
    Benjamine Hulse et al., Pl’ffs, v. Samuel Hulse and another, Def’ts.
    
      (Supreme Court, Steuben Special Term,
    
    
      Filed January 12, 1889.)
    
    1. Partition—Question of title—Code Crv. Pro., § 1543.
    The question of title is properly the subject of trial in an action for partition between tenants in common.
    2. Same—When premises held adversely—Code Crv. Pro., § 1532.
    Where the possession of the premises sought to be partitioned is, at the commencement of the action, held adversely, a tenant in common is in no position to bring or maintain an action.
    3. Same—Title—Presumption of, in favor of heirs—Possession when NOT HOSTILE.
    The title in the common ancestor, presumptively, on his death vests in his heirs as tenants in common, and the possession following of one of the heirs will not be deemed hostile to that of the others, until established by evidence.
    4. Same—Adverse possession—What constitutes.
    Adverse possession, to be effectual as such, must be open and unequivocal, and so notoriously hostile as to be productive of ouster of the co-tenants, before they are denied the right of action for partition, and put to that of ejectment.
    5. Same—Decedent—Estate of—Debts—Presumption of.
    There is no presumption that a decedent left any debts, or that his personal estate is insufficient to pay them, if he did, where the question is not raised by the answer or presented upon the trial before the referee.
    8. Same—How long decedent’s estate chargeable with debts—Code Civ. Pro., § 2750.
    In the event of a sale, pursuant to a judgment in partition, it may concern a purchaser to inquire whether there are unpaid debts, and a deficiency of personal property to pay them, as the right is given for the period of three years from the time letters are issued, to charge real property left by the decedent, which the personal estate is insufficient to pay.
    7. Same—Creditors not affected when.
    Nor would creditors not parties to the action be affected by the judgment and sale pursuant to it.
    8. Same—Improvements.
    Improvements made by a tenant in common may, under some circumstances, present equities in his .behalf, to be observed in an action for partition.
    Motion by the plaintiff for the confirmation of the report of the referee and for interlocutory judgment in partition.
    
      F. H. Robinson, for pl’ffs; A. M. Burrell, for def’ts.
   Bradley, J.

The complaint alleged title to the premises in question in the ancestor of the parties at the time of his death, and that the plaintiffs and defendants (other than those having an alleged estate in dower present and inchoate), were his heirs, and, as such, tenants in common.

The answer of the defendant, Samuel Hulse, puts, in issue the allegation of such tenancy in common, and alleged title in himself by virtue of a contract of sale to him by such ancestor. The referee has found against the defendant on those issues, and because a partition of the premises cannot be had without great prejudice to interest of the parties, he has directed a sale and the distribution between the parties of the proceeds, etc.

For the purpose's of this motion it is assumed that the conclusions of the referee upon the issues of fact were supported by the evidence.

The question of title was properly the subject of trial in the action. Code Civ. Pro., § 1543. It is, however contended on the part of the defense, that the possession of the premises was at the time of the commencement of this action held by the defendant, Samuel Hulse, adversely to the plaintiffs, and that they were, therefore, not in possession as tenants in common. If this proposition is supported, the plaintiffs were in no situation to bring or maintain the action. Id., § 1532: Sullivan v. Sullivan, 66 N. Y., 37.

This contention of the defendant is based upon the alleged fact that he has the title derived from such contract of sale. The mere allegation of such fact m the answer is not sufficient to establish adverse possession, and to deny to the plaintiffs the relation of tenancy in common. The title in the common ancestor of whom the parties were heirs was presumptively, on his death vested in them as tenants in common, and the possession following of one of the heirs would not be deemed hostile to that of the others, but the contrary until established by evidence. 4th Kent’s Com., 370. Adverse possession to be effectual as such must be open and unequivocal and so notoriously hostile as to be productive of ouster of the,co-tenants before they are-denied the right of action for partition and put to that of ejectment. Culver v. Rhodes, 87 N. Y., 348; Wainman v. Hampton, 110 N. Y., 429; 18 N. Y. State Rep., 320.

The claim that the plaintiffs’ heirs were excluded from-the possession by the hostility of that of the defendant, is-not sustained so far as appears by the facts represented here, and for the purposes of the question of the right of the plaintiffs to maintain the action, the possession of the defendant must, in accordance with the presumption in such cases, be deemed in harmony with rights of the plaintiffs in that respect, and, therefore, possession of the defendant may be deemed as of all the tenants in common. German v. Machin, 6 Paige, 289.

It is also urged that the partition or sale of the premises cannot properly be directed until the matters of the estate of the decedent are finally settled, as there may be outstanding debts chargeable upon the land. There might be a question requiring some consideration if it appeared that the ancestor left debts unpaid, and that they exceeded the amount of his personal estate.

But no such question was raised by allegation in the defendant’s answer, nor does it here appear to have been presented upon the trial before the referee. There is, therefore, nothing here in support of that contention. There is no presumption that the defendant left any debts unpaid, or that his personal estate was insufficient to pay them if he did. Matthews v. Matthews, 1 Edw., 565 ; Prentice v. Janssen, 79 N. Y., 478.

In event of a sale pursuant to judgment, it may concern the purchaser to inquire whether there are unpaid debts- and a deficiency of personal property to pay them, because-for the period of three years from the time letters are issued to the personal representative of the decedent, the-right to take proceedings to charge the real property left by him with the payment of debts, if any there be, which, the personal estate is insufficient to pay. Code Civ. Pro., § 2750; Slocum v. English, 2 Hun, 78; 62 N. Y., 494. And. the right of creditors not parties to this action would not be affected by the judgment and sale pursuant to it. Hall v. Partridge, 10 How., 188. The purchaser may, therefore, before completing his purchase, deem it advisable to-have removed any doubt in that respect which may exist; and while the fact that such three years have not expired may be prejudicial to the sale, there appears in it no recognized reason to justify the denial of the application for confirmation of the report and direction of the interlocutory judgment. The referee was not necessarily required to ascertain the situation of the personal estate, or whether any. or what sums, if any, were due from the estate to creditors at large. If there is any occasion for delay in the sale on that account, it is a matter for subsequent consideration upon such facts as may be presented in its support.

It is further contended that the defendant Samuel Hulse made permanent improvements, for which he should have been, and was not, allowed by the referee, it is true that improvements made by a tenant in common upon premises, may, under some circumstances, present equities in his. behalf to be observed in an action for partition. Ford v. Knapp, 102 N Y., 135. But no such claim is alleged jn the answer, and nothing appears in the evidence or facts presented upon this application to justify any allowance to him on that behalf. While there is evidence that he made some substantial repairs and improvements on the land, it does not appear to have been done after he became tenant in common with the plaintiffs, but the evidence tends to prove that they, or the most of them, may have been done while the ancestor was living, and resided upon the premises, where the defendant then also resided, and so far as related to such improvements then made, it was a matter between him and his father ; and whether or not a claim in his favor was on that account created in the defendant’s behalf against his father, was dependent upon circumstances which do not appear upon this motion.

The motion, confirmation and interlocutory judgment granted. _  