
    John A. Bell, Pl’ff, v. Jacob A. Gittere, Def’t.
    
      (Superior Court of Buffalo,
    
    
      General Term,
    
    
      Filed March 24, 1890.)
    
    1. Partition—Pleadings.
    The complaint in an action of partition in county court alleged that a . certain deed made by the ancestor of the plaintiff was not intended to operate as a deed, but if executed was intended as a mortgage, and demanded that the respective interests of the parties be established and the premises be sold. Held, sufficient to present a question for the court to determine if it possessed jurisdiction.
    3. Same—Jurisdiction.
    The Code having conferred on county courts jurisdiction to try questions of title in actions for partition, the county court had jurisdiction to determine that the deed so given was fraudulent and void.
    Motion to vacate and set aside a judgment, and for a new trial, made upon a case and exceptions ordered to be heard at the general term in the first instance.
    
      Carl T. Chester, for pl’ff; Adelbert Moot, for def’t
   Hatch, J.

By this action plaintiff seeks to have determined conflicting claims to real property pursuant to the provisions of article 5, chap. 14, Code of Civil Procedure. The common source of title runs from Catherine Gittere, deceased, and by mesne conveyances both 'parties make claim to title. Catherine Gittere died in 1876 possessed of the property described in the complaint. Joseph G. Gittere, her husband, survived her and continued to occupy the premises until his death, in May, 1881. Thereafter an action of partition was commenced in the county-court of Erie county, by the heirs of Catherine Gittere, which resulted in a judgment, and the premises were sold under the; direction of the court, and were bid in by the plaintiff in the partition action, who subsequently deeded the same to one Herman,, who conveyed to the plaintiff.

Defendant’s claim of title is based upon a quit-claim deed-claimed to have been executed by Catharine Gittere and her husband October 6, 1875, to Peter G. Gittere, and 'by Peter and wife: to M. E. Gittere July 8, 1880, and by M. E. Gittere to Elizabeth. Gittere, wife of the present defendant, November 17, 1880, and. by Elizabeth, through devise, to Jacob A. Gittere, the defendant.. All of the foregoing deeds were duly recorded prior to the commencement of the partition action, except the deed to Elizabeth, which was not recorded until September 24, 1881, nearly three: months after the action for partition was commenced, which was on July 1, 1881, and lis pendens filed the same day. M. E. Gittere was made a party defendant in the partition action, mentioned in the lis pendens as such, and was served with a copy of the summons and complaint. The complaint in the partition action, after alleging the interest of the heirs of Catharine Gittere in and to lihe premises, makes reference to the deeds constituting defendant’s chain of title to and including the deed to M. E. Gittere, and alleges : “ That .though said deeds do in manner and form purport to convey the title of said premises (if they were ever-executed as the record shows), they were never intended to operate-as deeds, and for that purpose are absolutely void; * * * that, the said deed * * * to Peter G. Gittere was never, in fact, executed in form and effect as appears of record, but if it was ever-executed, it was only intended as a mortgage, and not otherwise.” The prayer for judgment asked that the rights and interests of the-parties be established, and that the premises be sold. Default was1, made by all the defendants, except certain infants, for whom the usual answer was served by guardian. A reference was ordered, and proof taken, establishing the rights of the parties, and also tending to establish that the deed to Peter G. Gittere was never-executed by the grantor therein, and was fraudulent, and the-referee reported that said deed was void, and vested no right in or to the premises in Peter G. Gittere and wife, and that the subsequent conveyance to M. E. Gittere was also void. Judgment, was subsequently entered confirming said report, and adjudging-the said deeds inoperative and void. Upon the first trial of this action the court directed a verdict for the plaintiff, holding that, the judgment in the partition action bound the defendant, M. E. Gittere, and those persons deriving title from her, for the reason that the deed from her being recorded subsequent to the filing ofi the lis pendens, she had notice, and was concluded by the judgment pronounced. But the defendant having not only offered to prove title, but possession thereunder, at the time of the partition,, the court held that this was notice of title; that plaintiff took subject to such rights. Bell v. Gittere, 14 N. Y. State Rep., 61.

Upon the second trial, which is now the subject of review, the court held the judgment of partition conclusive, unless at the time of its rendition those claiming under M. E. Gittere were in possession of the premises, in which event they would not be bound by the judgment. Upon this question the jury found for the plaintiff. It is not now claimed that the court committed any error in its charge, but the claim is made that the primary object of the action, in the county court, was for the cancellation of deeds, to the end that it be established that there was property to partition, and then to partition the same, the former of which the court-had no jurisdiction. In other words the court is confronted with the naked question, did the county court have jurisdiction to pro- « nounce the judgment which it gave ?

