(78 Hun, 380.)

#### KING v. TOWNSHEND.

(Supreme Court, General Term, First Department.

May 18, 1894.)

1. Quieting Title—Complaint—Averment of Ownership.

In an action to determine claims to real estate, an allegation in the complaint that plaintiff owns the premises In fee is sufficient compliance with Code. Civ. Proc. § 1639, subd. 2, which requires an allegation that plaintiff was in possession of the property “either as sole tenant, or as joint tenant, or tenant in common with others,” since sole ownership will be implied from the allegation that plaintiff is the “owner in fee.”

2. Same—Claim of Defendant.

Under subdivision 3, which requires the complaint to allege that defendant unjustly claims an interest or estate in the land “of the characier specified in the last section” (in fee, for life or for a term of years), it is sufficient to allege that defendant unjustly claims to be the owner in fee of the land, as plaintiff will not be required to state the particulars of defendant’s adverse claim of an interest in fee.

*1823. Same—Possession by Plainttee.

An averment of the answer that plaintiff had not been in possession of the premises for a year before the commencement of the action, as required by the statute, but that the same had been, and still was, in the possession of one H., as tenant of plaintiff, is not a denial of plaintiff's possession, since possession of a tenant is the possession of the landlord.

4. Pleading—Allegation oe Conclusions.

An allegation of the complaint in an action to determine claims to real estate that defendant claims to be the owner in fee is not an allegation of conclusion either of law or fact.

Appeal from special term, New York county.

Action by Lewis C. King against John Townshend, impleaded with Mary H. Townshend. From an interlocutory judgment overruling a demurrer to the third defense in the answer of defendant John Townshend, plaintiff appeals.

Reversed.

This action was begun December 6, 1893, to determine the claims of the parties to real estate, pursuant to the fifth article of the first title of the fourteenth chapter (§§ 1638-1650) of the Code of Civil Procedure. It is alleged in the complaint that January 29,1890, William Moores conveyed the land to the plaintiff; that he owns it in fee, and has been in possession of it since the date of his deed; that the defendant unjustly claims to be the owner in fee of the same land. Por a third defense, the defendant alleged as follows: “Three. Por a third defense, this defendant denies that the premises described in the complaint at the time of the commencement of this action., and for one year and upwards next preceding, had been in the possession of the plaintiff, and this defendant alleges that, at the time of the commencement of this action, said premises were, and for more than one year next preceding the commencement of this action had been, and still are, in the possession of one John Hughes, holding the same as tenant or subtenant of plaintiff for a term which will expire on May 1, 1894.” To this defense the plaintiff demurred, on the ground that it does not state facts sufficient to constitute a defense.

Argued before VAN BRUNT, P. J., and FOLLETT and PARKER, JJ.

L. A. Gould, for appellant.

John Townshend, in pro. per.

FOLLETT, J.

The special proceedings for the determination of claims to real property authorized by title 2 of chapter 5 of the third part of volume 2 of the Revised Statutes were a substitute for the ancient mode of barring claims to real estate by fines and recoveries (1 Grab. Pr. 2d Ed. 71), authorized and regulated by chapter 58, Rev. Laws 1813, which act was repealed by section 93 of chapter 21, 2 Sess. Laws 1823, and by 2 Rev. St. 343, § 24 (McGregor v. Comstock, 17 N. Y. 162). In 1849, section 449 was added to the Code of Procedure, by which actions were authorized to compel the determination of claims to real property, pursuant to the provisions of the Revised Statutes. After the adoption of this section it was held that adverse claims to real estate might be determined by an action or by a special proceeding; that the remedies were cumulative. Burnham v. Onderdonk, 41 N. Y. 425; Fisher v. Hepburn, 48 N. Y. 41. September 2, 1880, chapter 14 of the Code of Civil Procedure took effect, the fifth article of which embraces the substantive law of the Revised Statutes, with some changes in *183respect to the determination of such claims; and, by section 1 of chapter 245, the provisions of the Revised Statutes were repealed. The substantive law and the law of procedure relating to this subject are now embraced in the fifth article of the first title of the fourteenth chapter of the Code of Civil Procedure. It should be borne in mind that this action was begun after article 5, last referred to, was amended in 1891. The substantive law, prescribing cases in which actions may be brought, is contained in section 1638, and the law regulating the procedure and the effect of judgments in such cases is embraced in sections 1639 to 1646, inclusive; but on the record the questions presented are controlled by sections 1638-1640, for so far as it appears (only the third defense being printed), the defendant has simply denied the plaintiff’s possession, not his title, and has not alleged title or possession in himself, and could not have a judgment for affirmative relief, as provided in the subsequent sections. The following are the sections referred to:

