#### John McAuliff, Respondent, *v.*Mary F. Hughes, *nee*Frances Helen Welcome, and Richard Hughes, Her Husband, and as Committee, etc., of Mary F. Hughes, Defendants, Impleaded with Elizabeth Elliott, Appellant.

Third Department,

October 2, 1908.

Process — designation of party by nickname — facts establishing due service — partition — effect of previous conveyance by defendant — real property — champerty and" maintenance — conveyance of lands held adversely.

Although an heir named “ Claude’’ E. W. was served in a partition action under the name of “ Clody ” W., the court on appeal will assume that the service was made upon “ Claude ” where he is shown to have been one of the heirs and such fact was found by the referee.

*356The fact that the affidavit of such service was unverified is immaterial when the attorney who made the same took affidavit on applying for judgment that the summons and complaint were duly served upon all the defendants as proved by annexed affidavits and that more than twenty days had elapsed since the service tvas made and completed- especially where the judgment recites proof ■ of personal service upon all. of the defendants.

Under the circumstances it is also immaterial that the unverified affidavit stated the date of service as prior to,the issue of the summons and-complaint.

The title of a purchaser on partition will not be declared void ten years after the judgment and sale for mere errors in the affidavit of service when the summons and complaint are shown to have been duly served and that fact is not denied.

Where one of the defendants in partition had previously conveyed to a third party who had recorded his deed, the sale on partition passed no title to the grantee’s interest.

A.salé on partition purports to convey the entire fee and the purchaser has a-title and possession adverse to all parties.Hence, subsequent deeds obtained from persons who were parties to the parti- • tion after the purchaser has been in actual possession under a recorded deed for many years are void under section 225 of the Real Property Law. CocHitAME, J., dissented in part, with opinion.

Appeal by the defendant, Elizabeth Elliott, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Clinton on the 25th day of January, 1908, upon the decision of the court, rendered after a trial at- the Clinton Special Term, in a partition action, determining among other tilings that the said defendant has no substantial interest in the property in question.

*Patrick J.*Tierney, for the appellant.

*Adelbert W.*Boynton, for the respondent.

Kellogg, J.:

The appellant claims to be the owner of the premises and that the conveyances upon which the plaintiff claims title were made at a time when she was in the actual possession of said premises claiming under ah adverse title. Both the respondent and the appellant claim to derive their interest in said premises from the heirs of Bose Welcome, a former owner who died intestate. In 1892 Jane Lasher, Claude E. Welcome and Frances Helen Welcome were the owners of the premises as heirs of said Rose Welcome. In April, *3571896, Jane Lasher conveyed her interest to Martin H. O’Brien, who, in 1907, conveyed such interest to the plaintiff. In April, 1892, Frances Helen Welcome, by the name of F. Helena Welcome, conveyed her interest in said premises to one Holcombe, who brought an action in the Supreme Court against Clody Welcome, Jane Lasher, Alexander Welcome and Benjamin Elliott for the partition of said premises, and Sidney E. Maders, as. referee in such-action, conveyed said premises in August, 1897, to one Tin-dale. Elliott bid off the property at the sale, but Tindale advanced the money and took title, and in December, 1902, conveyed the same to the appellant. The deeds are regular in form. The' proceedings in the partition action were very irregular and it- was very carelessly conducted. The complaint and *Us pendens*were tiled in the county clerk’s office; the referee’s deed was duly recorded; the other proceedings could not be found at the time of the first hearing in this case, but subsequently were found and the judgment roll and other papers put in evidence. It does not, however, definitely appear whether they were found in the clerk’s office or where.

It is conceded that Claude E. Welcome was a son of Rose Welcome and at one time was the owner of a third interest in the premises. He is named in the partition action as “Clody” Welcome, and the proof of service shows service upon “Clody” Welcome. The proof before the referee in that action showed that “Clody” Welcome was one of the children of Rose Welcome, deceased, and the report of the referee finds such to be the fact. From the similarity of the names “Clody” Welcome and Claude E. Welcome, and from the proceedings in the partition case, we must assume that Claude E. Welcome was also known as “Clody” Welcome, and that he was named,and served in the partition action under the latter name.

