
    George W. Platt, plaintiff and respondent, vs. Fannie L. R. Picton and Thomas Picton, defendants and appellants.
    A plaintiff, in ejectment, cannot establish his title to the premises by the mere recitals in a lease introduced in evidence of proceedings in the late court of chancery, by virtue of which the shares or interests of infants in the premises in question were ordered to be, and were, leased for a term of years. The proceedings themselves must be proved.
    (Before Moncrief, Garvin and McCunn, JJ.)
    Heard December 14,1864;
    decided December 31, 1864.
    This action was brought 'to recover the possession of real estate. It was tried before a justice of this court and a jury. On the trial the plaintiff proved that one Augustus Wynkoop, in his lifetime, and at the time of his death, in July, 1836, was owner and in actual possession of the property described in the complaint in this action. The plaintiff then proved the due execution and delivery of a lease of the property in question by the parties thereto, (lessors and lessees,) and payment of rent by the lessees therein to such lessor, and to Francis S. Wynkoop, who was an heir, and acted for the other heirs of said estate, which lease was bipartite and dated in May, 1848, from Augustus Wynkoop and Anna his wife, Francis S. Wynkoop and Sarah F. his wife, (said Francis acting as well in his own right as in the capacity of trustee of the separate estate of Mrs. Mary J. W. Reynolds,) Henrietta Wynkoop, John M. Keese, (acting as well in his own right as in the capacity of special guardian of the property of his infant children, John W. Keese, Henrietta W. Keese, and Franklin S. Keese,) and Mary J. W. Reynolds, wife of Henry H. Reynolds, to George W. Platt and Nathan C. Platt. The premises in question were thereby leased for the term of twenty-one years, from May 1st, 1848, at $120 per annum, payable quarter yearly and taxes and assessments. Such lease contained a covenant to pay for the buildings erected or to be erected, (as provided in the former lease recited therein, and whereof it was a renewal,) or to renew the lease. Such lease was duly executed, acknowledged and recorded July 13, 1848.
    The counsel for the plaintiff offered such lease in evidence. The counsel for the defendants objected to the reading of the recitals as evidence of the facts related therein; that a petition in chancery had been theretofore “ presented to the vice chancellor of the first circuit by John M. Keese, on behalf of his infant children above named, praying for authority to execute leases of certain real estate which had belonged to their late mother, Catharine B. Keese, deceased, including, their share or interest in the land ” therein described; that such proceedings were thereupon had that by an order of the Court of Chancery, entered in the office of the clerk in chancery for the first circuit, on the 26th day of June, 1845, the said John M. Keese was appointed special guardian of the said infants, for the purposes of the said application, upon his giving the security therein required that “ such security, duly approved and acknowledged, was subsequently filed in said officethat “ by an order of the said court, duly entered in the same office, on the 5 th day of November, 1845, the said John M. Keese, special guardian as aforesaid, was empowered, among other things, to contract for the leasing of the shares and interest of the said infants in such real estate as aforesaid that “in pursuance of the last .mentioned order, the said special guardian afterwards made his report to the Supreme Court in equity, bearing date the 16th day of May, 1848, stating in substance, aihong other things, that he had entered into an agreement, subject to the ratification of said court, for the execution of a lease of the land therein described to tue said parties of the second part for the period and upon the terms and conditions therein mentionedthat “ an order of the said Supreme Court was made on the 23d day of May, 1848, by which the said report and agreement were ratified and confirmed, and * * said guardian was directed' to execute such lease on behalf of said infants.” And that “an undivided fifth part” of and in the premises therein mentioned was “held by said Francis S. Wynkoop, in trust for the sejparate use of Mary J. W. Reynolds, above named, who for that reason became a party to that-lease and was authorized and directed “ to join and execute the same on her behalf” by such order.
    The court overruled such objection, and allowed said recitals to be read in evidence, to which the counsel for the said defendants excepted.
    The plaintiff then duly proved and read in evidence an assignment of the interest of said Nathan C. Platt to George W. Platt, dated June 19, 1861.
    The plaintiff having rested, the defendants’ counsel moved to dismiss the complaint on the following grounds :
    1st. That the plaintiff had not shown any title to the land.
    2d. That the proceedings alleged to have been taken in the Court of Chancery on behalf of the infant heirs were not shown, nor had any proof been shown of any authority to act for the infant heirs referred to in said lease.
    3d. As to the defendant, Thomas Picton, the plaintiff had not proved any wrongful act of his, and he was not liable for his wife’s wrongful acts, and was not proved to be in possession.
    4th. Because no wrongful possession of the defendant, Mrs. Picton, was proved, and she could not be held liable for her husband’s acts.
    The court denied the motion, and the defendants’ counsel excepted.
    The defendants’ counsel moved to amend the answer of the defendants by inserting averments as to the purchase of said property and holding possession thereunder, and of an agreement to execute an assignment, as proved. The court denied such motion, and. the counsel for the defendant, Mrs. Picton, excepted. The counsel for the defendants insisted that the evidence and case should be submitted to the jury, which the court refused, and directed a verdict for plaintiff, to which the counsel for the defendants excepted. The jury thereupon found a verdict for the plaintiff for the premises described in the complaint, and the court directed an .order to be entered that the exceptions taken be heard at the general term, in the first instance. Judgment was in the meantime suspended.
    
