
    John Townshend, App’lt, v. Caroline A. Bogert, Resp’t.
    
    
      (Court of Appeals,
    
    
      Filed May 5, 1891.)
    
    1. Partition—Complaint.
    A complaint in partition -which, after averring that the property is of such character and so situated as to make an actual partition impossible, except with grave injury to the interests of the owners, and, therefore, seeks a sale and division of the proceeds, alleges that certain parties, naming them, ‘ ‘ claim some right, title or interest in said premises, the exact nature of which is unknown to the plaintiff, and which is a cloud upon the title to said premises,” is not demurrable by said parties defendant, on the ground that it states no cause of action against them.
    2. Same—Parties.
    All persons who either are or claim to be interested in the premises are affected by a demand for a sale and a division of the proceeds, and the cause of action pleaded affects or concerns them and so becomes a good cause of action for a partition as against them.
    Appeal from judgment of the New York superior court, general term, -reversing. order and judgment overruling demurrer to complaint and sustaining demurrer.
    
      John Townshend, for app’lt; John S. Davenport, for resp’t.
    
      
       Reversing 35 N. Y. State Rep., 76.
    
   Finch, J.

We are of opinion that the general term erroneously sustained the demurrer interposed to the plaintiff’s complaint. That pleading, it is conceded, stated a good cause of action for a partition as against the defendants who held undivided interests in the lands as tenants in common, and none of whom object to its sufficiency. It avers that the property is of such character and so situated as to make an actual partition impossible, except with grave injury to the interests of the owners, and, therefore, seeks a sale and division of the proceeds. With 'that relief in view, it further alleges that other parties, naming them, and being those who now demur, “ claim some right, title or interest in said premises, the exact nature of which is unknown to the plaintiff, and which is a cloud upon the title to said premises,” and asks that they be adjudged to have no interest in the property.

The demurrants interpose two objections: one that the complaint states no cause of action against them, and the other that a cause of action to determine a claim against real estate is improperly united with one in partition. The demurrants themselves demonstrate that there is no force in the second objection, for they show satisfactorily that none of the conditions made necessary by the Code for the maintenance of such an action have been heeded, and that neither such cause of action nor one to remove a cloud are stated in the complaint We agree with them that neither in purpose nor result were any such causes of action pleaded, and that the complaint states alone a cause of action in partition.

The question, therefore, is whether upon the allegations of the complaint the 'right to a partition of the property can be said to affect the defendants who demur. It seems to me that it can. Prima facie, and in the absence of a contrary explanation, all persons who either are or claim, to be interested in the premises are affected by a demand for a sale and a division of the proceeds, and the cause of action pleaded affects or concerns them and so becomes a good cause of action for a partition as against them. That the complaint does not show what their interest is the plaintiffs excuse by their ignorance of the nature of the claim, and that is a fault which the defendants can easily repair. That the claim of an interest in the premises may be false or pretended or unfounded we are not to presume in order to sustain the demurrer. It is true that the interest claimed may prove to be of such a character as to be totally unaffected by tire partition sought. If that be so, it should be asserted by answer. The presumption raised by the allegations of the complaint is to the contrary, for they are that the claim is of an interest or right in the property to be sold and such that it serves to cloud the title. Presumably that is a claim of right which the' partition will affect, and the parties who have made such claim and by the demurrer admit that they have, must be assumed to have done so in good faith, and not falsely or fraudulently.

The rules of pleading in equity, while the same in form with those in actions at law, are nevertheless broader and more elastic by reason of the inherent character of the relief which may be sought and given. It has always been held as a general rule in equity that all persons materially interested, either legally or beneficially, in the subject matter of a suit are to be-made parties to it so that there may be a complete decree which shall bind them all. Caldwell v. Taggart, 4 Peters, 190.

In carrying out that rule it sometimes happens that a plaintiff knows the fact that a third person claims an interest in the subject matter of the action, but does not know the nature, extent or merits of the claim, which cannot nevertheless be entirely ignored without peril to the completeness of the remedy sought. In such an emergency the facts may be stated, the claimant be called in as a party, and required to disclose his alleged interest. While bills of discovery are abolished, yet in such a case as we have described a discovery of the defendants' claim is incidental to the relief sought and essential to its completeness. Indeed, it has been said that every bill for relief is in reality a bill of discovery, since it asks from the defendant an answer as to all the matters charged in the bill. Story’s Eq. Pleading, § 311. The Revised Statutes acted upon these principles in framing the specific rules applicable to actions of partition. 2 R. S., part 3, chap. 5, tit. 3, § 5.

The petition was required to set forth the rights and titles of all persons interested “so far as the same are known to the petitioner,” and the rule to appear and answer required the defendants interested, whether their interest was known or unknown, “to show title to the proportions which they may claim ” in the premises. Section 13.

While the Code has changed the forms of pleading it has not destroyed their essential characteristics except in some minor degree. In providing for actions of partition, § 1542 was ostensibly founded 5 of the Revised Statutes, and like that section requires the rights of the parties to be stated “so far as they are known to the plaintiffs.” So far as they are not known such interest can only be described as “a claim,” for it will not do to say that the plaintiff must admit the validity of an asserted interest the nature of which he does not know.

This complaint, therefore, alleged all that it could to show why the demurrants were made parties, and how the cause of action concerned them. The relief of a' sale could only be complete and effective by the ability to give a clear title. Bogardus v. Parker, 7 How. Pr., 305. That result could only be reached by bringing the claimants into court and calling upon them to disclose their interest or disclaim its existence, and so the allegations of the complaint were sufficient prima facie to extend the one cause of action to the demurrants and bring them within its influence. They are either so situated as to be affected by the decree or not affected by it. Presumably from the averments of the complaint they will be affected by it. If, however, they insist that their interest may be of such a ^character that it will not be affected by a possible sale of the property, or that it cannot or ought not to be tried in the suit, it is enough to say that the plaintiff cannot negative in his complaint a character of their claim of which he asserts his ignorance.

If either of those conditions exist the remedy is not by a demurrer. If the actual partition or sale will not affect or disturb the rights of the party he may safely disregard the action entirely since no personal judgment is sought against anybody; or he may answer showing that his presence is unessential and ask to have the complaint dismissed as to him. If his interest is of a nature not subject to a trial in the partition suit he may pléad the facts in his answer and again seek a dismissal of the complaint as against himself. And so his rights may be perfectly preserved without leaving the plaintiff to blunder in the dark to an imperfect remedy.

It may be that the complaint asks some relief which cannot be granted, but that does not make the complaint demurrable.

The judgment of the general term should be reversed, and that of the special term affirmed, with leave to the defendants to answer upon payment of costs from the interposition of the demurrer and within twenty days after notice of the entry of this judgment upon filing the remittitur.

All concur.  