
    John W. S. Earnshaw, as Trustee, etc., Cornelia C. Earnshaw et al., App’lts, v. Maria J. Myers, Individually and as Executrix, etc., et al., Resp’ts.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed June 25, 1888.)
    
    Ejectment—Action of by one tenant in common against co-tenant—Wbat plaintiff must prove—Code Civ. Pro., § 1515.
    Where one tenant in common sues his co-tenant to recover possession of lands then owned in common, the plaintiff besides proving his right, must prove also that the defendant actually ousted him or did some other act amounting to a total denial of his rights.
    Appeal by the plaintiffs from a judgment dismissing the complaint with costs, entered in the Westchester county clerk’s office on the report of a referee. The action was ejectment to recover possession of two-fifths of the real estate described in the complaint and alleged to have been devised for the benefit of plaintiffs, Cornelia C. Earnshaw and Emilie C. Reeve, by their father, Joseph W. Corlies. No evidence was offered by the plaintiffs except letters of administration with the will annexed of said Corlies to plaintiff, John W. S. Earnshaw, and an order appointing him trustee. The case was practically heard upon the pleadings. But the pleadings were not offered in evidence on the trial.
    
      E. R. Meade, for app’lts; W. G. Tracy, for respondent Myers; C. H. Hawley, for respondent Johnson et al.
    
   Barnard, P. J.

There is no doubt but that the defendants own two-fifths of the lands in question. The same belonged to Joseph Corlies at the time of his death in 1860. Certain lands of the deceased were devised by his will to his widow, but the remainder of his lands were devised to his five children. These lands were part of the remainder. The devise to the sons, of whom there were three, was absolute and vested at the testator’s death. The two daughters were and the plaintiffs were given life estate with power of apportionment. The executors of the will were the widow, and the three sons, and all qualified. The will gave a full power of sale as to all lands except those devised to the widow. The proof shows that the executors, the widow and two of the sons executed a deed to defendants’ predecessors in title One son was absent from the country and did not execute the deed. The same was given in 1868, and purported to convey all the testator’s interest in the land. “ And also the estate, right, title, interest, claim and demand whatsoever both in law and equity which the said testator had in his lifetime or at the time of his decease, and which the parties of the first part, or either of them, have or hath by virtue of the said last will and testament or otherwise, of, in or to the same and every part and parcel thereof with the appurtenances.” The deed also contains individual covenants by the grantor severally and not jointly,” against incumbrances, for warranty of title and for quiet enjoyment. ' Assuming, therefore, that the executors’ deed failed because one executor did not join with the others, the deed of the individuals was good, and conveyed two-fifths of the title at least. There is no claim in the answer that the defendants claim the whole title under the' deed. It demands ouster and avers that the daughter, plaintiff, had the benefit of the sales money paid for the land, and asking that an account be taken so that justice could be done. The case is one, therefore, where one tenant in common sues his co-tenant to recover possession of the lands then owned in common. The Code concisely declared the rule which has long existed. The plaintiff, besides proving his right, must prove also that the defendant actually ousted him or did some other act amounting to a total denial of his right. Code, 1515; Edwards v. Bishop, 4 N. Y., 61.

There is no proof, whatever, outside of the pleadings as to the defendants possession. The judgment should, therefore be affirmed, with costs.

Pratt and Dykman, JJ., concur.  