      J. C. Garter, for the plaintiff.
    I. The exception taken by the defendants to the reading of the recitals in the lease from the heirs of Augutus Wynkoop cannot be maintained. The truth of the recitals should be left to subsequent proof. If not given, the proper time to dispose of the question how far the plaintiff has maintained his title, was at the close of his case.
    II. When the defendants’ counsel, at the close of the plaintiff’s case, again made use of this point, he made it the ground of a motion for a nonsuit. A nonsuit could not properly be granted' upon such a ground. The utmost effect that could be given to it would be to limit the plaintiff’s recovery to an undivided share of the premises in question for the term of. years mentioned in the lease.
    1. Previous to the Code, the plaintiff, in ejectment, might claim, in his declaration, an entire interest in the premises, and upon proof of an undivided share in the same premises, the variance would be disregarded, or the declaration would be amended to conform to the proof. The matter was regarded as one of form, except surprise was alleged.
    2. Under the broad provisions of the Code touching the disregarding of variance between the allegations and the proof, the objection has even less force. (Code, §§ 169, 170.)
    III. If the defendants had stood upon their motion for a nonsuit, and had not gone into their defense, the court would even then, after the trial, have amended the verdict to conform to the proof, in case it was of the opinion that the plaintiff had not made out title in himself to the share of the infant heirs.
    IY. But the defendants did go into their defense, and, by their own evidence, supplied the very defects which they had made the grounds of previous objection. They proved that the only title or claim they had to thé premises in question, was under an agreement with Nathan C. Platt for an assignment of this very lease. Nathan C. Platt, as one of the parties to this lease, was bound by all the recitals in it, and the defendants, in claiming under him alone, were equally bound. This is the familiar rule of law.
    1. The rule is equally clear and familiar, that where a defendant has objected to the plaintiff’s proof for any insufficiency, and has then, in the course of his own evidence, supplied the defect, he waives the objection.
    Y. The other grounds upon which a nonsuit was moved for, are clearly frivolous.
    YI. The defendants, on going into tlieir own case, introduced evidence tending to show that Mrs. Picton had an equitable right to an assignment of Nathan 0. Platt’s interest in the lease. The learned judge ruled that this defense could not be. made under the pleadings. His ruling was certainly correct, both upon principle and authority.
    
      1. It has been held that an equitable defense, when pleaded, may be interposed in an action to recover the possession of real property. .(Grary v. Goodman, 2 Kern. 266.)
    2. But, in the case at bar, no hint of the defense was contained in the answer. In such a case, to permit such a defense to be shown, would be in the face of the most settled rules of legal procedure. ' (Miller v. Platt, 5 Duer, 272, 284 Dewey v. Hoag, 15 Barb. 365.)
    3. Had this defense been allowed to go to the jury, and been sustained by their verdict, we should have had the novel instance of a decree for a specific performance made by a jury. And this, too, upon evidence on which any court would have instantly dismissed a bill. And what is more, the record would nowhere have exhibited a trace of the issue upon which the case was determined.
    VII. The refusal of the court to allow the answer to be amended so as to embrace this defense, was not error. Indeed, it would have been palpable error for the court to have granted the motion. To permit a defendant who has given his adversary no intimation of any other than a defense at law, to set up and prove what would properly be the subject matter of a bill in equity, would be a stretch of the practice of granting amendments quite unprecedented.
    
