
    Elizabeth Greenleaf et al., App’lts, v. The Brooklyn, Flatbush and Coney Island Railway Company et al., Resp’ts. 
    
    
      (Court of Appeals,
    
    
      Filed February 27, 1894.)
    
    1. Partition— Title.
    A partition of land by action does not create title where none existed before.
    
      2. Ejectment—Eight to recover.
    To sustain ejectment, plaintiff, in the absence of any possession of the land, prior to the partition deed, in the parties to such action or their predecessors in interest, must show subsequent possession thereof prior to that of defendant, who was not a party to such action.
    8. Same.
    Merc payment of taxes, claims of title and assertions of ownership made even upon the land, do not show the actual possession which raises the presumption of title sufficient to maintain ejectment.
    4. Same—Admissions.
    Admissions of defendant’s grantor that plaintiff owned the land, when neither he nor plaintiff was in possession, do not bind the defendant, who subsequently took possession claiming to be the owner.
    Appeal from judgment of the general term of the supreme court in the second judicial department, entered upon an order made July 21, 1893, which affirmed a judgment in favor of defendants entered upon a decision of the court on trial at special term dismissing the complaint.
    This was an action of ejectment.
    The facts, so far as material, are stated in the opinion.
    
      
      Mornay Williams .& Frederic A. Ward for app’lts; William G.
    
    
      De Witt for resp’ts.
    
      
       Affirming 54 St. Rep. 291.
    
   Earl, J.

The facts of this case are not materially different from those which appeared in the record when the cáse was before the second division of this court upon a former appeal Greenleaf v. B., F. & C.I. R. R. Co., 132 N. Y. 408; 44 St. Rep., 763. Now as then the plaintiffs rely mainly for their title upon a deed given under a partition of land by action between parties who are not shown ever to have had title to the land or the possesssion there-

A partition of land by action does not create title where none existed before. The sole effect can be to give title in severalty where before it was in common; and it establishes and settles the title between the parties to the action and their privies. It cannot have greater effect than a voluntary partition of the land by and between all the parties interested therein.

Such an action is not a proceeding in rem as such a proceeding is known to the law. In such a proceéding involving property the res is seized and really made defendant, and on adjudication establishing its liability or its status, if regularly made, binds the whole world. It has been found difficult to give a precise and comprehensive definition of a proceeding in rem or a judgment in rem , and we need not attempt it now. 2 Phil. Evi. 5; 2 Smith’s Leading Cases, 585; Freeman on Judgments [3d ed.], 654; Woodruff v. Taylor, 20 Vt. 65; Mankin v. Chandler, 2 Brock. 125.

In a partition action the land is not seized, and in no proper sense is it proceeded against. The action is commenced, and the court obtains jurisdiction, not by service of process upon theJand, but by service upon the persons jointly interested therein; and without the presence of persons properly made parties the court obtains no jurisdiction and its judgment would be an absolute nullity, binding upon no one. Such an action is no more a proceeding in rem than a foreclosure action, or any other action the purpose of which is to enforce or establish the rights and interests of parties in land.

Therefore, as the plaintiffs do not trace their title to the original patentee therefore, and are thus unable to show a claim of paper title, they must fail to recover the land in this action because neither they nor those under whom they hold ever had the actual possession thereof. Miller v. Long Island R. R. Co., 71 N. Y. 380 ; Roberts v. Baumgarten, 110 id. 380; 18 St. Rep., 162.

There need be no misapprehension as to what was decided upon the prior appeal. ■ It was there held that the deeds under the partition judgment were competent evidence, and yet not of themselves sufficient evidence to show title in the plaintiffs good as against the defendants in possession, and that the plaintiffs in order to establish a right to recover in this action, in the absence of any possession of the land prior to their deeds, must show subsequent possession thereof prior to the possession of the defendants. This they utterly failed to do. Mere payment of taxes, claim of title, assertions of ownership made even upon the land, mere words however emphatic, do not show the actual possession which raises the presumption of title sufficient to maintain ejectment.

The defendants do not claim title under the partition action and have no relation whatever to that action. Assuming that they took a deed from William A. Engeman, he did not claim any title under that action, and it does not appear that he ever had any title or possession, and his admission, if he made one, that the plaintiffs owned the land, neither he nor they being at the time in possession of the land, does not bind the defendants subsequently taking possession of the land and claiming to be the owners thereof, and relying upon their possession as sufficient evidence of ownership against the plaintiffs.

We, therefore, see no reason to doubt that the judgment below is right and it should be affirmed.

All concur.

Judgment affirmed.  