
    (70 Hun, 483.)
    SAND v. CHURCH et al. SHAFER v. SAME, (two cases.)
    (Supreme Court, General Term, Third Department.
    July 8, 1893.)
    'Champerty—Conveyance op Land in Possession of Another.
    A complaint in ejectment, after setting out plaintiff’s claim of title, alleged that defendant, claiming to have some interest in the premises, by fraud and collusion with one B. recovered a judgment against B. for the possession of the premises; that a writ of possession was pretended to be issued by the sheriff, but was never executed, and possession was.not delivered to defendant under the writ; that, before the action against B. was brought, B. had conveyed his title to the land in suit to the predecessor in title of plaintiff’s grantor, in whom the title was vested at that time; that, after such judgment against B., defendant obtained possession of the premises under an agreement with a life tenant thereof. There was no evidence of any claim of a specific title in defendant adverse to that of plaintiff’s grantor. Held, that it was error to grant a nonsuit on the ground that the deed to plaintiff was champertous, (4 Rev. St. [8th Ed.J p. 2453, § 147,) as made while defendant was in possession under a claim of title adverse to plaintiff’s grantor.
    Action from circuit court, Albany county.
    Three actions by Ella D. Sand, Charles Shafer, and Edward Shafer, respectively, against Henrietta Church and Joseph Drum. From a judgment in favor of defendants' in each case, plaintiffs appeal.
    Eeversed.
    The actions were originally brought against Walter S. Church, who died December 7, 1890, leaving a last wifi and testament, which was duly admitted to probate by the surrogate of Albany county, February 5, 1891, under and by virtue of which Henrietta Church succeeded to the interest of said Walter S. Church in the premises which are the subject of this action. Henrietta Church was duly substituted as party defendant in the place and stead of Walter S. Church, deceased, by an order duly entered in Albany county clerk’s office, March 31, 1891. The pleadings in the several actions were substantially the same. The complaint in the action by Ella D. Sand is as follows:
    “The plaintiff, Ella D. Sand, for an amended complaint herein, alleges and shows the court that for her cause of action herein, that at the time and for many years prior to the death of Johannes Shafer, hereafter mentioned, said Shafer was the owner in fee and in the possession of the following described premises and real estate, to wit: All that piece or parcel of land lying and being situated in the town of Berne, Albany county, N. Y., and described as follows, to wit: On the north by lands of Ann N. Engle, Albert Deitz, and the Church lot; on the west by lands of Henry Weidman; on the south by lands of Joseph I. Shultes; and on the east by lands of Peter and John Ball,—containing one hundred and seventy-five acres of land, be the same more or less; and being the same premises owned and occupied by Johannes Shafer, and being the same premises which the said Johannes Shafer willed to Ann Eve Shafer during her lifetime, and after her decease to John W. Shafer and Adam Shafer, and being the whole of said ‘Johannes Shafer Farm,’ so-called; and, being so seised, died on or about the 1st day of November, 1853, leaving his last wifi and testament, bearing date December 8, 1848. That said will was thereafter, on or about the 12th day of December, 1853, duly admitted to probate by the surrogate of Albany county, and duly recorded in the office of the surrogate of Albany county on that day. And plaintiff further says that said Johannes Shafer, in and by his last will and testament, aforesaid, gave and devised to Ann Eve Shafer a life interest or estate in said lands and premises, and the remainder in fee to John W. Shafer and Adam M. Shafer, as by reference to said will and the record thereof will more fully and largely appear, and to which plaintiff prays leave to refer. And plaintiff further says that after the death of Johannes Shafer, and on or about the 29th day of October, 1859, the said Adam M. Shafer duly executed and delivered to Ann Eve Shafer a conveyance and deed of his interest, right and estate, claim and demand, of, in, and to said lands and premises, and the same was thereafter, and on or about the 5th day of November, 1859, duly recorded in Albany county clerk’s office in Book 159 of Deeds, page 182, and to which plaintiff prays leave to refer. And plaintiff further says that in and by virtue of said last will and testament of Johannes Shafer and said deed from Adam Shafer, Ann Eve Shafer became the lawful owner in fee of an undivided one-half of said premises, and a life estate or interest in and to tlie remaining one-half thereof. And plaintiff further shows that on the 