> “Sec. 163S. Where a person has been, or he and those whose estate he has, have been for one year in possession of real property, or of any undivided interest therein, claiming it in fee, or for life, or for a term of years not less than ten, he may maintain any action against any other person to compel the determination of any claim adverse to that of the plaintiff which the defendant makes to any estate in that property in fee, or for life, or for a term of years not less than ten, in possession, reversion or remainder, or to any interest in that property, including any claim in the nature of an easement therein, whether appurtenant to any other estate or lands or not, and also including any lien or incumbrance upon said property, of the amount or value of not less than two hundred and fifty dollars. But this section does not apply to a claim for dower. Sec. 1639. The complaint in such an action must set forth facts showing: (1) The plaintiff’s, right to the real property; whether his estate therein is in fee, or for life, or for a term of years not less than ten; and whether he holds it as heir, devisee or purchaser, with the source from or means by which his title immediately accrued to him. (2) That the property, at the commencement of the action was, and, for the one year next preceding, has been in his possession, or in the possession of himself and those from whom he derives his title, either as sole tenant, or as joint tenant, or tenant in common with others. (3) That the defendant unjustly claims an estate or interest or easement therein, or a lien or incumbrance thereupon of the character specified in the last section. The complaint must describe the property as prescribed in section fifteen hundred and eleven of this act. The demand for judgment may be to the effect that the defendant and every person claiming under him be barred from all claim to an estate ■ in the property described in the complaint, or from all claim to an interest or easement therein, or a lien or incumbrance thereupon, of the character specified in the last section, or it may combine two or more of said demands with other demands for appropriate relief. Sec. 1640. If the defendant, in his answer, puts in issue the matters specified in subdivision second of the last section, and succeeds upon that defense, final judgment must be rendered in his favor, dismissing the complaint, and awarding to him costs against the plaintiff.”

The defendant invokes the application of the rule that, in case the answer is demurred to, and a cause of action is not set forth in the complaint, judgment should be rendered for the defendant. People v. Booth, 32 N. Y. 397; Clark v. Poor, 73 Hun, 143, 25 N. Y. Supp. 908; Abb. Tr. Brief, § 451. Under this rule, the question first to be determined is, does the complaint state a cause of action? The land in dispute is described, and it is alleged that the plaintiff *184owns it in fee, that he acquired his title from William Moores and wife by a deed executed January 29, 1890; that when the actions was begun, and for one year next preceding, the plaintiff had been, in possession of the land, claiming it in fee. This complaint complies with the first and second subdivisions of section 1639, and it is nbt necessary, in order to state a cause of action, that the plaintiff should allege in the complaint that he is the sole owner in fee. Sole ownership is fairly implied from the allegation that he is the owner in fee. No authority is cited for the position that an allegation that the plaintiff is the owner of commercial paper sued on, that he is the owner of a chattel, or is the owner of a piece-of land, is not equivalent to an allegation that he is the sole owner of such paper, chattel, or land. For the same reason, the allegation that the plaintiff has been in possession of the land since he acquired his title is equivalent to an allegation that he has been in possession as sole tenant. The more serious question arises under the third paragraph of the complaint:

> “3. That the defendant (John Townshend) unjustly claims an estate or interest therein adverse to that of plaintiff, to wit, the adverse claim that he is seised of said premises in fee.”

Upon Austin v. Goodrich, 49 N. Y. 266, and Brown v. Teel, 59 Hun, 91, 13 N. Y. Supp. 142, it was held by the learned special term that the allegation last quoted was not a compliance with the third subdivision of section 1639, above quoted, and that it was-necessary for the plaintiff to set out the particulars of the defendant’s claim. The case first cited arose under the Revised Statutes, which, as amended by chapter 50, Laws 1848, provided:

> “Section 1. * * * He [the person instituting the proceedings] may compel a determination upon any claim which any other person may make to> any estate, in fee or for life, or for a term of years not less than, ten, in-possession, reversion or remainder, to such lands and tenements, in the manner and by the proceedings hereinafter specified. Sec. 2. He [the person instituting the proceedings] shall serve a notice * * * on such claimant, stating: * * *.” “Sec. 4. That the person to whom such notice is directed unjustly claims title to such premises.” 2 Rev. St. p. 312, §§ 1, 2, 4.