Criticism is made that the alleged affidavit of B. B. Mason showing service of the'summons and complaint on “Clody” Welcome is not sworn to, but this criticism is purely technical, for on the 22d day of May, 1897, the said B. B. Mason, who was the, attorney in the action, made an affidavit in due form, upon which, he applied for judgment, and in which he swears that the summons and complaint were duly served upon all the defendants as appears by.the affidavits *358of B. B. Mason and Earl Daniels hereto attached, and that more than twenty days have elapsed since the said service was made and completed. This second affidavit practically shows that service was made as stated in the former affidavit. The judgment recites proof of personal service upon all the defendants by the affidavits of B. B. Mason, dated May 22, 1897, and Earl A. Daniels, dated March 8, 1897. It thus appears that the service was made upon “ Olody ” Welcome at least twenty days before May 22, 1897, and of course the service must have been made after the summons and complaint was issued. . The court, therefore, had complete jurisdiction of the person of *“*Clody ” Welcome. The unsworn-affidavit states that service was made February 2,1897; that is evidently a clerical error and does not vitiate the fact that service was made aftér the issue of the summons and complaint and more than twenty days before judgment was applied for. It was an irregularity but not jurisdictional. It should, therefore^ be treated as if the date of service was left blank and only showed that service was made after March sixth, the day the complaint was verified, and on or before May 1, 1897. Ten years after judgment and the sale in partition thereon^ the title acquired by a purchaser in good faitlq which has remained unquestioned all that time, cannot be declared void for an error in the affidavit of service of a summons and complaint which are shown-to have been duly served and which, service is not denied. The person making the service is dead and the defendant “Clody” Welcome-never has.denied or questioned the regularity of the service and lie probably participated in the division of the proceeds of sale. He was served in the little village where the property is situate and where the sale was held. That Claude E. Welcome’s interest was sold upon the sale is questioned now for the first time, not' by him or by evidence, but by an objection only from the plaintiff who was present at the sale and a bidder for the property and who ten years afterwards takes a quitclaim from him for ten. dollars, the premises then being in the possession of the purchaser at the partition sale. In the partition action the fact was overlooked that Jane Lasher Sad previously ponveyed her interest in said premises to O’Brien, .by deed duly recorded, so that the proceedings in partition gave no title to the one-third interest owned by O’Brien.

While the proceedings were irregular, for the purposes of this *359action tliey are sufficient as against the plaintiff to give the appellant title to the interest formerly owned by Claude E. Welcome and Frances Helen Welcome, nqw known in this action as Mary F. Hughes, and the appellant has been in possession of the premises ever since her deed, which was duly recorded, holding under such deed. The plaintiff received a deed from O’Brien of his interest in said premises May 11, 1907, for an expressed consideration. of one dollar, and a deed from Claude E. Welcome of his interest in said premises, May 31, 1907, for the expressed consideration of ten dollars. In his complaint in this action he alleges : “ That .-the defendant Elizabeth Elliott claims to be the owner of some interest in said premises, which claim this plaintiff denies, and alleges that she has no legal title to any interest in said premises and that she is a squatter thereon.” He, therefore, knew that she was holding the premises under an adverse claim of title. It is not pretended that she has claimed any title since the time of the conveyance to the plaintiff which she did not claim before.

The proof in the partition action showed that the property in question is a small village lot in the little hamlet of Clintonville, Clinton county, with a shop covering the whole frontage, or nearly so, on the street, and that the lot would be .of no value whatever except as a location for said shop. Elizabeth Elliott swears in this action : “ I occupy these premises now. The buildings on the premises are a blacksmith shop and a wheelwright shop; I occupy them both ; I have occupied and used the building as a blacksmith shop for over seventeen years. There is a garden on the premises; I work and keep the garden. In May, 1907, we plowed the ground and= planted it and used the shop.” This action was brought in June, 1907.

All parties interested in the title to real estate sought to be partitioned are necessary parties to the action, and a partition sale, therefore, purports to convey the entire fee in the property. The appellant did not purchase any interest from Frances Helen Welcome, or from any other of the heirs of Rose Welcome, but she purchased from an officer of the court the title in partition and is, therefore, presumed to have purchased and claimed the entire property. Her deed, therefore, was a title adverse to every party interested in the property at the time, and her nossession under the deed *360is a possession adverse to them. *(Baker*v. *Oakwood,*123 N. Y, 16 ; *Sweetland*v. Buell, 89 Hun, 543.)

The deeds to plaintiff are fairly within the letter and spirit of the; Champerty Act. The appellant had been many years in actual possession under a deed which purported to convey the whole title ^the plaintiff was present at the sale and knew the facts, and after-wards purchased from one party a one-third interest for one dollar,, and of another party a one-third interest for ten dollars. He has bought for a nominal consideration a claim to real estate from a. party out of possession, and promptly has brought action thereon. Within *Pearee*v. *Moore*(114 N. Y. 256); *Christie*v.. *Gage*(71 id. 189); *Dever*v. *Hagerty*(169 id. 481), and section 225 of chapter 547 of the Laws of 1896, the conveyance to the plaintiff was void. The trial court was not justified in disregarding the proceedings in the former partition action and the referee’s deed given therein, and was not justified in assuming that the deed given to Holcombe by F. Helena Welcome did not convey the interest which it is conceded Frances Helen Welcome inherited from her mother. The appellant is, therefore, the owner, so far as the plaintiff is concerned, of a two-thirds interest in the real estate sought to be partitioned ;'.the deed to the plaintiff of the other third from O’Brien is invalid for the-reasons before stated. The judgment should, therefore, be reversed and a new trial granted, with costs to the appellant to abide the event.

All concurred, except Cochrane, J., dissenting in part in memorandum.

