Bockes v. Lansing

The plaintiffs, successor’s to the title of Simeon D. Webster, claim to own the land in fee by virtue of conveyances from George *41Webster. Tbe defendants, wbo are in possession, claim title by virtue of supplementary proceedings against George Webster and in favor of a creditor of his, taken subsequently to tbe time of tbe execution of tbe conveyances under wbicb tbe plaintiffs claim.

This is a case then, as it seems to me, where tbe plaintiffs’ remedy was by ejectment. But tbe present action is brought in equity to set aside tbe proceedings supplementary and tbe conveyance by tbe receiver and bis grantee under tbe same, through wbicb tbe defendants claim, as a cloud on tbe plaintiffs’ title, etc., and for an accounting of tbe rents and profits, etc. I do not think that this action can be maintained. Whether the judgment under wbicb these proceedings were taken bad, or bad not, ceased to be a lien, was a matter for George Webster to litigate; not for tbe plaintiffs. Tbe plaintiffs (and Simeon D.) claimed adversely to George ; and they bad no right (nor bad Simeon D.) to notice of proceedings which were to have tbe effect solely of transferring to some creditor whatever property George Webster then bad.

If tbe plaintiffs’ title was good, it was of no consequence to them, or to Simeon D., what proceedings should be taken against George. If their title was not good, then they and Simeon D. bad no interest in tbe matter of tbe proceedings. And if tbe plaintiffs urge, that while George could not dispute their title, as void against bis creditors, yet that bis creditors might, tbe reply is that, if tbe plaintiffs have a good title they can recover in ejectment. If not, they should not recover in any action.

It may be said that all tbe facts appear in this case, and therefore that tbe court should give relief, without regard to tbe form of tbe pleadings. But that remedial rule is not to be carried to this extent. A plaintiff is not to sue on a promissory note and recover for an assault and battery. The action of ejectment is distinct. It is for tbe recovery of tbe possession of land and thus for establishing tbe title. Tbe present action is solely an action in equity, such as might be maintained, in a proper case, by a party in possession to remove a cloud.

Tbe plaintiffs may urge that George Webster continued in possession as tenant of Simeon D., and that hence tbe defendants are to be deemed tenants of tbe plaintiffs. That does not alter tbe case. Tbe defendants are bolding, or claiming to bold, adversely; *42and the plaintiffs should dispossess them by suit or by some proper proceeding.

I do not mean to express any opinion whatever as to the validity of the assignment, or as to the title which Simeon D. obtained by the conveyance from Russell, or by the direct conveyance from George or upon the merits in any particular. And in the view above taken it is unnecessary to examine any questions as to the admission of evidence or the conclusions of fact. The judgment should be affirmed with costs; but this must be without prejudice to any action of ejectment, should such action be brought by the plaintiffs.

(dissenting):

Without attempting to pass upon all of the numerous questions raised by this appeal, it is apparent that there must be a new trial for errors in the court below in the reception and rejection of evidence.

All of the parties to this action claim under George Webster as the common source of title; the plaintiffs under deeds executed by him; the defendants through Eleanor Webster, who claims under a receiver’s deed in proceedings supplemental to execution upon a judgment against George Webster, her husband. Both George and Eleanor Webster at the time of the trial were dead.

On the trial the plaintiffs offered in evidence a deed from George Webster and Eleanor Webster, dated April 30, 1859, to Simeon D. Webster, through whom plaintiffs claim as a part of their chain of title. This was objected to and the referee held it inadmissible under the pleadings, except to show a release of Eleanor’s inchoate right of dower, and confined its force and effect to that alone.

In the complaint the plaintiffs allege that the judgment under which defendants claim, had ceased to be a lien upon any real estate of. the said George Webster as against David Russell, a purchaser and grantee of George Webster, “ and as against Simeon D. Webster, a purchaser from the said David Russell, and also from the said George, by deed executed April 30, 1859, in good faith.”

These allegations we think amply sufficient to require the reception of the deed in evidence for all purposes, and that the limitation imposed and acted upon by the learned referee was error.

*43Again, the defendants called as a witness David H. Humphries, the grantee of the receiver, in the deed executed by him, and the grantor in the deed to Eleanor Webster, and under which conveyances the defendants claim title to the premises, in hostility to plaintiffs’ title, and offered tó prove by the witness communications made to him by George Webster in his life-time, tending materially to affect injuriously plaintiffs’ title and strengthen the defendants’. This evidence was objected to by the plaintiffs’ counsel, on the ground that the witness was incompetent under section 399 of the Code. The objection was overruled and the evidence received. Under the construction given to this section of the Code by the Court of Appeals, in Mattoon v. Young (45 N. Y., 696), and by this court, in Richardson v. Warner (13 Hun, ante, p. 13), the witness was clearly incompetent and his evidence inadmissible; he had owned and transferred the very title under which the defendants claim.

The findings of the referee show that this evidence must have materially affected his decision, and without passing upon the other questions raised, I am of the opinion that the judgment should be reversed, the reference discharged, and a new trial ordered, costs to abide the event.

Judgment affirmed, with costs.