Griggs v. Peckham — 3 Wend. 436

Majority

p. 436

Griggs vs. Peckham and others.

Headnote

In partition in a case of default, the proof exhibited must at least be such as would establish a prima facie right of recovery in in action of ejectment. The proof must, in the first instance, be submitted to the clerk.

Proof of title in partition in cases of default. The default of the defendants having been entered for not appearing and shewing title to the proportions claimed by them in the premises set forth in the petition presented in this case, the plaintiff exhibited proof of his title and an abstract of the conveyance by which the same is held; which proof was a deed in fee of one third of the premises described, from Brockholst Livingston, by his attorney George M. Peckham, to the plaintiff, bearing date the 18th day of December, 1827, duly acknowledged and recorded. No other proof was offered.

By the Court,

The proof in this case is utterly defective. The deed produced by the plaintiff is executed by an attorney, and his power is not shewn ; but admitting the deed to have been duly executed, it does not shew even a prima facie right to the property in question. It bears date only about two years since, and even possession under it is not shewn. We therefore do not feel ourselves authorized, upon this proof to determine the right, title and interest of the plaintiff

As this is the first case which has arisen under the Revised Statutes, (2d vol. p. 321, § 22, 23,) where we have been called upon to determine the rights of the parties in partition, where a default has been entered, we think it well to intimate that the proof which we will require in cases of this kind will be such as in an action of ejectment would be considered as establishing a prima facie right in a plaintiff to recover the premises claimed by him; and that the practice which we will adopt in relation to these cases will be to refer the taking of the proofs to the clerk, whose report, together with the abstract of title furnished by the plaintiff, must be submitted to the court