      Daniel C. Briggs, for the defendants.
    I. The lease was admitted as evidence, only as a muniment of title, in the same manner that deeds of the locus in quo, not between the parties, are evidence to show an estate in the plaintiff. Recitals in such deeds are not evidence. Recitals are evidence between the parties to a deed, and to a certain extent between privies, but they never bind strangers. The defendants were not parties to the lease, nor were they in possession under it. The court erred in deciding that the recitals might be read in evidence. (Hill v. Draper, 10 Barb. 454 Beekman v. Bigham, 5 N. Y. Rep. 366. Jackson v. Harrington, 9 Cowen, 86. Jackson v. Shepard, 7 id. 88. Parmelee v. Thompson, 7 Hill, 77. Brandt v. Klein, 17 John. 
      335. Jaekson v. Davis, 18 John. 7. Jackson v. Brooks, 8 Wend. 426, and 15 id 111)
    II. It is a cardinal principle that, in ejectment, the plaintiff must rely on the strength of his own title, and not on the weakness of that of his adversary. Every presumption of law is in favor of an actual possession, and this presumption protects the possession until the plaintiff has established a good legal paramount title ; and when this is done, the presumption changes sides. (Hill v. Draper, 10 Barb. 454, 458. Layman v. Whiting, 20 id. 559. Bartow v. Draper, 5 Duer, 130. Penrose v. Griffith, 4 Binney, 231, 237.)
    In this case the plaintiff failed to show title in himself. (Jackson ex dem. Loop v. Harrington, 9 Cowen, 86.) The paper he produced showed title out of him, (the recitals being good against the party producing them.) The legal proceedings referred to in the lease should have been proved by the record ; without this, the plaintiff failed to show title in himself. It is questionable whether a record can ever be proved by a recital, even between the parties, and it is clear that this cannot be done to the prejudice of infant owners.
    III. The motion for a nonsuit should have been granted. When it was made, the plaintiff had failed to establish a right to recover by competent evidence, and the defendants had a right to a dismissal of the action.
    IV. The defense proved was a conclusive answer to the action. The defendants entered into possession as purchasers, and not as lessees. The plaintiff and Nathan C. Platt were partners in business and partners in this lease, and Nathan sold the lease to the defendant, Mrs. Picton, and received the whole consideration ($5000) in cash, at the time of the purchase. A grantor who has received the whole consideration of the purchase, and is in equity bound to give a deed, cannot maintain ejectment against his grantee. If necessary, the court will presume a grant to Uphold such a possession. The affidavit of Mrs. Picton, put in evidence by the plaintiff, is conclusive as to the character of the holding. (Crary v. Goodman, 12 N. Y. Rep. 266. Chase v. Peck, 21 id. 581. Traphagen 
      
      et al. v. Traphagen, 40 Barb. 537. Thurman v. Anderson et al. 30 id 621. McCray v. McCray, Id. 633. Requa et al. v. Holmes, 19 How. Pr. 430. Miller v. Plntt, 5 Duer, 284.)
    But in this case no grant was necessary. The subject of the purchase was a terminable leasehold interest, and this would pass by payment and delivery of possession. Although such a term could not be created by parol, it might be assignable by parol and delivery of possession, and the termor in possession could hold against his assignor, who would be obliged to rely on the assigned term to recover. He certainly would be estopped from recovering back property for which he had received full and adequate payment, on the principle of estoppel in pais. (Pratt v. Hudson River R. R. Co., 21 N. Y. Rep. 305, 309. More v. Smedburg, 8 Paige, 600. Harder v. Harder, 2 Sandf. Ch. 17. Lowry v. Tew, 3 Barb. Ch. 407.)
    V. It is no answer to this defense that it was not specially pleaded. It was proved without objection, and it is too late to say.it was not admissible. If that objection had been taken at the trial it could have been obviated by an amendment instanter, or by postponement and a motion. The plaintiff prefers to receive it, and having done so the court will conform the pleadings to the facts as established on the trial, in furtherance of justice, under a power in the Code to that effect. (Code, § 150, subdiv. 2. Id. § 173. Hunter v. H. R. Iron Co., 20 Barb. 493. Voorhies’ Code, 8th ed. 1864, 351, note e; 352, notes, b, c, d. Lounsbury v. Purdy, 18 N. Y. Rep. 520. Pratt v. Hudson River R. R. Co., 21 id. 305.)
    VI. The court erred in directing a verdict to be found for the plaintiff. On the contrary, a verdict should have been directed for the defendants, or the evidence and case should have been submitted to the jury.
   By the Court, Moncrief, J.

The plaintiff, to maintain his case, was bound to prove his title to the premises from which he sought to eject the defendant. He attempted to do this by offering in evidence a lease containing recitals of certain alleged proceedings in the Court of Chancery, by virtue of which the estates belonging to infants were embraced and regulated by order of that court.

The offer to read such recital lease was objected to by the defendant and the objection was overruled, and the defendants excepted. This was error. While it might be evidence of title in one of the parties, (lessors,) assignors to the plaintiff and another, it was not evidence of title in the plaintiff, who had a verdict as an entirety. The verdict was in solido and not merely for the portion of him who had shown title dehors the recitals. Parties are not permitted to make evidence for themselves. Recitals of alleged proceedings in a court, or elsewhere, in an instrument purporting to convey a title, are not evidence of facts. The proceedings themselves must be proven, aliunde.

Holding, as we do, that the exception was well taken, the verdict for the plaintiff must be set aside and a new trial ordered, with costs to abide the event.  