26th day of March, 1873, Ann Eve Shafer, for a good and valuable consideration, executed and delivered to George W. Quackenbush a warranty deed of said premises, which deed was duly recorded in Albany county clerk’s office July 18, 1873, in Book 265 of Deeds, on page 274; said Ann Eve Shafer reserving for her own use and occupation during her natural life the use of the wings of the kitchen attached to the,dwelling house on said premises; also the privilege of cutting wood and using what firewood she may need from the woodland on said premises during said term, cutting decaying timber or dying at the top; also reserving from the aforesaid premises the burying ground lot situated on said premises, and the privilege of going to and from the same, and to improve and fence the same; also reserving for her own use and occupation during said term one-half of the garden on said premises. That said Ann Eve Shafer remained in possession of said premises until the time of her death, about the month of April, 1890. And plaintiff further shows the court that George W. Quackenbush, on the 5th day of May, 1875, duly executed and delivered a deed of said premises to Joseph I. Shultes; that said Joseph I. Shultes died intestate, subsequent to the date of said deed, leaving Arthur M. Shultes and Louisa M. Wright, his children and only heirs at law. And plaintiff further shows the court that on the 31st day of March, 1890, Arthur W. Shultes and Eugene Shultes, his wife, and Louisa M. Wright, duly conveyed said premises to Ella D. Sand, Charles H. Shafer, and Eawin Shafer, who are the children and only heirs at law of John W. Shafer, deceased.
    “(2) The plaintiff, further complaining, alleges and shows the court, upon information and belief, that prior to the 8th day of May, 1879, Walter S. Church, claiming to have some interest in and to said premises, by fraud and collusion with one George W. Quackenbush attempted to gain possession of said premises, and to cut off any reversionary interest which the plaintiff might have under said will, entered into an agreement with said George W. Quackenbush, by which an action in the supreme court of the state of New York was to be brought in favor of said defendant Walter S. Church and against said George W. Quackenbush, claiming that there was a large amount of rent in arrear; that said action was fraudulently commenced by the service of a summons upon said Quackenbush, and such proceedings were thereupon had that a judgment by default for the recovery of the possession of said premises, together with $32.19 costs, was fraudulently entered, and judgment fraudulently docketed in Albany county clerk’s office, on the 8th day of May, 1879; that a writ of possession was pretended to be issued by the sheriff of Albany county, September 9, 1879, and purporting to have been returned to said office June 5, 1889; that said writ of possession was never executed according to law, nor in fact, and the possession of said premises was never delivered to said Church under said writ. That at the time of the pretended service of said summons and entry of said judgment, and the pretended execution of said writ of possession, the said defendant George W. Quackenbush, in said judgment named, was not in possession of said premises, and had no right, title, or interest therein, he having, on the 5th day of May, 1875, conveyed away said premises and his interest therein to Joseph I. Shultes, as aforesaid; and plaintiff alleges that said action was brought by the defendant Church, and judgment entered therein, without the knowledge of this plaintiff, and a judgment by default obtained against said Quackenbush by fraud and collusion between said Church and Quackenbush, and to prejudice and cut off the reversionary interest of the plaintiff, and in fraud of her rights. And the plaintiff further shows the court that on or about the 10th day of March, 1881, the defendant Walter S. Church, to gain possession of said premises and the interest of Ann Eve Shafer, made and entered into the following contract or agreement, viz:
    “ T agree to pay Mrs. Ann E. Shafer one hundred and twenty-five dollars, to be paid semiannually to her during the term of her natural life. She is to have a new house built for her, suitable and proper for her to live in, wood-house and kitchen attached, have dead and decaying wood to bum from the premises, fruit to use, and garden place for planting potatoes and raising her vegetables. While she remains in the old house she is to occupy that portion now used and. occupied by her. She is not to be removed from the premises where she now residest duriiig the term of her natural life. "This is a memorandum of the facts of the agreement, and final contract is to be executed by said Church and delivered to said Mrs. Shafer. ” W. S. Church.
