
    William Moores, Resp’t, v. John Townshend, Appl’t.
    
      (Court of Appeal,
    
    
      Filed June 1, 1886.)
    
    1. Title—Cloud on—Partition sale, deed of referee is no evidence AGAINST STRANGER TO ACTION.
    Plaintiffs complaint alleged that he was the owner of premises in dispute, and required defendant to deliver up for cancellation, as a cloud upon title, the conveyance under which the latter occupied them. The only proof of title in plaintiff was a deed, purporting to he executed by one John A. Foley, describing himself as a referee duly appointed in a decree in parti tian entered January 1, 1882, at a special term of the supreme court. The complaint and the proof, showed that the defendant, was, at the time of such decree, and for a long time previous, had been in possession of the premises, claiming title under an assessment deed from the comptroller of New York, dated September, 1873: Held, that the proof was inadequate to establish any title in the plaintiff, as against a stranger to the action in which it was given.
    2. Same—Equitable relief.
    That the facts disclosed on the trial did not show any right on the part of the respondent to equitable relief—as the only ground alleged for the relief demanded was the want of an adequate remedy at law, and yet the facts showed presumptively the existence of such a remedy, and the falsity of the averment.
    Appeal from judgment general term supreme court, first department, affirming judgment for plaintiff.
    
      John Townshend, for app’lt; L. A. Gould, for resp’t.
   Ruger, Ch. J.

The relief asked for in this action and granted by the judgment appealed from, required the defendant to deliver up for cancellation, as a cloud upon the title, the conveyance under which he occupied the premises in dispute, and" that the clerk of arrears cancel the conveyance, and also all records and entries relating to the same in his office. This relief was purely equitable in character, and needed for its support the proof of some facts giving the court jurisdiction of such a cause of action. Heywood v. Buffalo, 14 N. Y., 540; Bockes v. Lansing, 74 id., 437.

We have been unable to discover, either in the evidence or the findings, any proof of such facts, or of facts sufficient to entitle the plaintiff to either legal or equitable relief. The complaint alleged that the plaintiff was the owner of the premises in dispute, and, although this allegation was denied by the answer, neither the evidence nor the findings in this respect, supported the complaint. The whole claim of the plaintiff for relief rested upon the truth of this allegation, and, being totally unproved, there is no theory upon which he could be entitled to judgment upon the findings for any relief. The only title in the plaintiff by the findings of fact, is that derivable from a deed purporting to be executed to him by one John A. Foley, describing himself as a referee duly appointed in a decree in partition entered at a special term of the supreme court, January 31, 1882, in an action between one Freeman, plaintiff, and one Be Groot and others, defendants, authorizing the sale of the premises in question by such referee. The parties to the partition action, other than those named, are not disclosed, and there is no proof or finding that any of them, or their grantors, ever had title to, or possession of, the premises in dispute, or any part thereof. On the contrary, the allegations of the complaint, as well as the proof, showed that the defendant, Townshend, was, at the time of such decree, and for a long period of time prior thereto had been, in possession of the premises, claiming title under a conveyance dated September 19,1873, to him from the comptroller of the city of New York, executed in pursuance of a sale for the non-payment of an assessment duly imposed, in accordance with the statute, by the municipal officers of New York. If we look at the proof, it does not aid the findings, for it was wholly confined to the production and proof of the referee’s deed, and certain alleged terms of sale which did not disclose any fact bearing upon the ownership of the premises. This proof was entirely inadequate to establish any title in the plaintiff, as against a stranger to the action in which it was given.

The evidence was undeniably competent, and was unobjectionable, except as to the order of the proof. The question arising thereon was solely as to the legal sufficiency of the evidence, and was fairly presented by the defendant’s exception to the finding of law directing judgment for the plaintiff.

It is essential to the support of a judgment that the findings of fact should establish a legal right, on the part of the successful party, to the relief granted; and when they do not, and there is nothing in the evidence to show such right, an exception to the legal conclusion of the court directing judgment raises the question whether, upon all of t^.e facts found, the party succeeding is entitled to the judgment directed. Hemmingway v. Poucher, 98 N. Y., 287. The question, therefore, seems to be properly raised in the case, and requires the reversal of the judgment appealed from.

