#### Catharine E. Sheridan, Suing in the Name of Emily Adams and Claudina Post, Her Grantors, Appellant, *v.*Charles Cardwell, Appellant.

Second Department,

June 29, 1911.

Real property — action by grantee in name of grantor — subsequent deed by grantors to defendant — fraud;-

Where in an action to recover possession of real property, defendant alleges that he was in actual possession of the land, claiming under a title adverse to that of plaintiff’s grantors when they made the conveyance to her, and also claims title under a deed received after the action was begun from plaintiff’s grantors to himself, he is estopped from asserting that plaintiff cannot maintain the action in the name of- her grantors. , 5

A deed given while another is in possession of the property claiming under an adverse title, although' void as against the person in possession, is good as between the parties to the deed. '

A second deed given by the grantors to the owner in possession after suit had been brought by the first grantee; is effective against the earlier deed in the absence of fraud.

But it is error for the court on the trial to exclude evidence that the deed from the plaintiff’s grantors to defendant was procured by fraud.

Btjrr, J., dissented. ■

Cross-appeals by the plaintiff, Catharine E. Sheridan,, suing, etc., and the defendant, Charles Cardwell, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Queens on-the 17 th day of March, 1910. .

A reargument was ordered in January, 1911. (See; 142 App. Div. 947.) ,:

*Edward R. Clark [Stephén H. Voris*with him on the brief], for the plaintiff.

*Robert B. Honeyman,*for the defendant.

Thomas, J.:

The reargument was granted on account of a suggested failure on the part of the court to observe that there was an ■ admission that Cogswell’s father was in actual possession at *610the time of the delivery of his deed to Husted, plaintiff’s father. Mr. Justice High, in his opinión upon the first presentation of the appeal, concluded that plaintiff’s motion for the direction of a verdict was properly denied, for these reasons: (1) That plaintiff proved neither seizin nor possession within twenty years in herself or either of her predecessors in title, as required by section 365 of the Code of Civil Procedure; (2) that the action could not he maintained by Sheridan. suing in the names of Adams and Post, her grantors, as there was failure to prove that defendant was claiming under a title adverse to .that of Adams and Post when they conveyed to Sheridan; (3) that there was evidence that defendant’s right of possession rested on tax leases other than the two proved illegal. (141 App. Div. 854.) It clearly appears that Canning, defendant’s predecessor, had such title as was carried to him by tax leases, Exhibits D and P, and that he' assigned them to defendant by instruments E and G-. In his testimony he did speak of other leases, as he well might, as besides the two lots in question he had ten others similarly acquired. But it is obvious that he claimed under the two that he sold the defendant, and the answer sets up two leases and no more. While the defendant plead these leases, he also alleged that he was in actual adverse possession of the premises when Adams and .Post conveyed to Sheridan, and that the deed was void, and this, also, is made a ground of nonsuit. In the face of this .answer and such motion, defendant asserts that the action may not be maintained in the name of the grantors, and he emphasizes his inconsistency by claiming title under a deed received after this action was begun from Adams and Post to himself, upon the necessary theory that the deed to Sheridan was void. The defendant has precluded himself in these several ways from affirming that the suit could not be maintained in . the name of the grantors, Defendant claims adversely, but has not title by adverse possession, as he purchased in 1900 and 1902, and his predecessor, Canning, claimed under the tax title and nothing else, and sold only that. While defendant’s counsel denies that he made the stipulation in a form so broad as the record recites it, his account of the matter shows that a stipulation was made to consider evidence present tending to show possession in Cogswell, and if plaintiff’s expres*611sion of it on the record was inaccurate or incomplete, defendant’s counsel should have spoken in dissent then, rather than at a time when it was too late to correct the record according to the fact as he asserted it. Therefore, there, was evidence of title in Post and Adams within the requirements of sections 365 and 368 of the Code of Civil Procedure. *(Deering*v. *Riley,*38 App. Div. 164; affd., 167 N. Y. 184.)

But the verdict directed for defendant was set. aside for error of the court in rejecting evidence that the deed from Adams and Post to defendant after the action was begun was procured by fraud. The learned counsel for the defendant invokes the record to show that plaintiff was not precluded by the ruling from showing such fraud. But the presiding justice, as the opinion shows, had a different' understanding of the scope of his ruling, and granted a new trial accordingly.