Cochrane,. J. (dissenting):

We are dealing .with the undivided. shares of three tenants in common who are children and the only surviving heirs of Rose Welcome, deceased, the common ancestor. Giving to the former partition action all,.the effect which is claimed for it; it was insufficient to extinguish the,title of Jane Lasher, one of said thrée tenants in common, for the reason that she had conveyed her interest in the property by a deed recorded- before the institution of such partition action and the grantee was not made a party thereto. Plaintiff has confessedly - acquired the record title of said Jane Lasher.

But it is said that such record title is void for champerty. Plain*361tiff and appellant are confessedly tenants in common. Each goes back to a common grantor and each title unless champertous confessedly is valid and coexists with the other. In *Finn*v. *Lally*(1 App. Div. 416) it was said in speaking of the effect of the Champerty Act* on such a situation : “ These titles are not, therefore, hostile the one to the other within the meaning of this act. Each goes back to a common grantor and seeks to establish its validity by showing a descent from him in right line. For this reason it cannot be said that the plaintiff’s deed is void.”

But to go still further I find no evidence in this case that appellant ever claimed title adversely to plaintiff’s grantors. The Champerty Act (Real Prop. Law, § 225) is : “A grant of real property is absolutely void if at the time of the delivery thereof ■such property is in the actual possession of a person claiming under a title adverse to that of the grantor.” Under this statute two independent facts are necessary to vitiate a. deed, *first,*actual possession of the property, and *second,*a claim of title adverse to the grantor. Assuming that appellant was in possession of the property it by no means follows that she- claimed such possession under an adverse title. The referee’s deed in the partition action did not on its face purport to convey the entire title of the property but only the interests of certain specified parties not including the grantee of. Jane Lasher, who at that time owned her interest. Such form of the deed was in conformity with statutory requirement. (Code Civ. Proc. § 1244.) The purchaser under the partition sale, one Tindale, remained the owner from 1897 to 1902, when he conveyed his interest to the appellant. The title of plaintiff’s grantor was a matter of record, and both Tindale and appellant must be assumed to have known that they had only the interest of a tenant in common and there is no pretense that either ever claimed otherwise. There is no evidence that either ever disputed the title of plaintiff’s grantor, their cotenant. As tenants in common it should be presumed that each recognized the rights of the other, and claimed only such rights as belonged to each under their respective deeds. The possession of one of several tenants in common should be deemed the possession of all in accordance with their common interests rather than *362a possession of one to the exclusion of the others in the absence of evidence to the contrary. The property consists of a blacksmith shop, wheelwright shop and garden. The appellant as a witness was able to say no more than that her husband had" occupied the blacksmith shop for seventeen years. At the beginning of such occupancy the common ancestor, Bose "Welcome, had just died, and none of her heirs had yet given any deed. Surely appellant was not then claiming adversely to those heirs. There was no apparent change in the character of her possession after the conveyance by the referee to Tindale or by the latter to hei\ At the time of giving her testimony on the trial she claimed to occupy both shops and that she worked the garden in May, 1907. But'there is no evidence of any occupancy except of the blacksmith shop prior to the conveyance to plaintiff of Jane Lasher’s interest. The appellant did not, live there. She does not testify to any hostile word or act as against her co tenant add as far as the evidence discloses such co tenant" may have used or been in the enjoyment of a part of the property during all the time down to plaintiff’s conveyance.

“ Although one tenant in common grants to a third party the joint premises, by a deed conveying his whole interest and thereby enabling the grantee to lay the foundation for an adverse possession, yet the mere fact that the grantee takes possession under the deed is not of itself sufficient to begin an adverse possession such as will oust his cotenant. Before that can be begun there must be notice in fact to the cotenant that the adverse claim is made, or there must be such open and public acts by the adverse claimant as will make his possession so visible, hostile, exclusive and notorious that notice on the part of the cotenant of the claim adverse to his right may fairly be presumed. *(Culver*v. Rhodes, 87 N. Y. 348.)” *(Hamershlag*v. *Duryea,*38 App. Div. 130.)

It 'has been held that the facts required by the Champerty Act to avoid a grant must be shown by plain and unequivocal proof and that every presumption is in favor of a possession in subordination to the title of a real owner. *(Wickham*v. *Conklin,*8 Johns. 220 ; *Jackson*v. *Sharp,*9 id. 163 ; *Jackson*,v. *Waters,*12 id. 365 *Howard*v. *Howard,*17 Barb. 663.) This defense is tolerated and not encouraged for the reason that it has little application to modern conditions. *(Thallhimer*v. *Brinckerhoff,*3 Cow. 644; *363*Sedgwick*v. *Stanton,*14 N. Y. 289; *Crary*v. *Goodman,*22 id. 177; *Bissing*v. *Smith,*85 Him, 570; *Finn*v. *Lolly,!*App. Div, 415; *Saranac Land & Timber Co.*v.. *Roberts,*125, id. 333.)

. I, therefore, think that the defense of champerty has not been, sustained: ...

Interlocutory judgment reversed on law and facts and new trial granted, with costs to appellant to abide event.

*

 See 1 R. S. 739, § 147 ; .revised in Real Prop. Law (Laws of 1896, chap. 547), § 225.— [Rep.