
    Fourth Department,
    November, 1905.
    Martha J. Flagler and Others for the Benefit of Washington H. Ransom, Respondents, v. Elizabeth Devlin and Ella M. Devlin, Appellants.
    
      Ejectment under section 1501, Code Civil Procedure — adverse possession — direction of verdict, when erroneous—inadvertent admission by counsel. .
    
    Appeal from a judgment which awarded to the plaintiffs possession of a certain undivided interest in the premises described in the complaint, with costs, entered in the office of the clerk of Niagara county of the 24th day of October, 1904, upon a verdict directed at the close of the evidence at a Trial Term of the Supreme Court held in and for said county, each party having moved that a verdict be directed in its favor, and from an order denying defendants’ motion for a new trial made upon the minutes of the court. The action is ejectment and was commenced on the 6th day of October, 1902, to recover possession of a certain undivided interest in lands situate in the village of Olcott, cotinty of Niagara, consisting of a lot upon which there was a small shanty, alleged to be wrongfully withheld by the defendants.
   McLennan, P. J.:

The action is brought under section 1501 of the Code of Civil Procedure, is purely statutory, and to entitle the plaintiffs to the benefit of its provisions they must establish the existence of the prescribed conditions and a full compliance with its requirements. The section, is as follows: “ Such an action (an action in ejectment) may be maintained .by a grantee, his heir or devisee, in the name of the grantor, or his heir, where the conveyance, under which he claims; is void because the property conveyed was held adversely to the grantor. The plaintiff must be allowed to prove the facts to bring the case within this section. * * * ” The defendants contend that under the circumstances shown to exist in this case the plaintiffs are not entitled to maintain the form of action given by the section, 'and that the proof upon the merits did not entitle them to the judgment awarded. The evidence tends to show that on and prior to June 18, 1845, Oliver Corwin, Eliza, his wife, and Mary E. Taylor, the sole heir at law and devisee under the last will and testament of Edward' Taylor, deceased, were the owners of and were seized in fee simple of an undivided four-ninths parts of the premises in question; that on that day by a deed duly executed and delivered by them they conveyed their undivided interest to-one Robert McKnight, and that he thereupon became-seized to such interest. In October, 1847, said Robert McKnight then being seized of said undivided four-ninths parts of said premises, died intestate, leaving him surviving his'widow and children, such children thereupon becoming the owners' of the interest of which he died seized, subject to the widow’s right of dower. Certain of such children, or their heirs who became the owners of'sixty-eight four hundred and fifths parts of the premises in question by the death of the father or ancestor,.Robert McKnight, about the year 1892 conveyed their respective interests in said premises to Washington H. Ransom, mentioned in the complaint as the person in whose interest the action is brought, and they, such, heirs, are the plaintiff grantors who bring the action. When said deeds were so executed and delivered by the plaintiffs to Ransom the defendants were in the actual occupation and possession of the premises, claiming under a title adverse to "that of said plaintiffs, and such adverse occupation and possession cmtinued down to the time of the- commencement- of the action and still continues. These facts standing alone would bring the parties Within the provisions of the section of the Code quoted, and the only -issue to be tried would have been as to the title of the defendants. ' It appears, however, that in January, 1893; a partition action was commenced in the Supreme Court by Ransom in which two at least of the plaintiffs in this action, Ransom’s grantors, were made defendants, to wit, Robert J. and George. M. McKnight. The defendant in this action, Elizabeth Devlin, was also made a defendant in that action, it being alleged that such defendants and twelve others who were named “ are tenants occupying severally or otherwise some portion of said premises under and subordinate to the tenants -in common thereof, or claiming some right or interest therein-,' or in specific portions thereof, the .exact nature and extent of which claim, right or interest in each case being unknown to the plaintiff.” Elizabeth Devlin made default in the action. The action of partition proceeded to judgment in the ordinary way, and it was adjudged that the interests of the various parties in the premises were as alleged in the complaint, and that the plaintiff Ransom was seized of two hundred and ninety-three four hundred and fifths parts thereof; that the defendant Elizabeth Devlin and eleven other defendants named were mere squatters upon the premises and were without any title or claim or color of title whatsoever. A sale of the premises was directed, Ransom became the purchaser, and a deed was executed to him in accordance with the provisions of the judgment. It is claimed that as a result of