
    Lucy Wainman, Resp’t, v. Isaac Hampton, Impleaded with others, App’lts.
    
    
      (Court of Appeals,
    
    
      Filed October 2, 1888.)
    
    1. Partition—What sufficient to maintain action—Complaint—Sufficiency of.
    A constructive possession of land, such as the law draws to the title, is .sufficient for the maintenance of an action of partition. An allegation in the complaint that the ancestor and each of the parties owned in fee, is a sufficient averment to sustain the action.
    2. Same—Pleadings—When questions of title not involved.
    A motion to dismiss the complaint on the ground that under the pleadings questions of title are involved which cannot be tried in an action of partition, will be denied where the evidence does not sustain the position assumed. The answer of plaintiff does not deny plaintiff’s title as one of the heirs of the common ancestor; it only sets up an alleged executory agreement for the purchase by defendant of plaint ff’s interest. Held, that those allegations formed an issue of equitable cognizance to be tried by the court and not by a jury, and that the issue was. properly tried in this action.
    3. Same—Answer—Allegation of—Oral agreement to sell—When AGREEMENT VOID UNDER STATUTE OF FRAUD.
    Where it was alleged in the answer of defendant that an oral agreement had been made by the plaintiff with the defendant for the sale to him of plaintiff’s share in the land at a certain price, and that relying upon the agreement he had made improvements on the property, and that by virtue of the agreement he was entitled to a decree for specific performance and a conveyance of the plaintiff’s interest to him, it was Iteld, that such an agreement is void under the statute of frauds, as there was no finding that there was any part performance of the agreement, and defendant did not come into possession of the land under the agreement, but that his possession was entirely referable to his right as tenant in common, and whatever he did was done under his right as such tenant in common.
    4. Same—When tenants in common not entitled to be allowed for IMPROVEMENTS.
    Such a tenant in common is not entitled to be allowed for improvements-made upon the lands. It is a fair inference that the rents and profits of the lands received by him were substantially equal in value to the value of the improvements made. And this inference is strengthened by the defendant’s failure to make a demand in his answer for an account to -be taken of such improvements or to claim any allowance therefor.
    4. Same—When requests to find upon questions of fact, too late— Code Civil Pro., § 1023.
    Requests to the trial judge to find, under the Code, § 1023, upon questions of fact are too late after decision of the cause upon settlement of the case.
    
      Appeal from the judgment of the general term of the supreme court, fifth department, affirming a judgment of the trial court awarding partition of lands in Livingston county, described in the complaint.
    The nature of the action and the material facts are stated in the opinion.
    
      A. J. Abbott, for app’lts; James Wood, for resp’t.
    
      
       Affirming 34 Hun, 623 mem.
      
    
   Earl, J.

This is an action for the partition of certain lands situated in Livingston county, and it was commenced and tried prior to September 1, 1880, when the second part of the Code of Civil Pro. concerning actions for partition took effect. Hence it is governed by the provisions of the Revised Statutes relating to the partition of lands.

The complaint alleged that John Hampton being the owner in fee of the lands described, died intestate in April, 1877, leaving no widow or issue and that the lands descended to the persons mentioned in the complaint as his heirs and were at the commencement of the action owned in fee by the parties thereto in the proportions mentioned, the interest of the plaintiff being one seventy-second part thereto. The defendant Hampton in his answer denied that the plaintiff at the time of the commencement of the action had the undivided estate in the lands alleged or that she was in possession or entitled to the possession of the same, and he alleged that after the decease of John Hampton, in February, 1878, he entered into an agreement with the plaintiff whereby she agreed to sell her interest to him for $166.66, which he agreed to pay; that such agreement was on condition ■ that her brothers and sisters should sell their shares for the same price; that at the time of making the agreement he was desirous of making permanent and valuable improvements upon the lands and so notified the plaintiff and that as part of the agreement it was agreed that he should and would go on and make such improvements; that he did at different times procure from her brothers and sisters severally agreements whereby they agreed to sell to him their several shares each for $166.66 or thereabouts, and that all of them had conveyed their interests to him, except her sister Alice Timothy; that relying upon. such agreement he went into possession of the lands and of her interest therein and put extensive, valuable and permanent improvements thereon; that since the agreement he has been in the exclusive possession of the lands and has claimed to be the owner thereof and of her interests therein and has paid all the taxes on the lands with her knowledge; that after the agreement, he through his agent tendered to her the sum of $166.66, and requested a conveyance from her which she refused; and he alleged that he was ready and willing to perform and offered to perform the agreement on his part, and he prayed judgment upon the agreement alleged, as a counterclaim, that the plaintiff be compelled to convey her interest to him, and that he recover costs against her.

