Ford v. Sampson — 30 Barb. 183

Majority

p. 183

Ford vs. Sampson.

Headnote

An answer, in an action to recover the possessioh of real estate, which denies that the defendant is in possession of the premises described in the complaint, or that there has been any demand of the possession, by the plaintiff, or any unlawful withholding thereof, does not ptit ill issue the title of the plaintiff, or raise the question of adverse possession.

If the defendant designs to question the validity and force of the deed, under which the plaintiff claims, to pass the title to the lands in dispute while a stranger was in possession claiming title, he should frame his answer accordingly, and sét tip a title in himself, or title out of the plaintiff

THIS was a motion to turn a verdict for the defendant into a verdict for the plaintiff. The action was brought to recover the possession of real estate in Brooklyn. The defendant, in his answer, denied that he was in possession of a portion of the premises as bounded and described in the complaint. He also denied that any demand of possession had been made, by the plaintiff ‘ or that there had been any unlawful withholding ; but the answer contained no denial of the plaintiff’s seisin or right of possession.

On the trial the judge directed the jury to find a verdict for the defendant, with leave to the plaintiff to apply to the court, at a general term, to turn the same into a verdict for the plaintiff for a strip of land on the southerly side of the plaintiff’s lot, four inches in width at the rear of the lot, and twenty-two feet six inches in length.

Gordon L. Ford, plaintiff, in person.

A. Lott and P. S. Crooke, for the defendant.

The parties to this action are owners of separate lots of ground adjoining and upon the west side of Columbia street in the city of Brooklyn, and this action is brought to recover a small gore of land, six inches wide in the rear, and running out to a point thirty-five feet easterly from the rear of the lots, and. which the plaintiff claims is in-

p. 184

eluded within the lines of his lot, and is now in the possession of the defendant. The proof shows that the gore of land in controversy is within the defendant’s inclosure, and on his side of the division fence. George S. Howland owned both of the lots in 1841, and is the common source of title. He conveyed the plaintiff’s lot to Wildes Thomas Thompson, by deed dated June 21, 1842, who conveyed to William S. Wet-more by deed dated September 7,1848. William S. Wetmore conveyed to the plaintiff by deed bearing date April 19,1856. The title deeds of the defendant were not produced upon the trial, so that we do not see precisely when he or his grantors, mediate or immediate, entered into the possession. If the question of adverse possession arose in the case, as the counsel for the defendant supposed, upon the argument, this fact would have been important; but in the view I shall take of the case, it cannot be of any consequence.

The complaint sets out the plaintiff’s seisin in fee simple of the entire lot upon the westerly side of Columbia street, describing it by the same metes and bounds as those contained in the several deeds of conveyance to which I have referred; and then alleges that the defendant is in possession of a portion of the lot, being the gore in controversy, which is also described by metes and bounds. It also alleges that possession of the gore or small lot has been demanded of the defendant, and that he refused and still refuses to deliver up the same to the plaintiff. To these distinct and specific allegations the defendant answers that he denies, that he was in possession of the premises claimed and described in the complaint. He also denies the demand of the possession, and the unlawful withholding thereof.

The title of the plaintiff is not put in issue by the pleadings, for nothing is controverted by the answer but the defendant’s possession, the plaintiff’s demand of the possession, and the unlawful withholding thereof by the defendant. Ho question of adverse possession arises in the case; for if it was the design of the defendant to put in question the validity and

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force of the plaintiff’s deed, to pass the title to the lands in dispute while a stranger was in possession claiming the title, he should have framed his answer accordingly, and set up the title in himself, or title out of the plaintiff, and thus the title would have been put in issue.

[Dutchess General Term,

May 14, 1859.

Both the surveyors concur that the plaintiff’s deed covers the premises in dispute, and the letter of the plaintiff of the date of the 1st July, 1858, and the defendant’s reply thereto, proves that the possession was demanded and refused. .

Judgment should be entered that the plaintiff recover from the defendant the premises described in the complaint, with costs,

Judgment accordingly.

Lott, Emott, Brown and Davies, Justices.]