    “ ‘Berne, March 10, 1881.
    “ ‘In presence of E. V. Eilking.’
    “That under and by virtue of said agreement said Church entered into the possession, and has since used and enjoyed the same. That said premises are of the valúe of ten thousand dollars, and that the annual value of the use and occupation of said premises is and has been nine hundred dollars.
    “(3) And plaintiff alleges that she is the owner in fee of an undivided one-third part of said premises, and is entitled to the immediate possession thereof. That all the rent which has accrued upon said premises has been fully paid and satisfied; but, should any rent be found due and in arrear upon said premises, or any costs and charges legally incurred properly chargeable against said property, the plaintiff is willing and ready to pay the same, and to perform all the agreements which ought to be performed by the first lessee in said lease, and the plaintiff is ready and willing to pay said rent and charges.
    “(4) And plaintiff shows the court that Joseph Drum is in possession of said premises as tenant, under said defendant Church. Wherefore plaintiff asks that an account be had of the use and occupation of said premises; that the same be set off against any rent and charges which may have accrued against said premises, and that the plaintiff may have judgment for any balance which may be found due, and that he may be adjudged and decreed the owner of an undivided one-third part of said premises; that judgment entered against George W. Quackenbush, in favor of Walter S. Church, and all proceedings under it, be declared fraudulent and void, and of no binding force or effect against the rights and interest of this plaintiff in and to such premises, and the plaintiff have judgment for the recovery of the immediate possession- of said premises, and for such other and further rule, order, or relief as shall be just in the premises, with costs of this action.”
    The answer of defendant Church is as follows:
    “(1) The defendant Walter S. Church, for answer to the amended complaint herein, denies' any knowledge or information sufficient to form a belief as to the truth of the allegations set forth in all that part of the amended complaint preceding part ‘second’ thereof.
    “(2) The defendant Walter S. Church, for a further answer to the amended complaint, says that at the time of the alleged conveyance by Arthur W. Shultes and Eugene Shultes, his wife, and Louisa M. Wright, to wit, on the 31st day of March, 1890, and for a long time prior thereto and ever since, this defendant and his tenants holding under him were, and still are, in actual possession of the lands mentioned in the complaint, claiming under a title adverse to that of the grantors Shultes and Wright, and that the said conveyance to the plaintiff and others is void under the statute in such case made and provided.
    “(3) The said defendant, further answering said amended complaint, as to the allegations contained in part ‘second’ thereof denies that this defendant, by fraud and collusion with one George W. Quackenbush, or with any one, attempted to gain possession of said premises, or entered into an agreement with said George W. Quackenbush, or any one, by which an action was brought in the supreme court by said Church against said George W. Quackenbush, or that this defendant fraudulently commenced an action against said George W. Quackenbush, or that a judgment was fraudulently obtained and fraudulently docketed in the Albany county clerk’s office by said defendant Church against said George W. Quackenbush for the recovery of the possession of said premises, or that said writ of possession was never executed according to law nor in fact, and the possession of said premises was never delivered to said Church under said writ, or that at the time of the alleged service of said summons and entry of said judgment and the alleged execution of said writ of possession the said defendant George W. Quackenbush was not in possession of said premises.
    “(4) The said defendant, further answering said amended complaint, denies any knowledge or information, sufficient to form a belief, as to the truth of the allegation that said George W. Quackenbush ever conveyed away said' premises to Joseph I. Shultes.
    “(5) The said defendant, further answering said amended complaint, denies that a judgment by default was obtained against said Quackenbush by fraud! and collusion between said Church and Quackenbush, so as to cut off the-reverting interest of this plaintiff and in fraud of her rights, or that the defendant Walter S. Church, to gain possession of said premises and the interest of Ann Eve Shafer therein, made and entered into the contract or agreement as set forth in said amended complaint, or that under and by virtue of said agreement said Church entered in the possession of said premises, or that the annual value of the use and occupation of said premises is and has been nine hundred dollars.
    “(0) The said defendant Church, further answering said amended complaint, denies each and every allegation contained in part ‘third’ thereof.
