
    JAMES McTEAGUE, Plaintiff and Appellant, v. HENRY COULTER, et al., Defendants and Respondents.
    Before Monell, Ch. J., and Sedgwick and Speir, JJ.
    
      Decided December 9, 1874.
    Where it appears that an action is one of an equitable nature, or one in which legal and equitable causes of action are united, and the relief or judgment sought must necessarily be of an equitable character, then the case falls within the equity cognizance of the court, and brings the right of action within the limits of ten years (Code, §97).
    The case at bar being one of this character, and one of the defenses set up in the answer being the said statute of limitations, a demurrer to said defense, for insufficiency in not stating facts sufficient to constitute a defense, &c., must be overruled.
    The nature of the action does not depend alone upon the relief prayed for in the complaint. The facts set forth in the complaint, or all th'e allegations thereof, must be considered, by the court, in determining whether the action is of a legal or equitable nature.
    It is probable that two apparently incongruous causes of action (legal and equitable), may be united in one action (Code, § 67; Sternberger v. McGovern, 15 Abb. Pr. N. S. 257), and the issues formed jae separately tried, and therefore such union of the causes in one action would not be ground of demurrer.
    Appeal from an order overruling a demurrer to at* answer.
    The complaint in the first paragraph alleges that in June, 1856, the plaintiff was the owner, and in possession of certain described premises, and in the last paragraph, that the defendants are now in the possession of the premises, and unjustly withholds the same from the plaintiff, and the demand for judgment is to recover possession, of the premises.
    
      But intermediate the two above mentioned paragraphs, it is alleged in the complaint, that in October, 1855, the plaintiff mortgaged the premises to one Sheridan, and in July, 1856, he conveyed them in fee to one Murtha.
    That the sums mentioned in the deeds as the consideration thereof, respectively, were not paid to the said plaintiff, but that the object of the said conveyances, and the understanding upon which the same were made to and accepted by the said John Murtha, was that he, the said John Murtha, should hold the title of the said premises in his own name, but for the benefit of the said plaintiff, and that he should reconvey the same to the plaintiff whenever the plaintiff should request him so to do, or should convey the same to any person the plaintiff should appoint. All of which was known to the defendants. That in the year 1857, the plaintiff having become embarrassed, and Sheridan having commenced the foreclosure of his mortgage, and a decree having been entered therein, the plaintiff applied to the defendant Coulter for advice and assistance. It was agreed, that the defendant Potter should take assignments of the mortgages, and advance sufficient money to pay the other debts of the plaintiff, and that Murtha should convey the fee to Potter, who should hold the premises for the plaintiff’s benefit, and that the legal title should be vested in said Potter simply as a surety for the repayment to them of the sums so advanced, i nd upon repayment of the same with interest. That said Potter, or any person holding under him, would reconvey the same to the plaintiff, and that in the meanwhile the plaintiff should remain in possession of the same. That, relying upon said representations and promises, the plaintiff caused said Murtha to convey, and the said Murtha conveyed said premises to the defendant, Potter, by deed dated March 28, 1858, who, at the time of such conveyance, agreed with the plaintiff and said Murtha to hold the same only as security for the moneys advanced, or to be advanced, by him; and to reconvey the same to the plaintiff on payment thereof, ' and to allow the plaintiff to remain in possesion thereof. That the consideration of said deed was one hundred dollars, although the value of the property was about twelve thousand dollars.
    That in pursuance of such agreement the defendants took assignments of the mortgages in the name of said Potter, but did not advance anything to pay the plaintiff’s debts. That they sold under the foreclosure deed, and the premises were purchased by said Potter.
    That the defendants immediately before the sale represented to the plaintiff that the sale was for his benefit, and promised that Potter would become the purchaser in order to hold the same for the plaintiff’s benefit. That the defendants requested the plaintiff to prevent any of his friends from bidding upon the same, as it was for bis interest that the property should be bought for as small a sum as possible.
    That the premises were bid in by Potter for about the amount due upon the mortgage, although the actual value thereof was about twelve thousand dollars, the plaintiff acting upon the faith of said representations and promises having prevented any of his Mends from bidding upon it.
    That, notwithstanding said representations, the defendants, afterwards, in June, 1859, claimed that Potter was the owner of said premises, and entitled to the possession thereof, and pretended that the plaintiff had no interest therein.
    That in May, 1859, the defendants entered upon premises, and in October, 1859, ejected the plaintiff therefrom.
    That subsequently, Potter conveyed the premises to the defendant Mary A. Coulter, who took the title with full knowledge of all t.he facts hereinbefore set forth, and that no consideration whatever was given for said •conveyance. That the defendants, Henry W. Coulter and said Potter, each claim some interest in the property. That the defendants, ever since October, 1859, have been in possession of the premises, and are still in possession of the same, and have received the rents and profits of the same. That the defendants and each of them could and should have received from said rents and profits, by a proper management of the property, and actually have received from the same far more than the sums advanced by them or either of them, and more than was due on the mortgages, and have been fully paid all sums advanced or expended by them. It is also alleged that the deed to Mary A. Coulter is fraudulent and void.
    For a first defense, the defendants allege that the cause of action, alleged in the complaint, did not accrue within ten years before the commencement of the action.
    For a second defense, another action pending for the same relief.
    For a sixth defense, that title to an undivided half of the premises was in one Penelope Lawrence.
    For an eighth defense, that the conveyance to Murtha was in fraud of creditors, which estops the plaintiff from ever recovering the title.
    For a ninth defense, that after the conveyance to Murtha, the plaintiff held possession only as tenant under a lease, and was dispossessed under summary proceedings; and,
    For a tenth defense, sets up the title acquired by the ■defendants under the foreclosure sale.
    To these several defenses the plaintiff demurred, for insufficiency, and as not constituting a defense.
    The demurrer was overruled, and the defendants had judgment, from which the plaintiff appealed.
    
