
    Catharine Zapp, Resp’t, v. Charles J. Miller, App’lt.
    
    
      (Court of Appeals,
    
    
      Filed March 20, 1888.)
    
    1. Reference—Jurisdiction of judge to name referee after rendering decision.
    Where there was an interlocutory judgment to be entered by virtue of the decision of the judge trying the cause, such decision contemplating an accounting and a referee to take and state the accounts and report to the court. Reid, that the trial judge did not lose his power to order the reference and to name the referee by omitting to do it in the decision.
    2. Real estate—Ejectment—Ouster — How proved—What constitutes.
    In order to prove an ouster it is not necessary to prove a violent ejectment; it maybe inferred from circumstances. Obtaining title to the whole property in common by virtue of fraud and undue influence practiced on the co-tenant, who thereupon leaves, is an ouster of such co-tenant, and would enable him to bring ejectment.
    3. Same—Remaindermen not liable for money advanced to life-tenant TO PAY TAXES.
    The defendant paid taxes on the property in question as an accommodation and loan to the life tenant, who was liable to pay and keep down the ordinary taxes levied upon the property. Failing, to recover from said life tenant the amount he advanced on her account: Reid, that he could not charge any portion of that amount to the remaindermen.
    4. Practice—Court of appeals—When matter before it for review.
    The court of appeals cannot review” an order which does not appear in the record, and in regard to which no papers are found therein, although the notice of appeal to said court assumes their existence.
    Appeal from a judgment of the supreme court, general term, first department, modifying a judgment entered on the report of a referee-.
    By the will of Adam Miller, the plaintiff and defendant were entitled to one undivided half interest in the property; it was, under the will, subject to a fife estate in the widow of Adam Miller, the devise of the fife estate being in the following terms:
    “ I hereby give, devise and bequeath to my wife, Eva Miller, the interest and income of all my estate, real and personal, after deducting taxes, assessments, interest on mortgages, if any, and other charges and expenses, for and during her natural life.”
    Miller died in July, 1879. His wife received all the income of the property until her death. Plaintiff came of age in February, 1883, and within a day or two afterwards defendant persuaded plaintiff to execute the release and the conveyances sought to be set aside in this action. On February 12, 1883, this action was brought.
    Defendant claimed before the referee in his accounting to be credited with certain sums alleged to have been paid by him for taxes and assessments upon the real estate, which became due and payable during the term of the life-tenant.
    
      A. R. Dyett, for app’lt; George Bliss, for resp’t.
    
      
       Affirming 39 Hun, 657, mem.
      
    
   Peckham, J.

This action was brought to set aside four several deeds executed by the plaintiff to defendant, conveying lands in New York, on the alleged ground of fraud and undue influence on the part of the defendant. The trial resulted in a finding by the court before whom it was tried without a jury, in favor of the plaintiff, and in the written decision of the court, after a statement of the facts found, there is contained a statement of the conclusions of law, the second conclusion being in the following language:

“Second. That plaintiff is entitled to judgment; that the defendant account' for all his dealings with and transactions in regard to the property of this plaintiff, and that he be adjudged to pay to this plaintiff, what, if anything, shall upon the taking of said accounts, appear to be due her, said plaintiff. Let judgment be entered accordingly, with costs to the plaintiff.”

This decision was signed by the justice trying the case. Judgment was entered upon it which contained a provision referring it to a referee, therein-named, to take the account and report to the court thereon. This judgment was also signed by the trial judge.

Pursuant to its provisions the reference was had, and upon appearing before the referee the counsel for defendant objected to the proceeding, as the case states, because all that part of the interlocutory judgment not specified in or going beyond the judgment directed to be entered by the' decision of the judge who tried the cause was unauthorized and void. The objection was overruled and defendant excepted. The reference proceeded and upon the report of the referee a final judgment was entered which was modified in one particular by the general term and as modified affirmed. The defendant then appealed from the judgment of the general term to this court, and in the notice of appeal his attorney stated that he also appealed from the intermediate order of the general term affirming an order of the special term denying defendant’s motion to set aside and vacate the interlocutory judgment above mentioned.

This is the only evidence before this court that any motion was ever made to set aside the interlocutory judgment, as there is not contained in the record before us any order of the special term denying the motion or any order ‘of the general term affirming such denial, nor are there' ¡any papers upon which such motion was made. We could. .not review an order which does not appear in the record and in regard to which no papers are found therein, although the notice of appeal to this court assumes their existence.

