
    John C. Anderson, Resp’t, v. Laura V. Appleton, Impleaded with others, App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed May 18, 1888.)
    
    Title to real property—Title of devisee how tried—Code Civ. Pro., § 1866.
    A devisee who claims a mere legal estate in real property of the testator where there is no trust must assert his title by ejectment or other legal action, or if in possession must await an attack upon it and set up the devise in answer to the hostile claim.
    Appeal by the defendant from an order of the special term of the second department enjoining her from proceeding in an action for partition subsequently brought pending this action; two of the justices of the second department being disqualified from hearing the appeal, the same was sent to the first department for determination.
    
      E. C. James, for app’lt; Calvin Frost, for resp’t.
   Van Brunt, P. J.

It is manifest from the papers in this case that this action was brought under the provisions of the Laws of 1879, chapter 316. That the act of 1879 no longer affords authority for the commencement of an action of this nature, it is not necessary to discuss, as the court of appeals in the case of Horton v. Cantwell, in January, 1888 (13 N. Y. State Rep., 615), decided that the act of 1879 had been repealed by the passage of sections 1866 and 1867 of the Code of Civil Procedure.

The only question then to be considered is whether this action can be maintained under section 1866 of the Code. It is to be observed that with some change of phraseology that portion of section 1866, which is claimed to be applicable to the case at bar, is substantially the same as the provision contained in section 1 of chapter 238 of the Laws of 1853, and unless an action similar to the one at bar could have been maintained under the act of 1853, there seems to be no basis for its institution under the provisions of the Code, section 1866.

The cases of Chipman v. Montgomery (63 N. Y., 221), Weed v. Weed (94 N. Y., 243), and Wager v. Wager (89 N. Y., 161), lay down distinctly the principle that in the then condition of the law an action similar to the one at bar could not be maintained. The principle enunciated is to the effect that a devisee, who claims a mere legal estate in real property of the testator where there is no trust must assert his title by ejectment or other legal action, or if in possession must await an attack upon it and set up the devise in answer to the hostile claim. That the principles laid down in Chipman v. Montgomery, and the other cases cited, are applicable to the present state of the law, seems, also, to be asserted with great distinctness by the court of last resort in the case of Horton v. Cantwell (supra).

These cases determine, without ambiguity, that the plaintiff occupies no such relation and seeks no such relief as that a court of equity can entertain jurisdiction.

It is true that the learned justice who heard the demurrer in this case has come to a different conclusion; but his opinion seems to have been based upon the view that the amplification of the language of the act of 1853 in section 1866 of the Code had abrogated the principle, which had previously been enunciated in the case of Chipman v. Montgomery.

As has been seen the court of appeals have reiterated the doctrine established in the case last cited. There seems, therefore, to be no necessity for discussion, as the maintenance of the principles established by the adjudica tions above-mentioned, seem to be directly opposed to the conclusion arrived at by the learned justice upon the demurrer.

The order appealed from must, therefore, be reversed, with ten dollars costs and disbursements.

Macomber, J., concurs.

Bartlett, J.

I agree that the respondent should not have an injunction under the circumstances of this case, and therefore, concur in the result reached by' my associates. I doubt the correctness of the conclusion, however, that the action is not maintainable under section 1866 of the Code of Civil Procedure (Adams v. Becker 13 N. Y. State Rep., 41). It does not seem to me that this conclusion necessarily follows from the opinion of the court of appeals in the case of Horton v. Cantwell.  