Malaney v. Cronin , 7 N.Y. St. Rep. 700 ( 1887 )

Boardman, J.

Two issues only were presented by the pleadings. First. Whether the devise of the lands, which are the subject of the action, to Nancy Cronin, defendant, was valid. Second. Whether the defendants, Prior, were purchasers from Nancy Cronin, the devisee of such land, in good faith, for value and without notice of the invalidity of the devise. The jury found the devise to be void and that Prior was a bona fide purchaser and in the possession of the lands under a deed good in form given by Nancy Cronin. On these facts, conceded to be true for the purposes of the present appeal, the plaintiff claimed a judgment for partition of the lands between herself, as one of the heirs-at-law of Mary Malaney, deceased, and the other heirs-at-law. This claim was resisted by the defend- * an'ts, upon the sole ground that partition cannot be had under section 1537 of the Code, where the apparent devisee, Nancy Cronin, is not in possession, but the Pryors are in possession, holding adversely as Iona fide purchasers from said Nancy. The learned judge, with some hesitation, sustained the defendants’ claim and dismissed the complaint. The statute under which this action was brought is comparatively new and no authority is cited covering the precise point in controversy. Chapter 238 of the Laws of 1853, first gave such a right of action, and that was repealed in 1880 when section 1537 was incorporated in the Code in its stead. Under the act of 1853 it was held by the Court of Appeals, Judge Miller speaking ,for the court in Hewlett v. Wood (62 N. Y., 78), said that “an action of partition can be maintained to determine the validity of any devise or will of real estate notwithstanding an adverse possession. The action is in the nature somewhat of an ejectment; but issues of fact are to be made up and tried by a jury, and when the legal title is established, a partition or a sale may be granted upon application to the court, as the relief demanded after the main subject of the controversy has been determined by a jury.” It does not appear whether that action was brought against the apparent devisee or his grantee. In the present ease the Priors took the title of Nancy Cronin as heir-at-law, although her title as devisee was worthless. The Priors were, therefore, tenants in common with the plaintiff, the moment the devise was declared void. If the devise was void they could acquire no title under it. To sustain their entire title to the lands under Nancy Cronin’s deed they must sustain the validity of the devise against the attack of the heir-at-law. The probate of the will is not conclusive. (Matter of Gouraud, 95 N. Y., 256.) "When the will or devise fails their title under it fails notwithstanding their good faith. So when the devise is overthrown the Priors’ title under it is gone and they remain grantees of the share of Nancy Cronin as one of the heirs-at-law. Such possession, of course, is not adverse to the plaintiff. The grantee stands in the jfiace of the devisee and can have no greater rights. There can be no good reason why the heir may not have the same relief against the grantee as against the devisee. The intent of the law was to give a direct and prompt mode of determining the rights of the parties. Of what use, then, to require an action of ejectment to establish title and afterwards an action of partition to ascertain the rights of the parties and make division ? That seems to us precisely what the legislature intended to obviate by this new form of action. If Nancy ■Cronin had not been one of the heirs the position and claim of Prior might possibly have had more force. By the section 1537 whether in or out of possession, the action lies, notwithstanding an .apparent devise thereof to another by the decedent and possession under such devise, that seems to authorize in a single action the determination of the validity of the devise, and if that be found, void a partition of the premises among those entitled to share therein. Nancy Cronin was a necessary party to test the devise Prior was a necessary party both as to the devise and partition. 'We conclude that the old rule denying to a party partition of lands held adversely was intentionally changed where such adverse holding and possession was under a devise valid on its face but in fact void. The purpose of the law, if as stated, cannot and ought not to be thwarted by a -transfer of the devisee’s apparent title to a party whose title and possession is no other or better than the devisee’s. For these reasons we think the judgment should be reversed. No appeal has been taken from the order denying a new trial upon the issues settled and passed upon by the jury, and hence the verdict upon those issues must stand. The case must then go back to the .Special Term with directions to take such further action as is required by law and the practice of the court, preliminary to a final judgment of partition among the owners of the premises in ■controversy. If in the setting aside the deed from Nancy Malaney {now Cronin) to Prior, and the mortgage from the Priors to the ■executor,, any equities are involved requiring protection, the court at Special Term will provide for the same.

The judgment, is reversed and the proceedings are sent back to the Special Term for such further action as may be necessary in ■order to effect partition or sale of the premises. The appellant shall have costs of this appeal against the respondents.

HabdiN, P. J., and Follett, J., concurred.

.Judment reversed and proceedings remitted to the Special Term with instructions to effectuate a partition.

Costs allowed to appellant against respondents.