    “(7) The said defendant Church admits that the defendant Joseph Drum is-in possession of said premises as a tenant under him.
    “(8) The said defendant Walter S. Church, further answering said amended complaint, alleges that the proceedings mentioned in part second of said complaint were had, and judgment obtained, and possession of the premises-taken thereunder by this defendant and under other legal proceedings, without fraud or collusion, and duly, lawfully, and in good faith, and that this-plaintiff is now the owner in fee of said premises, and that the defendant Drum is occupying said premises as tenant under him. Wherefore, the said defendant Walter S. Church demands that the complaint be dismissed, with, costs.”
    Argued before MAYHAM, P. J., and PUTNAM, J.
    W. & C. W. Youmans, (W. Youmans, of counsel,) for appellants-
    Marcus T. Hun, for respondent Henrietta Church.
    William S. Dyer, for respondent Joseph Drum.
   PUTNAM, J.

These are actions in ejectment, each brought to recover -an undivided one-third part of the premises described ini the complaint. On the trial, plaintiffs established a leasehold title to said lands, and, it being admitted that defendants were in possession thereof, rested. A motion was then made by defendants for a nonsuit, which motion the court granted, plaintiffs, duly excepting. Plaintiffs also asked to go to the jury on the questions of fact involved in the case. This motion was denied,, and plaintiffs excepted.

One of the grounds urged by the defendants on the motion for a nonsuit and upon this appeal to sustain the judgment is that the conveyance from Arthur W. Shultes and others to plaintiffs, on March 9,1890, was void for champerty, a# the property was then in possession of defendants, who claimed to hold it under a title-adverse to that of said grantors. After a careful examination of' the evidence, I am unable to believe that this position is well taken. The evidence does not show that Church claimed possession under any specific title. The complaint alleges that when the action against Quackenbush was commenced the latter had: no title or interest in the demised premises, and was not in possession thereof, and that the writ of possession issued under the-judgment in said action was never executed according to law, nor in fact, and the possession of said premises was never delivered to said Church under said writ. The complaint also alleges that Church entered into possession of said premises by virtue of an agreement with Ann E. Shafer, set out in the complaint. There is no allegation that Church was in possession of said premises under the judgment against Quackenbush when the premises were conveyed to plaintiffs. Nor does the evidence show any claim of a specific title adverse to that of plaintiffs’ grantors by Church. The complaint does not aver, nor does it appear, what title, if any, Church claimed. Hence the deed to plaintiffs was not void under the statute of champerty. See Crary v. Goodman, 22 N. Y. 170; Dawley v. Brown, 79 N. Y. 396.

The defendants also urge that the plaintiffs in their complaints allege a title to the premises in controversy in fee simple, and the proof shows their interest, if any, is a leasehold title. The complaints are somewhat indefinite and obscure, and, had a motion been made by defendants for an order requiring them to be made more certain and definite, I have no doubt such a motion would have prevailed; but no such motion was made, and defendants entered upon the trial of the cases with the complaints as they are. I think it appears from the whole pleadings that the plaintiffs intended to allege a leasehold title. For instance, in stating the agreement between Church and Quackenbush, they alleged that it was agreed that an action should be commenced on a •claim that there was a large amount of rent in arrear. Again, they state in the complaints that all the rent which has accrued upon said premises has been fully paid and satisfied; that, should rent be found due and in arrear, plaintiffs are ready to pay the .same, and to perform all the agreements which ought to be performed by the first lessee in said lease; and plaintiffs are ready and willing to pay said rent and charges. Plaintiffs, in their complaints, also ask that an accounting be had of the use and occupation of said premises, and that the same be set off against any rent and charges which may have accrued. I think, although defectively stated, the intent of the pleader in the complaints to allege a leasehold title in plaintiffs is apparent. The defendants having entered upon the trial of the cases with the complaints as they are, *with an indefinite, contradictory, and obscure statement of title, I do not think that a nonsuit should have been granted because it appeared upon the trial that plaintiffs’ title was leasehold. Had it alleged, however, an absolute fee in the plaintiffs, and the proof had shown merely a leasehold title, I doubt whether the variance could be deemed material. In either case the plaintiffs were entitled to a judgment for the possession of the premises. Whether owners in fee or lessees, plaintiffs could recover the premises in suit. Such a variance should not be deemed material. Sections 539, 540, Code Civil Proc. The complaint, if necessary, could be amended on appeal. Smith v. Long, 12 Abb. N. C. 120.