The plaintiff replied, denying all the allegations of the counter-claim and alleging that the defendant had had the use, benefit, rents and profits of the lands; that if he had made any improvements upon the lands, they were temporary and for his own use, and made with the avails of the rents and profits of the land, and asking that the avails, rents and profits be set off against any amount that might be found due the defendant for the alleged improvements.

The action was brought to trial at a special term, and judgment ordering a partition of the lands was granted and entered, and partition has been made by commissioners 0 appointed for the purpose.

We are of opinion that no errors prejudicial to the defendant were committed in the court below. Most of those alleged are technical and do not need extended consideration.

First. At the commencement of the trial, defendant’s counsel moved to dismiss the complaint on the ground that there was no allegation therein that either of the parties, or their ancestors, had ever been in possession of the lands. A constructive possession such as the law draws to the •title is sufficient for the maintenance of the action. It is alleged that the ancestor and each of the parties owned in fee, and that is all that is required. 3 R. S. (6th ed), 584, §§ 8, 9; Bradshaw v. Callaghan, 8 Johns., 558; Jenkins v. Van Schaack, 3 Paige, 242; Beebee v. Griffing, 14 N. Y., 235; Florence v. Hopkins, 46 N. Y., 182.

He also moved to dismiss the complaint on the ground that under the pleadings questions of title were involved which could not be tried in the action. There was no denial in the answer of plaintiff’s title in the lands as one of the heirs of the common ancestor. The only allegations affecting her title were those in reference to the executory agreement for the purchase by the defendant of her interest, and those allegations formed an issue of equitable cognizance to be tried by the court and not by a jury, and .that issue was properly tried in this action.

Second. There is no allegation in the answer that the defendant was in the possession of the lands adversely to the plaintiff or that he had ousted her, and there was no proof of adverse possession or of ouster. The proof tended to show that the defendant took possession of the lands after the death of John Hampton, either as his ad- ' ministrator or as one of the tenants in common.

The proof does not show that prior to the commencement • of the action he was in possession of the lands or of her interest therein under his agreement with her. His possession must be referred to his right as tenant in common, and it was not for an instant hostile to her in such a sense that without more it could, if continued, create in him a title by adverse possession. Hence such possession as he had did not stand in the way of the maintenance of this action.

Third. The only real defense attempted on the trial was that alleged in the counterclaim set up in the defendant’s answer, to wit: that he was by virtue of the agreement alleged entitled to a conveyance of plaintiff’s interest in the lands.

The trial court did not find that there was any definite agreement. The evidence shows quite clearly that there was not. There were some oral negotiations during the-year 1877 between the plaintiff and the defendant for a purchase by him of her interest in the real and personal estate of John Hampton', deceased, for the sum of $200, to be paid January 1, 1878. The evidence tends to show that the plaintiff agreed to sell to the defendant upon condition that all the other heirs would sell upon the same terms. Nothing was paid upon that agreement, and the condition was never performed. At the time of the commencement of this action in December, 1878, the other heirs had not all sold their interests to the defendant, and one of them, a sister of plaintiff, refused to sell to him. The defendant did not perform and was not ready to perform at the time' mentioned.