It is further urged by the appellant that the facts disclosed on the trial did not show any right, on the part of the respondent, to equitable relief. We think this point, also, is well taken. The only ground alleged for the relief demanded was the want of an adequate remedy at law, and yet the facts stated showed presumptively the existence of such a remedy, and the falsity of the averment. No reason is averred in the complaint why the plaintiff could not obtain all of the relief to which he was entitled, by an action of ejectment; and an examination of the findings and evi-' dence shows that none in fact existed. Phillis v. Gorham, 17 N. Y., 270. The complaint was manifestly insufficient in this respect. Bockes v. Lansing, 74 N. Y., 443; Ocean Bank v. Olcott, 46 id., 19; Allerton v. Belden, 49 id., 378; Venice v. Woodruff, 62 id., 467.

We have been unable to find any case where a party ■out of possession has been allowed to sustain an action guia timet to remove a cloud upon title, except when it was specially authorized by statute, or when special circumstances existed, affording grounds for equitable jurisdiction aside from the mere allegation of legal title. Indeed, the right to resort to a court of equity in such cases was originally based upon the assumption that the legal title to the property had been established by an action at law, and jurisdiction was entertained solely for the purpose of protecting the party in the enjoyment of rights in possession thus legally established; and, while the jurisdiction has in the course of time been somewhat extended, it has never been stretched to cover cases brought merely to establish a legal title or recover possession alone. Spencer Eq. Jur., 658; Story’s Eq. Jur. (11thed.), §711; Adams’ Eq., 199; Pom. Eq. Jur., §§ 1395-1399. In all the cases cited to the effect that equity will entertain jurisdiction to set aside assessments and conveyances as a cloud upon title, the party bringing the action was in possession of the property, or other circumstances gave equitable jurisdiction. Scott v. Onderdonk, 14 N. Y., 9; Hatch v. City of Buffalo, 38 id., 276; Fonda v. Sage, 48 id., 173: Marsh v. City of Brooklyn, 59 id., 283. When the invalidity of the disputed title appears upon the face of the conveyance, or in any proof which the claimant is required to produce in order to maintain an action to establish it, no suit whatever can be maintained in equity to sett it aside, because it is said that a title obviously void does not constitute even a cloud upon the title of the true owner.

The question in this case is not as to the propriety or impropriety of uniting legal and equitable causes of action in one complaint, but it is whether sufficient facts have been alleged and proved to sustain such respective causes of action. It was said by Judge Rapallo, in Bockes v. Lansing (supra), that “to sustain such an action, the facts must be alleged which would be necessary to entitle him to the relief had he sought it in separate actions.”

The cases of Lattin v. McCarty (41 N. Y., 107) and Remington Paper Co. v. O’Dougherty (81 id., 474), have been cited to support the claim that actions to remove a cloud upon title and recover possession may be joined, and that courts of equity will, entertain jurisdiction to give relief in such actions. We do not think that those cases sustain such a doctrine. In both of those cases special circumstances existed outside of the legal title and right to possession which conferred the jurisdiction exercised. As was said by Judge Rapallo in Bockes v. Lansing, with reference to Lattin v. McCarty :

“The instrument sought to be set aside as a cloud was a deed which apparently, and without any extrinsic proof, established a title paramount to the plaintiff’s, and the complaint showed that the defendant had fraudulently obtained possession of the premises, and claimed to own them under the deed.”

The action there was sustained solely upon the ground that the defendants held the legal title by virtue of a deed fraudulently obtained, and the possession by a fraudulent attornment by the tenant of the owner, and therefore ejectment could not have been maintained. These facts were held to give the equitable jurisdiction there exercised.

In Remington Paper Co. v. O’Dougherty (81 N. Y., 481), the action was brought by a purchaser under the sale, upon execution, before his right to a deed had matured, among other things, to set aside a previous conveyance apparently paramount to the plaintiff's right, upon the ground that it was forged; and also certain judgments and mortgages which it was alleged had been paid, and were kept alive for fraudulent purposes. It was held that the facts alleged constituted a case for equitable jurisdiction, and that the court, having jurisdiction for some purposes, could exercise it to give the relief to which the party was entitled.

No facts are alleged in this case giving the court equitable jurisdiction, and we are of opinion that the judgment of the court below should be reversed and a new trial ordered, with costs to abide the event.

' All concur.  