Defendants also claim that the judgment of nonsuit was properly rendered because, the complaint sounded .in tort, and a recovery could not be had thereunder in ejectment. The complaint, however, alleges all the facts necessary to be stated in an action of ejectment,—that the plaintiffs are the owners of the premises in question, and entitled to the immediate possession thereof, and the defendants are in occupation. I incline to regard these cases more like those considered in Graves v. Waite, 59 N. Y. 156; Bell v. Merrifield, 109 N. Y. 206, 16 N. E. Rep. 55; Ross v. Ferry, 63 N. Y. 614; and kindred cases,—than like Barnes v. Quigley, 59 N. Y. 265; Degraw v. Elmore, 50 N. Y. 1; Place v. Minster, 65 N. Y. 101. In the latter case the complaint alleged fraud, and the following language is used in the opinion:

“It is, of course, necessary to prove fraud, aud the plaintiff could not recover on entirely different grounds unless there were additional averments in the bill or complaint upon which such recovery can be had.”

In these cases there were allegations of fraud, but outside of those were all the allegations necessary to be contained in an action of ejectment. In Ross v. Ferry, supra, it was held “that the cause of action was not necessarily ex delicto because of the averments of false representations; that they were not the controlling facts, but the gravamen of the action was ex contractu.” Conaughty v. Nichols, 42 N. Y. 83; Ledwick v. McKim, 53 N. Y. 308; Graves v. Waite, 59 N. Y. 156. In the cases under consideration the actions were brought to recover the possession of one-third of the premises described in the complaint. That the plaintiffs are the owners of the premises, and entitled to the immediate possession thereof, and that the defendants are in occupation thereof, is stated in the. complaints. In addition to the allegations stating the cause of action, plaintiffs, in anticipation of defendant’s defense, have inserted an averment as to an alleged fraudulent judgment obtained by Church against Quackenbush. The complaints allege, however, that when the action against Quackenbush was commenced the latter was not in possession of the demised premises, and had conveyed his interest therein to Joseph I. Shultes, and had no interest whatever in said lot; and also possession of the premises in question was never delivered to said Church under said judgment. Of course, the said allegations in the complaints show that the plaintiff’s rights are not at all affected by the judgment or proceedings in the action of Church against Quackenbush. The object of the pleader seems to be to set out in the complaint a cause of action in ejectment, and, anticipating that defendants would interpose as a defense the above-mentioned judgment and proceedings thereunder, to assert the facts showing that said judgment and the proceedings thereunder, as to plaintiffs, were of no effect. I do not think that the allegations contained in the complaints in regard to the said Quackenbush judgment can properly be deemed a part of the cause of action. They are in fact irrelevant, and might have been stricken out on motion. The object of the action is to recover the possession of the premises described in the complaint. If the complaints could be deemed to assert two causes of action,—one in ejectment, and one to set aside the fraudulent judgment,—a recovery could be properly had in the former, although the latter cause of action remained unproved. The plaintiffs, as above stated, when they rested, had shown title to the premises in suit, and that defendants were in occupation thereof. If, in fact, Church, as owner of the landlord’s interest in the lease, re-entered for the nonpayment of rent, and Quackenbush was in possession when the action was commenced and when the writ of possession was issued, and Church was put in possession under the judgment, such a state of facts would constitute a defense. But those facts did not appear upon the trial. I think, on the facts appearing, plaintiffs were entitled to a judgment, and hence that the judgment should be reversed, and a new trial granted; costs to abide the event. All concur. 
      
       4 Rev. St. (8th Ed.) p. 2453, § 147, provides that “every grant of land shall be absolutely void if at the time of the delivery thereof such land shall be in actual possession-, of a person claiming under a title adverse to that of the grantor. ”
     