#### Gertrude Ray Hamilton et al., Plaintiffs, *v.*Alexander S. Hamilton et al., Defendants.

(Supreme Court, New York Special Term,

December, 1912.)

Real property — action to determine title to — deeds of — Code Civ. Pro. §§ 1638, 1639 — conveyance between tenants in common — portion not covered by deed.

Where deeds of conveyance between tenants in common of certain land leave the record title to a part thereof unconveyed, the heirs and devisees of one of the tenants in common may bring an action, under section 1639 of the Code of Civil Procedure, against the heirs, devisees and executors of the other tenant in common, to compel the determination of plaintiff’s claim which was not conveyed.

A complaint which alleges ownership in fee- to the part not conveyed, the facts out of which such ownership arises, that plaintiffs have been in possession one year and that defendants unjustly claim, or that it appears from public records that they might so claim, a title adverse to plaintiffs, is sufficient to satisfy all the requirements of said section 1639; and whether there are other allegations, or the prayer for relief is inappropriate, is immaterial.

Where plaintiffs’ devisor immediately after the execution of the deed to him went into possession of the property, erected two houses thereon and he or his devisees continued in open and notorious possession thereof, the same being substantially enclosed over thirty years, collected the rents and profits to the exclusion of the former cotenant, his heirs and devisees, and, in an application for a building permit made by plaintiffs’ devisor shortly after the deed to him, he described himself as the sole owner of the premises in suit, possession sufficient to maintain the action was shown, regardless of whether there was a mistake in the deed; and in the absence of evidence on the part of defendants, one of whom was an infant, plaintiffs were entitled to the relief asked.

Action by plaintiffs to compel the determination of a claim to real property under §§ 1638, 1639 of the Code of Oivil Procedure.

Edward R. Vollmer (John O’Connell, of counsel), for plaintiffs.

John 0. Ten Eyck, for guardian ad litem.

Frederick E. Barnard, for executors of estate of Schuyler Hamilton.

*558Gavegan, J.

This action is brought by the plaintiffs as heirs and devisees of Robert Ray Hamilton against defendants as heirs, devisees and executors of the estate of Schuyler Hamilton to compel the determination of a claim to real property under sections 1638 and 1639 of the Code of Civil Procedure, and arose out of the following undisputed facts: Robert Ray Hamilton and Schuyler Hamilton, his brother, prior to 1881 were the owners of a large number of parcels of real property in the city of Hew York as tenants in common, including among other parcels certain vacant land on the northerly side of Twenty-eighth street, beginning 125 feet east of Hinth avenue, and certain other vacant lots on the southerly side of Twenty-ninth street, east of Hinth avenue. By deed dated the 16th day of May, 1881, Robert Ray Hamilton conveyed to his brother Schuyler 66 feet 8 inches on the northerly side of Twenty-eighth street, which included a plot running from a point 158 feet'4 inches east of Hinth avenue to a point 225 feet east of Hinth avenue (the latter being the point of beginning), and at the same time Schuyler Hamilton, Jr., conveyed to his brother 50 feet on the southerly side of Twenty-ninth street and 8 feet 4 inches on the northerly side of Twenty-eighth street, running easterly from a point 150 feet easterly. from Hinth avenue to the westerly line of land conveyed to Schuyler Hamilton. This left the record title to 25 feet on the northerly side of Twenty-eighth street, beginning at a point 125 feet east of Hinth avenue and running 25 feet easterly therefrom, unconveyed. The complaint alleges ownership in fee, the facts out of which such ownership arises, that plaintiffs have been in possession one year, and that defendants unjustly claim, or it appears from the public records that the defendants might unjustly claim, a title adverse to the plaintiffs. These allegations are sufficient to satisfy all the requirements of section 1639 of the Code, and it is immaterial whether other allegations are set forth or whether the prayer for relief is inappropriate. Norris v. Hoffman, 133 App. Div. 596; aff’d, 197 N. Y. 578; Doscher v. Wycoff, 132 App. Div. 139. Defendants’ motion to dismiss the complaint is, therefore, denied. "Robert Ray Hamilton, im*559mediately after the execution of the aforesaid deed, went into possession of the property in dispute, .erected two houses, thereon, and he or his devisees have ever since continued in notorious possession thereof for a period of over thirty years. The testimony shows that the property was inclosed by a substantial inclosure. Robert Ray Hamilton and his heirs and devisees collected the rents and profits to the exclusion of Schuyler Hamilton, his. heirs and devisees, and in an application for a building permit made shortly after the deed was given Robert Ray Hamilton described himself as the sole owner of the premises in question. It is clear, therefore, that plaintiffs have made out their ownership of the property, regardless of whether there was a mistake in the deed, and such possession is sufficient to maintain this action. King v. Townshend, 78 Hun, 380; Baker v. Oakwood, 123 N. Y. 16. Neither is it material that one of the defendants is an infant. Code Civ. Pro., § 1686. The testimony also shows that Schuyler Hamilton and Robert Ray Hamilton entered into a party wall agreement before the houses were erected thereon, from which it clearly appears that it was the intention of Schuyler Hamilton to convey to Robert Ray Hamilton the twenty-five feet in dispute; also that Schuyler Hamilton, in filing a schedule in bankruptcy,, expressly stated that he owned no real property. By these facts, taken in conjunction with the facts that Robert Ray Hamilton acted on the assumption that he was the true owner and expended money, as stated before, without any objection from Schuyler Hamilton or any of his privies, but rather with their acquiescence, the defendants are estopped, after the great lapse of time, from asserting any title adverse to Robert Ray Hamilton or to these plaintiffs. Brown v. Bowen, 30 N. Y. 519, 541; Reeves Real Prop., § 1013. The plaintiffs have proved *prima facie*every element necessary to maintain this action and, in the absence of any evidence on the part of defendants, they are entitled to the relief asked. Hill v. Mowbray, 146 App. Div. 507. Judgment for plaintiffs.

Judgment for plaintiffs.