Bates v. Lidgerwood Manufacturing Co. — 20 N.Y. St. Rep. 778

Majority

p. 778

Aaron P. Bates, App’lt, v. Lidgerwood Manufacturing Co., Resp’t.

(Supreme Court, General Term, Second Department,

Filed December 10, 1888.)

Headnote

1. Ejectment—When plaintiff entitled to.

Iii an action of ejectment a plaintiff (unless lie connects his title with a prior possession) must recover on the strength of his own title, and not on the weakness of that of his adversary. The production of the deed with proof of -possession under it, or possession in the grantor, is not sufficient evidence of title to put the .defendant on his defense.

2. Execution—Sale under.

The interest of a person holding a contract for the purchase of land cannot be sold under execution. 1 R. S., p, 744, § 4.

8. Same-i-When interest of debtor in a trust cannot be sold on execution. . ,

Where one has advanced the consideration for a conveyance made to another; a trust is raised in fa-var of the creditors of the former, hut the

p. 779

creditor must resort to a court of equity, he cannot sell the land- on an execution.

4. Same—Evidence—Competency op.

The plaintiff, in the action of ejectment, alleged title in a certain company, the recovery of a judgment against that company, and the sale on-execution to the plaintiff o£ the premises in question. The answer denied title in the execution debtor and alleged that at the time of the recovery of the judgment one R. was owner in fee of the premises. The plaintiff offered in evidence a decree and judgment roll of the court of chancery of New Jersey in a suit against said company and R., by which it was adjudged that the company were equitably the owners of the property in dispute. Held, that they were competent as evidence.

Appeal from a judgment dismissing the complaint:

A. P. Bates, for app’lt; Harriman & Fessenden, for resp’t.

This is an action in ejectment. The complaint alleges title in the Fibre Disintegrating Company, the recovery of a judgment against that company and the sale, on execution, to the plaintiff of the premises in question. The answer denied title in the execution debtor and set up affirmatively the defendants’ claim of title.

It is elementary law that in ejectment a plaintiff (unless he connects his title with a prior possession) must recover on the strength of his own title and not on the weakness of that of his adversary. It is also settled law that production of a deed, without proof of possession under it or possession in the grantor, is not sufficient evidence of title to put the defendant on his defense. Downing v. Miller, 33 Barb., 386 .

Upon the trial the plaintiff offered no direct proof to show either title" or possession in the Fibre Company. But the answer alleged the fact that at the time of the recovery of thé judgment one Eobert W. Eussel was the owner in fee of the premises. This fact the plaintiff, therefore, had the right to assume. The plaintiff then offered in evidence a decree and judgment-roll of chancery of the state of New Jersey in the suit of Ogilby v. Fibre Company, and said Eussel, by which it was adjudged that the company were the equitable owners of the property in dispute. This was excluded by the_trial court. That the decree of the court of chancery in A ew Jersey could have no extraterritorial effect is unquestionable. But the defendant' Eussel answered, admitting the allegations of the bill of complaint. Such admissions, I think, were like other declarations of one in possession of realty, good evidence of title. The complaint and answer were, therefore, improperly excluded if the facts alleged in the bill, and admitted, tended to show title in the plaintiff, but, we think, they did not.

The facts set forth in the complaint showed either that the Fibre Company was in possession, holding under con

p. 780

tract of sale, or that it stood in the relation of one who had advanced the consideration for a conveyance made to another. In either case it had no title capable of being sold on execution. As to the first, the provision of the Revised Statutes is (part 4, page 744) that the interest of a person holding a contract for .the purchase of lands shall not be sold under execution. Sage v. Cartwright, 9 N. Y., 49 ; 6 Hill, 525 .

In the latter case, while a trust is raised in favor of credit- • ors, the creditor must resort to a court of equity; he cannot sell the land on execution. Garfield v. Hatmaker, 15 N. Y., 475 .

The evidence was, therefore, properly excluded, and he failed to show any title in the judgment-debtor. The complaint was properly dismissed.

Judgment should be affirmed, with costs. Barnard, P. J., and Dykman, J., concur.