If a definite, final and complete oral agreement was made, it was void under the statute of frauds. There was no finding that there was any part performance of the agreement. He did not take possession of the lands under the agreement. Any possession he had could be referred and must be referred to his right as a tenant in common. There is no finding and no certain proof that he did anything in reliance upon the agreement. Whatever he did could be referred to his right and possession as a tenant in common, and hence there was nothing to take the case out of the statute of frauds. 1

But the correspondence between the parties subsequently to the oral negotiations, shows quite clearly that the defendant, at least, understood that no definite agreement be-, tween the parties had been concluded. On the 20th of, October, 1877, he wrote her a letter in which - he spoke of a settlement he was making with the heirs of John Hampton, j of using money to pay the heirs for their shares and of the necessity of a speedy settlement, and in which he said: “As I will have no control of the real estate after his contract expires, it becomes necessary to have some settlement, and I shall call for a partition sale this fall (unless otherwise settled) so as to have it completed as soon as possible and save confusion. Please indicate your wishes by letter soon, and consult other children if you can. Understand I will pay each of you $200, the first of January next. You can all see how necessary it is to have something done to save confusion. I would like a decision before first of next month.” On the 20 th day of November, 1877, he again wrote her a letter, in which he said: “By what Isaac (defendant’s son) says, I see no prospect of an early settlement with the Smith girls (of whom plaintiff was one) for their interest in John Hampton’s estate. He says you intimate that it may be put in court before I do it. Now I am perfectly willing that any one of you do so instead of myself, and will give you until December 1st, to make up your minds. He says you think you have some one who will bid well up on the property. If so, I see no use of putting it in the court to give any niece a chance, for I own four-fifths of the whole and am very anxious to sell, and will do so if I can get my money back with pay for time and expenses. This I will get if it goes into court. But it seems unnecessary, so long as I am anxious to sell, and any of you that wish can have all the speculation there is in it. If you will lift it or find any one to do so, I would like my money very much. It seems now that it is so nearly settled it might be finished without litigation; but I want you all to make your own choice, with the fullest advantage of your own rights. But it must and shall be settled, and I shall take steps to do so if nothing else is done by first of next month. I so notified Polly (plaintiff’s sister), yesterday.”

He wrote to her another letter, February 22, 1878, in which he said: “If you wish to take your share of land in the John Hampton estate, it would be advisable to have it set off before the first of April, or pretty soon before it is arranged for another year. Your share will be one seventy-second of 535 acres as per map, or 532 by his deeds. You could have an average, and I presume we could agree on division, as there is now only you, Olive and Ada to settle with, except minor heirs. If not done soon it will not be convenient to do it until another year.” Again, September 16, 1878, only about two months and a half before the commencement of this action, he wrote her as follows: “ I have heard nothing from you since I saw you, so I am undecided as to whether you want me to purchase your interest in John’s estate. I now expect to thresh next week and shall sell grain soon, and could then pay you" as well as any time before another fall. So please write me immediately what you desire, for there will be enough standing ready to to take the money, and if I pay it all out it is not likely I shall want to buy or pay before another fall. Let me know immediately, and if you conclude to sell I will buy and pay before you sign the papers.”

These letters clearly indicate that when they were written the defendant did not understand that any definite, binding agreement had been made by the plaintiff to convey to him her interest in the land. Taking all the letters and all the oral evidence into consideration, the most that can be said is that there was an agreement on her part to sell upon a condition which was never performed, and the court did not err in refusing to compel specific performance of the agreement.

Fourth. There was no error in refusing to allow the defendant for improvements made upon the lands. He did not in his answer demand that any account be taken of such improvements or that he have any allowance therefor. Nor did he upon the trial request that such an account be taken or allowance made. It is a fair inference from the evidence that the rents and profits of the lands received by him were substantially equal in value to the value of the improvements made thereon by him.

Fifth. Subsequent to the submission and decision of the cause upon the settlement of the case, the counsel for the defendant produced to the trial judge certain requests to find upon questions of fact, which he refused to find. The requests were presented too late, and for that reason alone the judge could properly refuse to find the facts requested. Code, § 1023. But so far as they were material, the evidence justified the refusal to find the facts.

We have given careful consideration to the other points argued on behalf of the defendant, and believe they require no particular consideration. They point out no error of which the defendant can justly complain.

The judgment should be affirmed with costs.

All concur.  