
    Albert T. Brown, Resp’t, v. Sarah Teel et al., App’lts.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed February 4, 1891.)
    
    Real pbopbbty—Action to dbtebmine claims to—Pleading.
    Where an action is brought under Code Civ. Pro., §1688, et seq., to compel the determina ion of a claim, adverse to that of plaintiff, in real property, the complaint must “ set forth facts showing” plaintiffs’ right to the land, and it must also state the facts which go to show that the defendant unjustly claims an estate in the land ; it is not enough to allege that defendant unjustly claims a fee.
    Appeal by defendants Teel and Hunn from a judgment in favor of plaintiff.
    
      George B. Lawrence, for app’lt, Sarah Teel; Young & Kellogg, for app’lt, Hunn; Lyman H. Northup, for resp’t.
   Learned, J.

This is an appeal by the defendants Teel and Hunn from a judgment against them in a proceeding to compel the determination of claims to real property.

Elisha Brown, now dead, on the 18th of December, 1875, entered into an agreement, under hand and seal, with his son, the plaintiff. By this the plaintiff agreed to support and to take care of Elisha during his life, and in consideration thereof Elisha agreed to give plaintiff the property in question. It was provided that if Elisha should become dissatisfied with his support by the plaintiff he might cancel the agreement, paying plaintiff a certain price for what he had done. Elisha was to have the use and the possession of the property during his life. It was also provided that, should the agreement be carried into effect during the natural life of Elisha, “ then this agreement shall be considered a good and sufficient title to the above described house and lot to the said plaintiff.”

This agreement was left with the' justice of the peace who drew it It was not witnessed or acknowledged. The justice died in 1877. Elisha died in 1878. On August 26, 1878, the administrator of Burbank, the justice, delivered the instrument to plaintiff. He acknowledged it December 17, 1879, and put it on record. Elisha, until his death, lived with the plaintiff. Since Elisha’s death the plaintiff has had the undisturbed possession and enjoyment of the premises. The defendants are children and grandchildren of Elisha, and with the plaintiff are the heirs-at-law.

The complaint alleges that they unjustly claim a fee in the premises. Against several of them judgment was taken by default. Two of them appeared. Mary A. Hunn denies the complaint generally. Sarah A. Teel, among other things, denies •that she has ever claimed any estate in the premises. She however avers that plaintiff took possession of 'all the real and personal property of Elisha, and she asks an accounting.

On the trial the court rendered judgment against all of the defendants, including appellants who had appeared, barring them of all claim and awarding costs against defendants Hunn and Teel. The action was commenced in January, 1889.

In February, 1889, defendant Teel offered to release all claims to the land and to have the action discontinued as to her without costs, but declined to pay costs. A similar offer was made by her in April, 1889. These offers were not accepted by the plaintiff.

On the trial, in order to show that defendants made claim to this property, the plaintiff gave in evidence a letter from him to Mrs. Teel, written in December, 1888, saying that his father left-him a little property, and as he was about to sell it he wanted the heirs to sign off. It did not appear what the reply was. And no such letter was shown to have been received by defendant Hunn.

On this appeal neither of the defendants urge that in equity they have any interest in the premises, nor do they rest upon their legal title. But they say that, never having made any claim to the premises, they have been wrongfully made parties to this-proceeding, and that they have been unjustly required to pay , costs. Therefore they rely on all the objections which may be shown to exist against plaintiff’s action.

This proceeding, like an action of interpleader, is brought by one who has no claim or demand against the defendants. Its object is to compel them to bring to trial claims which they are alleged to have against the plaintiff. Hence it is an important element in the plaintiff’s right to maintain the action that the defendants shall have unjustly claimed an estate in land of the plaintiff. The Code, § 1639, requires the complaint to “ set forth facts showing,” the plaintiff’s right to the land, etc. And showing that the defendant unjustly claimed an estate therein of the character specified in the last section.” The defendants insist that this complaint sets -forth no facts, but merely asserts that the defendants unjustly claim a fee in the premises. 'We think that the defendants are right. The case of Austin v. Goodrich, 49 N. Y., 266, is directly in point. There a demurrer to a similar complaint was sustained because, among other grounds, no facts were stated showing that defendants unjustly claimed title. And it hardly needs argument to show that when a statute requires the com: plaint to state facts showing that defendants unjustly claim a certain estate, it is not a- compliance with the statute simply to allege that the defendants unjustly claim an estate, without alleging any facts showing that.

As, however, the parties in this case went to trial, we ought to examine whether the defect in the complaint was supplied by proof. If it were, we might probably disregard the defect, or allow the complaint to be amended to conform to the proof.

But on examining the case we find no proof whatever that the defendants ever made, before the commencement of the action, ^ any claim to the premises in question. The only evidence tending in that direction is that the plaintiff wrote the letter above mentioned to Mrs. Teel asking the heirs to sign off. The letter does not distinctly state that plaintiff has the title, for he says that he wants the heirs to - sign off, because he is going to sell the land. No evidence was given as to what reply, if any, was made to the letter. And no evidence that the defendant Hunn ever received such a letter. We cannot hold that when one is asked to execute a deed to another of certain land and makes no reply, there is evidence that the party thus asked makes a claim to the land. We do not know of any obligation under which a person lies to execute a deed of land simply because the owner asks it.

It does not appear that these defendants prior to the commencement of the action had disturbed, or threatened to disturb, the plaintiff in possession or had asserted that they had any title.

The learned justice who tried the case found as a fact that the two defendants, Teel and Hunn, unjustly claimed an estate in fee in an undivided portion as heirs at law of Elisha. And that finding seems to be based on the fact that prior to the action plaintiff mailed a letter, as above stated, to defendant Hunn; and that defendant Teel received a similar letter and refused to execute the deed requested. There is no evidence of such refusal; and there is no evidence that defendant Hunn received the letter. We think that the evidence' fails to show that these defendants justly or unjustly made any claim to title to the premises before the commencement of the action.

We do not think it necessary in this view of the case to decide whether the written agreement between plaintiff and Elisha was an executory contract for the conveyance of the premises in case plaintiff should support Elisha; or whether it operated as a deed on the death of Elisha and on proof that plaintiff did thus support him. If the former, then if plaintiff wished to have a legal, and not merely an equitable title he should have brought an action for performance of the contract.

If the latter, then he cannot maintain the present proceeding until the defendants shall have laid claim to some estate in the premises, adverse to his.

Nor need we inquire, in the view we take, whether or not the proof was sufficient to show that the plaintiff had fulfilled his part of the agreement. It is enough for us to say that neither does the complaint aver, nor the proof show, that the defendants claimed an estate in the premises.

The claim which they must have made in order to permit plaintiff to bring this action must have been made before its commencement. We cannot look to the answers of the defendants as an assertion, of such claim, unless the answers admitted that defendants had claimed such an estate. And these answers deny that The plaintiff asked in his complaint for costs of the action and thus the defendants were compelled to litigate.

The judgment as to the defendants Teel and Hunn is reversed and a new trial granted, costs to abide the event.

Landon and Mayham, JJ., concur.  