While the conclusion may in some aspects seem illogical, I think that a deed obtained from Sheridan’s grantors after suit brought is effective against the earlier deed, in the absence of proof that it was obtained fraudulently. At the time it was given, the deed from Adams and Post to Sheridan was void as against the defendant holding adversely to plaintiff’s title. But it was good as between the parties to it *(Dever*v. *Hagerty,*169 N. Y. 481), and the grantee was privileged by the Code of Civil Procedure (§ 1501) to bring action to recover the property in the name of the grantors. This is an absolute right which cannot be questioned by the grantors. *(Hasbrouck*v. *Bunce,*62 N. Y. 475, 483.) In that case it is said: *“*But the right to bring the action is conferred upon the grantee. He is recognized by law as being the real party in interest, and is empowered to use the name of his grantor whether he consent or not. The delivery of a deed, under these circumstances, and in view of this statute, is an irrevocable authority to the grantee to use the name of the grantor to recover the land. The grantee, in such á case, stands upon a similar footing to that of an assignee of a chose in action before the Code. He could sue in the name of his assignor, and the court would protect him against any interference by his assignor.” After action brought, it seems just that the grantor should not be permitted to defeat the conveyance, and the cause of action that the grantee has by *612reason thereof. Otherwise the right given the grantee in the' grantors’ name to bring the defendant into court would he unsubstantial and defeasible by the grantors,- aiding and abetting the defendant to defend by obtaining the very .title in depute, and at the same time depriving the first grantee of it with action begun. However, the technical' legal status of the grantors is that of plaintiffs holding the title to the property, and when they conveyed to the defendant the latter took the title and, having it, may not be ousted. *(Dever*v. *Hagerty,*169 N. Y. 481, 485.) In that case the second conveyance was made before suit begun, but had it followed the effect would have been the same. *(Jackson*v. *Demont,*9 Johns. 55.) But there, appears to be no reason ■ for excluding the issue of fraud, and. for error in that regard the; trial court properly set aside the verdict. It does not appear whether the evidence rejected relates to the execution of the instrument or to the contract to convey. The' citation of; *Smith*v. *Ryan*(191 N. Y. 452) by the trial justice indicates that he understood that the fraud and oppression was in the procurement of the execution of the deed, and that for such purpose the evidence was admissible appears from that and other decisions. Whether the evidence is admissible in this action, if it relate to the making of the agreement to convey, need not be decided, as it -has not been discussed by the parties, although some indication of judicial inclination may be found in *Phillips*v. *Gorham*(17 N. Y. 270); *Mandeville*v. *Reynolds*(68 id. 528); *Sullivan*v. *Traders’ Insurance Co.*(169 id. 213); *Babcock*v. *Clark*(93 App. Div. 119); *O’Meara*v. *Brooklyn City R. R. Co.*(16 id. 204).

The order is affirmed, with costs.

Jerks, P. J., -Hirschberg and Oarr, JJ., concurred; Burr, J., read for reversal. •

Burr, J.

(dissenting):

I dissent. I think that the verdict was properly directed for defendant, Catharine E. Sheridan, suing in the name of Emily Adams and Claudina Post, her grantors, made out a *prima facie*case, *first,*because the fair construction of the stipulation which was made in the action is that Cogswell, the prede*613cessor in title of Adams and Post, was in possession of the premises, and, *second,*because defendant did not rest upon the weakness of plaintiff’s title, hut attempted affirmatively to show his own title and proved that both claimed through a common source. *(Aubuchon*v. *New York, New Haven & Hartford R. R. Co.,*137 App. Div. 834.) But the deed from Adams and Post, to defendant, although made subsequently to the conveyance to plaintiff and subsequently to the commencement of this action, completely vested the title in him. At the time of such conveyance the land belonged to Adams and Post. So far as conveying any estate in the land itself is concerned, the deed to Sheridan was absolutely void. All that she obtained under that deed was a right to' sue, which right is in the nature of a chose in action. The conveyance by Adams and Post to defendant was one which they had a right to make even though the effect of the conveyance was to destroy this chose in action. *(Dever*v. *Hagerty,*169 N. Y. 481; *Jackson*v. *Demont,*9 Johns. 55.) But it is claimed that the deed from Adams and Post.to defendant was obtained “by trickery, by false suggestions of fact, by false statements of fact, and by duress and undue influence brought to bear upon them.” Assuming, for the sake of argument, that plaintiff’s exception is sufficient to present the question of the right to introduce such evidence in this action, I think that such right does not exist. If Adams and Post are the real parties in interest, although this is an action at law, I am inclined- to assent to the contention in the opinion of Mr. Justice Thomas that, if the fraud and oppression relate to the execution of the deed, they may be proved in this action. If plaintiff desired to be advised as to the grounds upon which the deed was to be attacked, she might have applied to the court to compel a reply; ■ Failing to do this, and the defense being affirmative in character, I think any evidence, either by way of denial or avoidance, was competent .to the extent indicated. But if Adams and Post are not the real parties in interest, and Catharine E. Sheridan is, then the latter cannot interfere in this suit and prevent the operation of the deed from Adams and Post to defendant upon the ground that execution of the deed was fraudulently obtained. As to her, it is *614
      *res inter alios acta.*She must stand upon the strength of her own demise. *(Jackson*v. *Demont, supra.)*But no person can he heard to attack a fraudulent transaction between strangers unless such person suffers injury as the result of the fraud. (1 Bigelow Fraud, 199; *Bell*v. Johnson, 111 Ill. 374.) The injury which Sheridan sustained was not by reason of the fact that the conveyance by Adams and Post to the defendant was fraudulently obtained. The injury would have been precisely the same if the conveyance had been voluntarily made by them. It does not concern her whether they were defrauded or not. She is not an assignee of that cause of action. That Catharine E. Sheridan is the real party in interest seems to he clear. *(Hasbrouck*v. *Bunce,*62 N. Y. 475.) When a conveyance is made.by a party out of possession, the grantee therein, as was stated in that case, is “the real party in interest.- * * 3⁄8 The delivery of a deed, under these circumstances, and in view of this statute, is an irrevocable authority to the grantee to use the name of the grantor to recover the land. 3⁄8 3⁄8 3⁄8 He could sue in the name of his assignor, and the court would protect him against any interference by his assignor.” It is quite clear that the “irrevocable authority ” there referred to and the protection “ against interference ” relate to the bringing of the action, and not the maintenance of it. The land is one thing, the chose in action is another. It is in the latter only that the grantee is interested. The maintenance of the action can be defeated and the chose in action destroyed, as has been heretofore pointed out, hy .a conveyance of the land. When the grantee’s chose in action is gone, there is nothing before the court for determination.

Order affirmed on reargument, with costs.