The first point attacks the complaint, i. e.\ that no facts are alleged in the complaint in the partition action which authorized the cancellation of the deeds. As already stated the complaint therein alleged that if the deeds were ever executed they were-not intended to operate as such and were for that purpose-void, but if valid for any purpose it was as a mortgage and not as a deed. In addition the complaint alleged the apparent interest by a statement of the deeds, parties thereto and records. Thus the allegation was perfect as a statement of the rights and interest of M. E. Gittere in whom the record showed the title to be at that time, if the deeds were valid as such, and was such statement as is required by § 1542, Code of Civ. Pro. This was sufficient to present a question for the court to determine if it possessed jurisdiction. The demand for judgment is also sufficient. The action was partition, the judgment demanded that the-respective interests of the parties in the premises be established. This called upon the court to determine the interest alleged, its character and extent, as the law requires the determination of such interest in such action. Code Civ. Pro., § 1543.

It matters not that the complaint also demanded other relief; it is sufficient if it demanded the judgment warranted by the facts alleged, and applicable to the subject of the action. Pede v. N. Y. & N. J. R. Co., 85 N. Y., 246.

The further claim is that the county court had no- jurisdiction to render the judgment relied upon by plaintiff. The basis of attack consists in the claim that primarily the action was not one of partition, but was an action to cancel a deed in the first place, that it might partition the property in the second place. By §- 340, Code, jurisdiction is conferred upon county courts in actions of partition, and by § 348, jurisdiction in such actions is made coextensive with the supreme court. These sections,, it would seem, confer jurisdiction upon the court to try any question presented in such action, when the power to be exercised is applicable to the issue, without invoking the aid of any extrinsic power not directly conferred by the law authorizing the action, in other words, if the complaint presents by its allegations only those issues recognized as embraced within the character of the action which may be tried therein, then the court possesses jurisdiction, but if the issues are of such a character that the court, in order to render the judgment asked, must reach beyond and seize upon power generally conferred, and outside of the statute authorizing the action, then courts of limited power are without jurisdiction to pronounce the judgment asked. By § 1543, Code, provision is made for the trial of title in actions of partition and by § 1545, in case of default, the court is required to ascertain the rights, shares and interests before interlocutory judgment is rendered. It is true that these sections do not purport to change or enlarge the jurisdiction of the county court, but what they do provide for, is that in actions of partition title may be tried, not by the exercise of independent equitable powers inherent in a court of general jurisdiction, but by virtue of a statute providing what issues may be tried in such actions.

Prior to these sections of the Code such power was much doubted. Van Schuyver v. Mulford, 59 N. Y., 426. But since, the supreme court has held that title may be tried and determined in partition. Knapp v. Burton, 7 Civil Pro., 448.

The jurisdiction to try actions of partition being conferred, and-title being one of the issues appropriate to, and embraced within such action, it may be determined without invoking any other powers than such as are expressly provided for, as it would seem to be absurd that jurisdiction of the subject matter of the action should be conferred, and power to determine the issues embraced within it should be withheld.

The principle here invoked seems to have been recognized in Hyland v. Baxter, 98 N. Y., 610, where the court says: “ The surrogate’s court is a court of limited powers and jurisdiction, but it has jurisdiction to determine questions, either legal or equitable, arising in the course of proceedings in the execution of powers expressly conferred, and which must be decided therein.”

The learned counsel for defendant relies upon Avery v. Willis, 24 Hun, 548; Thomas v. Harmond, 46 id., 75; 11 N. Y. State Rep., 79, to support-his contention. In the first of these cases the mortgage sought to be foreclosed was so defective in its description of the land intended to be covered by it that no judgment of foreclosure could be rendered until the instrument was reformed. It seems clear that the power to foreclose and the power to reform an instrument are quite independent in character, and it was. well held that no foreclosure ■ could be had until reformation was decreed. Of the latter action no jurisdiction was conferred, and this for the reason that the issue of refprmation was in no sense embraced within the power granted to foreclose, and it was, 'there-, fore, necessary to seel; such authority in general equity power which was not .possessed by the county court. Such would be the present case if no title could be tried .and adjudicated -in an action of partition without resort to the general powers of a court of equity, but such is not the case where the statute provides that, such issue may be so tried in such action, and jurisdiction of the subject matter thereof is conferred. The second case relied upon was held to belike the first in principle and followed that decision. •We think, for the reasons stated, that a clear distinction exists between the cases, and that the county court possesses jurisdiction to pronounce the judgment which it gave. The defendant, M. B. Gtittere, was served with the summons and complaint in the partition action, and made default; she was then bound by the judgment rendered, and her subsequent grantees are also bound. Moore v. City of Albany, 98 N. Y., 410.

The exceptions are, therefore, overruled and judgment ordered for the plaintiff upon the verdict, with costs.

Beckwith, Oh. J., concurs; Titus, J., not sitting.  