It was alleged “that the defendant unjustly claims title to-said premises.” The defendant demurred, upon the ground that the complaint did not state facts sufficient to constitute a cause of action. In discussing the question as to whether the allegation: “that the defendant unjustly claims title to said premises” was sufficient, it was stated:

> “She (plaintiff) can have a right of action against another only when he makes a claim to an estate to such lands or tenements, in fee, or for life, or for a term of years not less than ten. In stating her right of action against him, she must bring him by the averments of her complaint within some of these provisions. He must be shown by them to- make a claim to- an estate-in fee, or for life, or for a term of yeafs not less than ten, to such lands and. tenements. Failing to do this, she fails to show any right to bring him into-court to assert and make good his claim, or be forever barred. If he makes claim other than as specified in the statute, and makes no claim as therein specified, she has no right to compel him to assert it and make it good, or-be forever barred.”

*185The demurrer in that case was held good, upon the ground that the plaintiff failed to allege that the defendant claimed an estate “in fee, or for life, or for a term of years not less than ten.” It was not there held or intimated that a plaintiff is required to set out the particulars of a defendant’s claim, but the intimation is. that had the plaintiff alleged that the defendant claimed an estate in fee, for life, or for a term of years not less than ten, it would have been sufficient.

In the second case cited, an action under the Code of Civil Procedure, it was alleged that the plaintiff “was the owner in fee simple,” and that “the defendants, who are children and grandchildren of said Elisha Brown, deceased, unjustly claim an estate in fee in said premises.” All of the defendants made default, except Teel and Hunn, who separately answered, Teel denying that she had any claim or interest in the land, and Hunn interposing a general denial. On these issues the action was tried on the merits, at special term. On the trial, the plaintiff failed to show that either of the defendants had ever claimed any interest in the land. Notwithstanding, a judgment was directed against them, with costs, from which they appealed, not claiming on the appeal any interest, legal or equitable, in the land. The judgment was reversed, on the ground that the plaintiff failed to prove a cause of action, which was clearly right, and it was affirmed by the court of appeals. 128 N. Y. 678, 29 N. E. 148. Neither of these judgments-supports the contention of the defendant. It was not held in either case that the plaintiff must set forth the particulars of the defendant’s adverse claim of an interest in fee. The allegation that defendant claims to be an owner of the fee of the land is not an allegation of a conclusion, either of law or of facts, but it is an allegation of what the defendant has asserted as a fact. The plaintiff may not know- the ground of the defendant’s assertion, which may be exclusively within his knowledge. We do not think it will do to hold that in case A. is in possession of land, claiming to own it in fee simple, and B. asserts, when, where, and to whom he pleases, that he owns the land in fee, without disclosing how he owns it, that A. may not, by alleging his ownership- and B.’s claim, require the latter to abandon or defend his claim. Should the rule contended for by the defendant be adopted, would the plaintiff be required to state truly all of the particulars and grounds of the defendant’s claim, at his peril? We think that in such a case the defendant should be required to allege the grounds and particulars of his own defense, and that the burden should not be imposed on the plaintiff. Again, it should be observed that the first subdivision of section 1638 requires the plaintiff to set forth the source of his title, and quality and quantity of his estate, and whether he acquired it by descent, by devise, or by grant, but the third subdivision does not require such particularity in respect to the defendant’s claim. The requirements of the two subdivisions are quite different, and rest upon the theory that the plaintiff knows the particulars of his estate, but may not know the particulars of the defendant’s claim. The sections-*186of the Code are well pleaded. Rothschild v. Railway Co. (Sup.) 18 N. Y. Supp. 548. The complaint states a good cause of action.

The facts stated in the third division of the answer to which the demurrer is taken do not constitute a defense. The defendant alleges that John Hughes, the plaintiff’s tenant, is in possession of the premises. It is a familiar Tule that the possession of the tenant is the possession of the landlord. The defendant’s contention is that the owner of land in fee which happens to be in the possession of his tenant cannot maintain an action to determine the validity of an adverse claim to it, and that a plaintiff must be actually in the personal possession of the disputed land before he can maintain such an action. The Revised Statutes provided that a proceeding might be maintained by a person in “actual possession,” which language was incorporated in the Code of Civil Procedure, and there remained until 1891, when the word “actual” was stricken out, which was done to obviate the very objection now raised by the defendant. Under the Code as it now stands, a person in possession of land, by his tenant, may maintain an action to compel the determination of an adverse claim to it. We are asked to order a final judgment against the defendant on this appeal. This we cannot do, for the whole of his answer is not contained in the record, and he may have interposed some good defense to the action. The interlocutory judgment should be reversed, and the demurrer sustained, with costs in this court and at the special term. All concur.