
    Ella D. Sands, App’lt, v. Henrietta Church et al., Resp’ts. Charles Shafer, App’lt, v. Henrietta Church et al., Resp’ts. Edward Shafer, App’lt, v. Henrietta Church et al., Resp’ts.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed July 8, 1893.)
    
    1. Deed—Champerty.
    Where the complaint in an action of ejectment does not aver what title, if any, the defendant claimed, and the evidence does not show any claim of specific title adverse to that of plaintiffs’ grantors, the deed to plaintiffs cannot be held void under the statute of champerty.
    3. Ejectment —Pleading—Variance.
    The complaints in these actions were indefinite and obscure as to the nature of the title claimed by the plaintiffs, but contained statements that all rent had been fully paid; that should rent be found due and in arrear plaintiffs were ready to pay the same and perform all agreements which ought to be performed by the first lessee, and asked for an accounting of the use and occupation and that the same be set off against any rent that had accrued. No motion to make the complaint more definite and certain was made. Reid, that the pleader’s intent was to allege a leasehold title.
    3. Same.
    ■ Where the complaint contains all the allegations necessary to be stated in an action of ejectment, additional allegations, in anticipation of a defense, that defendant procured a fraudulent judgment and that such judgment did not affect plaintiffs’ rights, form no part of the cause of action and might be stricken out as irrelevant; even if the complaint could be deemed to assert two causes of action, one in ejectment and one to set aside the fraudulent judgment, a recovery could be properly had in the former although the latter remained unproved.
    Appeals in each case from judgment dismissing the complaint, with costs.
    
      W. & G. W. Youmans (W. Youmans, of counsel), for app’lts; Marcus T. Hun, for resp’t, Henrietta Church; William S. Dyer, for resp’t, Joseph Drum.
   Putnam, J.

These are actions in ejectment, each brought to recover an undivided one-third part of the premises described in the complaint.

On the trial plaintiffs established a leasehold title to said lands, and it being admitted that defendants were in possession thereof, rested. A motion was then made by defendants for a nonsuit, which motion the court granted, plaintiffs duly excepting. Plaintiffs also asked to go to the jury on the questions of fact involved in the case. This motion was denied and plaintiffs excepted.

One of the grounds urged by the defendants on the motion for a nonsuit, and upon this appeal to sustain the judgment, is that the conveyance from Arthur W. Shultes and others to plaintiffs on March 9, 1890, was void for champerty, as the property was then in possession of defendants, who claimed to hold it under a title adverse to that of said grantors.

After a careful examination of the evidence I am unable to believe that this position is well taken. The evidence does not show that Church claimed possession under any specific title. The complaint alleges that when the action against Quackenbush was commenced the latter had no title or interest in the demised premises and was not in possession thereof. And that the writ of possession issued under the judgment in said action was never executed according to law, nor in fact, and the possession of said premises was never delivered to said Church under said writ. The complaint also alleges that Church entered into possession of said premises by-virtue of an agreement with Ann E. Shafer set out in the complaint. There is no allegation that Church was in possession of said premises under the judgment against Quackenbush when the premises were conveyed to plaintiffs. Nor does the evidence show any claim of a specific title adverse to that of plaintiffs’ grantors by Church. The complaint does not aver nor does it appear what title, if any, Church claimed. Hence the deed to plaintiffs was -not void under the statute of champerty. ,See Crary v. Goodman, 22 N. Y., 170; Dawley v. Brown, 79 id., 396.

The defendants also urge that the plaintiffs in their complaints allege a title to the premises in controversy in fee simple, and the proof shows their interest, if any, is a leasehold title. The complaints are somewhat indefinite and obscure, and had a motion been made by defendants for an order requiring them to be made more certain and definite I have no doubt such a motion would have prevailed. But no such motion was made, and defendants entered upon the trial of the cases with the complaints as they are. I think it appears from the whole pleadings that the plaintiffs intended to allege a leasehold title. For instance, in stating the agreement between Church and Quackenbush, they alleged that it was agreed that an action should be commenced on a claim" that there was a large amount of rent in arrear; again, they state in the complaints that all the rent which has accrued upon said premises has been fully paid and satisfied; that should rent be found due and in arrear, plaintiffs are ready to pay the same, and to perform all the agreements which ought to be performed by the first lessee in said lease, and plaintiffs are ready and willing to pay said rent and charges. Plaintiffs in their complaints also ask that an accounting be had of the use and occupation of said premises, and that the same be set off against any rent and charges which may have accrued. I think, although defectively stated, the intent of the pleader in the complaints to allege a leasehold title in plaintiffs is apparent.