such action of partition Ransom acquired the interests of Robert J. and George M. McKnight in the premises in question, and, therefore, that it is not competent in this action (they being plaintiffs here) for them to assert their respective conveyances to Ransom in his interest or behalf. We think there is much force in the suggestion that Ransom having, by the action in partition in which Robert J. and George M. McKnight were made defendants, obtained whatever interest they had in the premises, and thereby cured any infirmity in the deeds executed by them to him, that they may not assert in this action the infirmity of such deeds in his interest for the purpose of having it again adjudged that he is the owner and entitled to the possession of the interest so attempted to be conveyed by them. This obj ection did not appear upon the face of the complaint, but was raised by defendants’ answer. We think it must be held that the plaintiffs Robert J. and George M. McKnight were not entitled to maintain this action, because Ransom could not claim in law the premises under or by virtue of the conveyances made by_ them, because, as wo have seen, he had acquired title as between them and himself by virtue of the judgment in partition, and, therefore, it was of no consequence whether the deeds executed by them to him and set up in the complaint in this action were valid or otherwise. But this question is of minor importance in the determination of this appeal. It appears that one John Devlin, who died intestate on the 20th of April, 1870, had occupied and lived upon the premises in question with his wife and family continuously for more than thirty years prior to his death; that his children or some of them continued to live there until the time of the commencement of this action, and still continue so to do, and that the mother, the widow of John Devlin, resided with them until her death in 1900. The evidence very conclusively shows that John Devlin and his successors in interest acquired a perfect title to the premises in question by adverse possession prior to the commencement of this action; and it was practically so held by the learned trial judge. At the close of the evidence and when the attorneys for the respective parties moved for the direction of a verdict, the learned trial justice said: “It.appears to me from the evidence in this case that John Devlin and his successors in interest in the premises described in the complaint in this action, acquired a perfect title to these premises by adverse possession prior to the 5th day of January, 1893 ” (the time of the commencement of the partition action). It would seem upon such finding, which is abundantly sustained by the evidence, that a verdict should have been directed in favor of the defendants and the complaint dismissed. It, however, appeared that John Devlin and his wife died intestate and left them surviving five daughters, including Elizabeth and Ella Devlin, these defendants, and one son; and, of course, upon the death of the father each of them became the owner of a one-sixth part of the premises, if owned by him, subject to the dower interest of the mother. On October 9, 1882, the mother executed and delivered to one McCormick a deed of her interest in the premises, and on October 21, 1882, McCormick executed and delivered a deed of the same premises to the defendant Elizabeth Devlin. This, however, conveyed to Elizabeth only the dower right of her mothei;. Afterwards the brother died without issue, and thereupon the remaining children, the daughters of John Devlin, including the two defendants, became each the owner of an undivided one fifth of the premises. Afterwards and on the 15th of August, 1885, the defendant Elizabeth Devlin conveyed to her mother Hannah all her right, title and interest in the premises. The deed was not recorded but was delivered to the mother'and the mother was in possession. So that the widow of John Devlin and his daughters, other than the defendant Elizabeth, at the time of the commencement of the partition action each owned an undivided one-fifth of the premises, assuming, as found by the trial court., that John Devlin owned the same at the time of his death. And at that time (the time of the commencement of the partition action) Elizabeth Devlin had no right; title or interest in or to the premises, she having conveyed the same to her mother in 1885. On February 25, 1896, the several children of Hannah Devlin then living, other than the defendant Elizabeth (she having conveyed her interest previously), conveyed their interest in the premises to the mother. The mother died in October, 1900, and after her death all her heirs, except the defendants Elizabeth and Elia Devlin,tjoined in a conveyance to-said Elizabeth and Ella-Devlin, these defendants. During all the times-referred to the said defendants continued to. reside upon the premises in question. The learned trial court evidently thought the evidence showed that the-defendant Elizabeth Devlin, at the time of the commencement of the partition action, was the owner of an undivided one-fifth of the premises,-as heir of ,her father John Devlin, the brother having died intestate and without issue, and the mother.having conveyed-her dower interest to