr., died in 1891, leaving as his only lawful issue his grandchildren, the plaintiff and the defendant Eva Rogers. The plaintiff made parties defendant Georgiana E. Kennedy and others, alleging that they asserted some claim or interest in the property, which constituted a cloud upon the title. He demanded judgment for a partition of the premises according to the rights of the respective parties, that the premises might be sold and the proceeds divided among the owners according to their several rights and interests therein, and to that end that the rights and interests of the parties interested in said premises or the proceeds might be determined.

Several of the defendants answered and among them Mrs. Kennedy, but as none except herself appeals from the judgment, it becomes necessary to examine only her contention. Her answer sets out portions of the will under which she claimed title, upon the allegation that David Hains, Jr., died without leaving any lawful issue. The pertinent clause of the will devised a life estate in the premises to David Hains, Jr., and at his decease to his son, David M. Hains, and if the latter should die leaving no lawful issue, then to the lawful issue of his daughter, Margaret A. Hains. Mrs. Kennedy alleges that she is the granddaughter of Margaret and that she and Catharine E. Downing, who is not a party, on the death of David M. Haines became the owner of the premises. She demanded affirmative judgment that the plaintiff and the defendants other than herself surrender to her the possession of the premises and account to her for the rents and profits.

Section 1543 of the Code of Civil Procedure provides that in an action for partition the title or interest of the plaintiff or any defendant in the property as stated in the complaint may be controverted by the answer of any defendant, and that the issues thus joined must be tried and determined in the action. This course was pursued at the trial, where the questions were submitted to and answered by the jury under direction of the court, as follows: “ Second. — Is (sic) the plaintiff, David M. H. Place, and the defendant, Eva Rogers, the lawful issue of Annie E. Hains, later Annie E. Place? Answer. Yes. Third.—Was Annie E. Hains, later Annie E. Place, the lawful issue of David M.. Hains ? Answer. Yes.’’

After the verdict had been entered Mrs. Kennedy moved to dismiss the complaint, and the motion was denied and an interlocutory judgment-entered, from which Mrs. Kennedy alone appeals.

The memorandum, tiled by Mr. Justice Gaynor, the learned trial justice, is as follows: “ The defendant Kennedy by her answer has chosen to make an issue, and to pray therein for affirmative relief accordingly. She has thereby submitted her claims to adjudication in this action. Judgment for the plaintiff.”

The learned counsel for the appellant states in his brief that “the claim to affirmative relief was abandoned on the' trial.” I find nothing in the' record to corroborate the statement. He also cites numerous authorities to the effect that where in partition actions the plaintiff’s title or right of possession are disputed, the plaintiff should be remitted to his action at law. This point is ' set at rest by the' case of Satterlee v. Kobbe (173 N. Y. 91)j where the court said (pp. 95, 96): “ It is doubtless true that during a long - period in the history of our jurisprudence, while partition actions were regarded as peculiarly within the domain of equity jurisdiction, whenever it appeared that the title or right of possession of the plaintiff was disputed or that he- had been actually ousted by his cotenants, courts of equity would withhold relief and remit the parties to their action at law. The¡ principal reason for this was that there was no adequate provision for a jury trial .of issues involving questions of title, but this reason has been removed by legislation embraced within the provisions of the present Code. Considering these enactments in their fair scope and meaning, they seem-to permit the retention within the jurisdiction of equity of partition actions even where the question of adverse possession is involved. The statute prescribes in great detail the persons who must be made defendants (Code, § 1538), and further on the persons who ma/y be made defendants at the election of the plaintiff. Among the latter class is mentioned a ‘ creditor or other person Laving a lien or interest which attaches to the entire property.’ (§ 1540.) If the share, right or interest of a party is Unknown to the plaintiff that fact must be stated in the complaint. (§ 1542.) This last provision seems to contain the clear implication that the, plaintiff may join as defendants in the action persons in possession or who claim some interest the nature and character of which is unknown. It is broad enough to include intruders, trespassers or persons claiming title or some right adverse and hostile to the plain:: tiff. It-would seem to be plain that it was intended to permit the plaintiff to join as defendants parties claiming some interest in the property although these persons might not in any legal sense be cotenants, but claiming adversely. The title or interest of any party may be put in issue by pleading and the issue tried by a jury (§§ 1543, 1544.) Thus we see that all the obstacles to the full and complete jurisdiction of equity in actions for partition have been swept away.”

The judgment is correct and should be affirmed, with costs.

Bartlett, Woodward, Hirsohberg and Jenks, JJ., concurred.

Judgment and order affirmed, with costs. 
      
      This provision appears in Code Civ. Proc. § 1539.— [Rep.
     