The defendants having entered upon the trial of the cases with the complaints as they are, with an indefinite, contradictory and obscure statement of title, I do not think that a nonsuit should have been granted because it appeared upon the trial that plaintiffs’ title was leasehold.

Had it alleged, however, an absolute fee in the plaintiffs, and the proof had shown merely a leasehold title, I doubt whether the variance could be deemed material. In either case the plaintiffs were entitled to a judgment for the possession of the premises; whether owners in fee or lessees, plaintiffs could recover the premises in suit. Such a variance should not be deemed material. Code, §§ 539, 540. The complaint, if necessary, could be amended on appeal. Smith v. Long, 12 Abb. N. C., 120.

Defendants also claim that the judgment of non-suit was-properly rendered because the complaint sounded in tort and a recovery could not be had thereunder in ejectment.

The complaint, however, alleges all the facts necessary to be stated in an action of ejectment. That the plaintiffs arc the owners of the premises in question and entitled to the immediate possession thereof and the defendants are in occupation.

I incline to regard these cases more like those considered in Graves v. Waite, 59 N. Y., 156 ; Bell v. Merrifield, 109 id., 206; 14 St. Rep., 796 ; Ross v. Terry, 63 N. Y, 614, and kindred cases, than like Barnes v. Quigley, 59 N. Y., 265; Degraw v. Elmore, 50 id., 1; Place v. Minster, 65 id., 101.

In the latter case the complaint alleged fraud and the following language is used in the opinion : “ It is, of course, necessary to prove fraud, and the plaintiff could not recover on entirely different grounds unless there were additional averments in the bill or complaint upon which such recovery can be had.” In these cases there were allegations of fraud, but outside of those were all the allegations necessary to be contained in an action of ejectment. In Ross v. Terry, supra, it was held : “ That the cause of action was not necessarily ex delicto because of the averments of false representations ; that they were not the controlling facts, but the gravamen of the action was ex contractu.” Conaughty v. Nichols,, 42 N. Y., 83 ; Ledwich v. McKim, 53 id., 308 ; Graves v. Waite 59 id., 156.

In the cases under consideration the actions were brought to recover the possession of one-third of the premises described in the-complaint. That the plaintiffs are the owners of the premises and entitled to the immediate possession thereof and that the defendants are in occupation thereof is stated in the complaints. In addition to the allegations stating the cause of action, plaintiffs, in anticipation of defendants’ defense, have inserted an averment as to an alleged fraudulent judgment obtained by Church against Quackenbush. The complaints allege, however, that when the action against Quackenbush was commenced the latter was not in possession of the demised premises and had conveyed his interest, therein to Joseph 1. Shultes, and had no interest whatever in said lot, and also possession of the premises in question was never-delivered to said Church under said judgment. Of course the said allegations in the complaints show that the plaintiffs’ rights-are not at all affected by the judgment or proceedings in the action of Church against Quackenbush. The object of the pleader seems to be to set out in the complaint a cause of action in ejectment, and anticipating that defendants would interpose as a defense the above mentioned judgment and proceedings thereunder, to assert the facts showing that said judgment and the proceedings’ thereunder, as to plaintiffs, was of no effect.

I do not think that the allegations contained in the complaint-in regard to the said Quackenbush judgment can properly be-deemed a part of the cause of action. They are in fact irrelevant,, and might have been stricken out on motion. The object of the-action is to recover the possession of the premises described in the complaint. If the complaint could be deemed to assert two causes of action, one in ejectment and one to set aside the fraudulent judgment, a recovery could be properly had in the former, although the latter cause of action remained unproved.

The plaintiffs, as above stated, when they rested, had shown title to the premises in suit, and that defendants were in occupation thereof. If in fact Glmrch, as owner of the landlord’s interest in the lease, re-entered for the non-payment of rent, and Quackenbush was in possession when the action was commenced and when the writ of possession was issued, and Church was put in possession under the judgment, such a state of facts would constitute a defense. But those facts did not appear upon the trial. I think, on the facts appearing, plaintiffs were entitled toa judgment, and hence that the judgment should be reversed, a new trial granted, costs to abide the event.

Mayham, P. J., concurs; Herrick, J., not acting.  