But we think that the interlocutory judgment was a mere amplification or carrying put of the decision of the trial judge who held therein that the defendant must account for his dealings and pay the sum that should appear upon the taking of the accounts to be due the plaintiff; and the appointment of a referee by the court who tried the cause was a natural consequence of his decision, -and being contained, as it was, in the interlocutory judgment, also signed by him, was a perfect authority to the referee and was authorized by the decision of the judge. The case cited by the learned counsel for defendant' of Clapp v. Hawley (97 N. Y., 610), is scarcely so broad as claimed by him. In that case the defendants made a motion at special term to compel plaintiffs to accept a notice of appeal from a judgment.

It was denied by the special term, and upon appeal that order was reversed by the general term and the plaintiff appealed here. The judgment was a final one, and as entered had been signed by the judge who rendered the decision. A copy of the judgment, but without the signature of the judge, was served on the defendants and the question arose whether there had been a regular service of a copy of the judgment, for if there had the appeal was too late. This court held that the signature of the judge to the final judgment was no part thereof and that it needed no signature, and that the decision was the only authority for the judgment, which must conform to the decision.

But here there was an interlocutory judgment to be entered by virtue of the decision of the judge trying the cause, for the decision contemplated an accounting, and the referee to take and state the accounts and report to the court could have been named in the decision, or, as we think, by the court in the interlocutory judgment to be entered upon it. The trial judge did not lose his jjower to order the reference and to name the referee by omitting to do it in the decision, so long at least as the decision clearly and evidently contemplated the stating of an account between the parties, which is almost universally taken by a referee, and the judgment appointing him was strictly carrying out the decision which was made.

We have no doubt of the regularity of the proceedings so far as this point is concerned.

The next point made by the defendant’s counsel is that the courts below erred in charging the defendant with the rent of the rooms occupied by him after the execution and delivery of the deeds to defendant by the plaintiff, because, as he says, assuming the deeds were void the parties were then tenants in common of the real estate, and there being no agreement to pay the rent he was not liable to his co-tenant for his mere use of the common property. The counsel cites a number of cases holding that the mere occupation by one of several tenants in common of an estate does not make the occupant hable to his co-tenants for the rent of the premises. Such are the cases of Woolever v. Knapp (18 Barb., 265); Dresser v. Dresser (40 Barb., 300); Roseboom v. Roseboom (15 Hun, 309). These cases refer to the leading one of Henderson v. Eason (9 Eng. Law and Eq., 337), where such a proposition was decided, and there is no doubt of its correctness.

But that case, and all the others resting upon it, contains the qualification that the other tenants shall not be excluded or ousted from the possession of the premises or their title denied, in which event the other tenants may maintain ejectment to recover possession and then an action to recover the mesne profits. 1 Coke on Lit., 784; 4 Bacon’s Abrd’gt Title Joint Tenant’s L., 518. And in order to prove an ouster it is not necessary to prove a violent ejectment, or, as one of the cases has it, it is not necessary to prove that the party was set out by the shoulders. It may be inferred from circumstances. Doe & Fishar v. Prosser, 1 Cowp., 217; Hornblower v. Read, 1 East, 568; Ooodtitte v„ Tombs, 3 Wils., 118, cited in 1 Coke, 785; 4 Kent, m. p. 370, note a.

Obtaining title to the whole property held in common, by virtue of fraud and undue influence practiced on the co-tenant, who thereupon leaves the premises, is, as we think, an ouster of such co-tenant and would enable him to bring ejectment. There is no question raised here as to the form of the action, and under our liberal system of pleadings and the abolition of forms of actions, there was enough shown to render it proper and right in this action to charge the defendant with the rent under the modified judgment of the general term.

The remaining question, as to the taxes paid by the defendant during the lifetime of the tenant for life, was properly decided. The proof is undisputed, and it is sufficient to show that he paid such taxes as an accommodation and loan to the life tenant, who was the defendant’s mother, and who, of course, was liable to pay and keep down the ordinary taxes levied upon the property. Failing to recover from her the amount he advanced to her, or 'on her account, he cannot charge any portion of that amount so-paid by him to the plaintiff herein.

The judgment must, therefore, be affirmed, with costs.

All concur.  