      
      Mr. W. D. Foulke, for appellant.
    
      Mr. W. J. Foster, for respondents.
   By the Court.—Monell, Ch. J.

This is doubtless an attempt to use the equitable powers of the court to recover possession of real property. The right to recover at law does not exist. The legal estate is out of the plaintiff, and the possession is now held under a title derived from the plaintiff himself. Before the plaintiff can recover in this, or probably in any action, the several deeds to Murtha, to Potter, and to Mrs. Coulter, which now bar the plaintiff’s right to possession, must be removed out of the way; and such removal can be effected only by a court of equity.

The defense of the statute of limitations, which is the only one I propose to examine, can be sustained only upon its being determined that this is an action for relief, within section 97 of the Code, which limits the bringing of the action to ten years.

It is not entirely clear that two causes of action are not stated in the complaint: one of a legal, and the other of an equitable nature The first and last paragraphs of the complaint are the appropriate averments in an action at law to recover the possession of real property ; and the intermediate averments state a cause of action for equitable relief.

It is probable, also, that even two such apparently incongruous causes of action may be united in one action (Code, § 167; Sternberger v. McGovern, 15 Abb. Pr. N. S. 257), and the issues formed separately tried ; and, therefore, such union of the causes, in one action, would not be ground of demurrer.

But this can not be regarded as the union of two several causes of action. The complaint states but one cause of action, namely: the facts under which the defendants obtained and now hold possession of the property; and the only relief appropriate to these facts would be to set aside and remove, as obstructions to the plaintiff’s right to recover, or as clouds upon the title, the several deeds under which the defendants hold. The other allegations in the complaint are merely by way of inducement to the other facts stated.

The uniting of legal and equitable jurisdictions, in one tribunal, has not removed the distinction heretofore existing between legal and equitable causes of action (Peters v. Delaplaine, 49 N. Y. 362), nor changed the remedies appropriate for each, except in uniting the jurisdictions in one court, and sometimes in one action. The law is administered, under this blended jurisdiction, in the same manner as when the jurisdictions were separated. Relief, appropriate to legal causes of action, is granted in such actions ; and equitable relief in such as are of an equitable nature. It is not, therefore, inappropriate or incorrect to continue to denominate actions as legal or equitable actions, as the statement of facts shall disclose their nature, and bring them within the well-understood meaning of these terms.

The complaint, in this case, alleges facts which go in avoidance of the legal title of the defendants. It claims that, under the agreement and understanding, the defendants were to hold the title, in some kind of quiet trust, for the plaintiff’s benefit, and afterward to reconvey to him.

That the facts which are intended to show this trust are denied by the defendants, is sufficient to show that the plaintiff can not recover a judgment for the possession of the property until he has established the truth of the facts ; and then the appropriate relief to follow would be that the trust be enforced, by a re-conveyance to the plaintiff, and not that he recover the possession of the property.

The claim of the adverse title of the defendants is valid upon its face, and extrinsic facts are necessary to be proved to establish its invalidity or illegality. ■ When, that appears, the case falls within equitable cognizance, and the court will exert itself, not to award the possession of the property, but to remove the obstacles now existing to the plaintiff’s alleged right, or, at least, the cloud from the title (Heywood v. City of Buffalo. 14 N. Y. 534).

It is peculiarly the province of a court of equity to entertain a guit, to have declared void and to cancel any written instrument which obstructs or overshadows, the legal title (2 Story Eq. § 700 ; Pettit v. Shepherd, 5 Paige, 493). And this is so, even when the instru , ment is inoperative, if, by remaining uncanceled, it throws a cloud upon the title. And the case for-equitable relief is much stronger where the instrument, is operative, and its cancellation can result only from showing its invalidity by extrinsic facts.

It is, I think, so entirely clear that the relief sought, upon the facts stated in the complaint, is such as to-bring the right of action within the limit of ten years, that a more extended discussion of the question would be supererogative and profitless.

The judgment, therefore, of the special term, overruling the demurrer to the first defense, was correct.

And as that defense goes to the whole cause of' action, it is not necessary to examine the other defenses demurred to, but to assume that the questions arising upon them were correctly decided at the special term.

The order of the special term should be affirmed,, with costs.

Sedgwick and Speir, JJ., concurred.  