her, evidently overlooking the fact, as was .conclusively shown by the deed put in- evidence,' that in 1885 Elizabeth had conveyed her entire interest therein to. her mother Hannah, and, therefore, at the time of the " commencement of such action had no possible interest therein. The court evidéntly was led to such mistake or erroneous conclusion by a statement or admis- ■ sion of the defendants’ counsel in that regard. . But, as we have seen,, the fact was conclusively shown to be otherwise, to wit, that when the action in partition was commenced and Elizabeth Devlin'was made a party defendant thereto, she. had conveyed all her interest in the premises to her mother Hannah, and had ni> ' title and did not claim to have any thereto. As the result of the error on the part of the court.as to what was established by the evidence in that regard, it said: “ I am going to hold at this time that the action is in proper form. That being so,, and it being conceded that the defendant, Elizabeth, was the owner of an Undivided one-fifth part of these premises on the 5th day of January, 1893, When the action in partition" was begun, and she being made a party to that action, that the plaintiffs in this -action are entitled to recover the possession of one-fifth part of the premises described in the complaint. That will be the disposition of this case and the jury will find a verdict in accordance with what has been- said.’’' Defendants’ counsel: “Can that be done in this-action?” The court: “lam going todo it in this action.” Defendants’ counsel: “This is an action of eject- . ment.” The court: “ I understand; I think it meets the whole controversy on its merits. That will be the verdict of the jury in this case.” To which decision defendants’ counsel excepted, and the counsel for" the plaintiffs said: “I also-ask an exception as to your giving us but one-fifth.”. Such verdict for one-fifth was directed in favor of the plaintiffs, as we have seen, upon the theory that the defendant Elizabeth Devlin, at the time of the commencement of the partition' action was the owner of an undivided one-fifth interest" in the premises. . That by the judgment in such action, she having, been- made a party and having defaulted, Ransom acquired such interest, and that the interest so acquired by him was available to the plaintiffs in this action. At the time of the commencement of such action and. the rendition of such judgment, Elizabeth Devlin did not own such interest or any interest in the premises, and, therefore, Ransom acquired no interest coming from her. Even if Elizabeth Owned the one-fifth interest as found by the court, and Ransom had acquired it by the judgment in the partition action, it would not be available to the plaintiffs in this action. This action is brought under the section of the Code referred to, solely upon the theory and because of the fact that the plaintiffs- were the owners of the premises; that they had conveyed to the defendant under circumstances such as to render their conveyances void, and for the purpose of removing such infirmities from their deed; and it is of no consequence what title or interest Ransom may have acquired from other sources'. There was, therefore,' no basis for the direction of the verdict that the plaintiffs were the owners of an undivided one-fifth interest in the premises. Such direction was made coneedediy not because of any interest which the plaintiffs had at the time they executed and delivered their respective conveyances to Ran som, but because of an interest which'Ransom was assumed to baveaequired wholly independent of such-conveyances and independent of any acts done by the plain-^ tiffs. In this case it is considered that it is of no importance' whether the defendants’' counsel inadvertently or otherwise assented to the proposition, that Elizabeth Devlin owned at the time of the commencement of the partition action a one-fifth interest in the premises, because even if such, were the fact and Ransom had acquired such interest by the judgment in such action, it would not be available to the plaintiffs or to him in this action. But, as .we have seen, such was not the fact. The only issue tendered by the pleadings, and which was litigated upon the trial, or which could properly have been litigated, was whether or not the' defendants were the owners of the property as against the plaintiffs. The court found in substance that they were such owners, because the father, John Devlin, had become the absolute owner by adverse possession before his death. That being so, it follows that the heirs of John Devlin had a right to deal with the property as they saw fit, and the defendants having become the owners by mesne conveyances from such heirs, they are entitled under such finding of fact to retain the possession of the premises and a verdict in their favor should have been directed and j udgment entered accordingly, with costs. It follows that the j udgment and order appealed from should be reversed and a new trial granted, with costs to the appellants to abide event. All concurred. Judgment and order reversed and new trial ordered, with costs to the appellants to abide event, upon questions of law only, the facts having been examined and no error found therein.  