
    SISSON v. CUMMINGS.
    
      N. Y. Court of Appeals ;
    
    
      June, 1887.
    [Reversing 35 Hun, 22.]
    1. Ejectment; joinder of infant remaindmen of tenant as co-defendants.] The fact that a husband surviving his wife and in posses- . sion of her real estate, as tenant by the curtesy, claims premises which did not belong to her, does not alone bind her infant heirs, or make them liable in ejectment, as co-defendants with him.
    2. The same; hostile claim.] The provision of Code Civ. Pro. § 1503, allowing any person claiming adversely to be joined as defendant, does not justify joining such heirs, in ejectment against the life tenant and taking judgment against them with costs, without any evidence of claim or hostile act on their part.
    3. Infant defendant in ejectment; disclaimer.] An infant, made a party defendant in ejectment, under a general allegation that the defendants or some of them claim to own the premises, and deny the plaintiff’s title, may disclaim, and deny claiming any interest.
    4. The same; judgment.] Under such an answer, if there is no evidence to support the allegation of the complaint as against the infant, it is error to render judgment against him.
    Appeal from a judgment of the general term, fourth department, supreme court, affirming a judgment in favor ■ of the plaintiffs, entered upon the trial of this action by the court without a jury.
    Ejectment brought by Humphrey Sisson and Walter Fox against Peter Cummings, and Cecilia and James Cummings, to recover a strip of land lying between Otter Creek bay and the westerly line of land owned and occupied by defendants.
    Otter Creek flows into the St. Lawrence river, forming at its mouth Otter Creek bay, part of which is of considerable depth and navigable. The remote grantor of Ellen Cummings obtained title by a grant from the State, of lands bordering on the river and the bay, which described certain boundaries thereof as running u to a point on the margin of the river and bay, thence along said margin of said bay southerly,” etc. Ellen Cummings died intestate, and the land descended in fee to her children, the infant defendants, Cecilia and James Cummings, subject to the life estate of her husband, the defendant Peter Cummings, as tenant by the curtesy.
    The complaint contained an allegation that the defendants, “ or some of them” claimed to own the strip of land in question, and this allegation not being denied, the general term, affirming the judgment for the plaintiffs, held that the infants were proper parties defendant, and, further, that the grantee from the State had a legal right to possess and occupy the land between high and low-water mark, subject to the right of the State to take the land for its own use (Decision reported in 35 Hun, 22).
    From the judgment of the general term, the infant defendants alone appealed.
    
      Wayland F. Ford, for the defendants, appellants.
    
      Denis O’Brien, for the plaintiffs, respondents.
   Andrews, J.

We deem it unnecessary to decide the interesting question argued at the bar respecting the construction of a grant by the State of lands bordering on the river St. Lawrence above the ebb and flow of the tide, which bounds the granted premises by the margin or the shore of the river, and whether, under such a description, the title of the grantee extends to the margin of the water at its low stage, or only to high-water mark.

We are of the opinion that the judgment against the infant defendants, who are the only appellants here, must be reversed upon a preliminary question. Assuming that the plaintiff's title under the Macomb patent extended to the line of low-water, and that they established title to the water front, and to the land under water to low-water mark, lying south-west of and adjoining the premises embraced in the deed of July 5, 1861, from John W. Fuller to David and William ¡Woodworth, under which the defendants claim, we think, nevertheless, the appellants were entitled to a dismissal of the complaint on the ground that it did not appear on the trial, by the pleadings or evidence, that they were in possession of the demanded premises, or claimed title thereto, as remaindermen or otherwise, at or before the time of the commencement of the action. Upon the death of Ellen Cummings, January 31, 1875, the title to the Wood-worth lot descended to her two children, the infant -defendants, subject to a life estate in Peter Cummings, the husband, as tenant by the curtesy. Ellen Cummings acquired title to the lot by deed from David Woodworth, November 10, 1871,.subject to a reservation (so called) to Fuller (the original grantor of the Woodworths), contained in the original deed from Fuller to them, of “ all his rights to the land now under water, and to the water front beyond or. south-west ” of the south-west line of the lot conveyed. She entered into possession under her deed from Wood-worth, and occupied the lot, and the house upon it, with her husband and children, until her death. The premises in controversy are those embraced in this reservation. It neither appears that Ellen Cummings ever entered upon, or that she claimed any right or interest in, the premises in question. There is evidence that, subsequent to her death, Peter Cummings, her husband, one of the original defendants in the action, entered upon the premises in dispute, and built a hog pen and privy thereon, and tore down a wharf, constructed by the plaintiffs, between the lot conveyed to Ellen Cummings and the river. It may be admitted that enough was shown to entitle the plaintiffs to maintain ejectment against Peter Cummings. He has submitted to the judgment below, and has not appealed, and his rights are not now in controversy. But the case discloses, no ground upon which a judgment against the infant defendants can be supported. There is no pretense of any act on the part of the infants by way of assertion of title in themselves to the premises in question, nor is there any evidence that they have ever questioned or disputed the title of the plaintiffs.

The complaint alleges that the defendants, after the death of Ellen Cummings, wrongfully entered into possession of the real estate described, and wrongfully withheld the same from the plaintiffs, and that the defendants, “ or some of them,” claim to own the same, and deny the plaintiff’s title thereto. These allegations are not admitted by the infant defendants in the answer, but are denied, and they expressly aver that they have no interest in any lands except those of which their mother, Ellen Cummings, was seized at the time of her death, to wit, the lands embraced in the Woodworth deed, and they insist that the action cannot be maintained against them. It is clear, we think, that the infant defendants are not bound by the acts of their father, the tenant for life. It is true that both his rights, and the rights of the infants in the land conveyed to Ellen Cummings, are derived through her. But, as we have said, the deed to Ellen Cummings carried no part of the premises in dispute, which lie wholly outside of the boundaries in the deed. The evidence also tends to show that Peter Cuín’;,mgs, in entering upon the land in controversy, was asserting a supposed right as riparian owner to use the shore between high and low-water mark adjacent to his land. But his acts must be referred to his own interest and title, and not to the title of the remaindermen. The infants could not control his conduct, and it would be grossly unjust to make them responsible for wrongs committed by him without their sanction or authority. The joinder of the infant defendants is not justified by section 1503 of the Code. That section authorizes any person claiming title to, or the right to the possession of, real property sought to be recovered in an action, as landlord, remainderman, or reversioner, or otherwise, adversely to the plaintiff, to be joined as defendant. The infants,, so far as appears, neither claimed title to, or the right to the possession of, the land in controversy, nor did they do any act in hostility to the plaintiffs’ title, and the complaint as to them should have been dismissed.

Judgment reversed as to the appellants, and a new trial ordered, with costs to abide the event.

All concur.  