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FIRST DEPARTMENT, MARCH TERM, 1899.

[Vol. 38. their rights, and it is entirely immaterial how those rights were derived, it being shown that the conveyance from Buckley, Lawrence and Schieffelin, in 1809, to Brass did not include the roadway in Bloomingdale road. We do not think it was necessary for the plaintiff to make proof of the names of the individuals who now own the two-thirds interests, or to try their title. It was enough for him to prove that he claimed his third and has title thereto, and that the other two-thirds were in unnamed persons who take either as heirs at law or as devisees or grantees of Buckley and Schieffelin; or, in other words, it was not the purpose of section 1500 to throw upon a plaintiff, suing in his individual right to an undivided interest in land, the duty of showing more than the source of his title and that there were others in whom the remaining interest vested, whether such others were named or unnamed.

It is further objected by the respondent that the action cannot be maintained because of the provision of section 365 of the Code of Civil Procedure, which is as follows: "An action to recover real property, or the possession thereof, cannot be maintained by a party, other than the people, unless the plaintiff, his ancestor, predecessor or grantor, was seized or possessed of the premises in question within twenty years before the commencement of the action."

This section must be read in connection with section 368. Section 365 only enacts that there must have been seizin or possession within twenty years; but section 368 prescribes what shall be evidence of possession, and it declares that the person who establishes the legal title to the premises is presumed to have been possessed thereof within the time required by law, which is merely saying that, for the purposes of the limitation of time in enforcing a remedy in actions for the recovery of real property, while seizin or possession within twenty years is required, at the same time it will be presumed in favor of the person who establishes the legal title on the trial -of course, unless it is shown that the premises had been held and possessed adversely to the legal title for twenty years before the commencement of the action.

The defendants' argument, that the right of possession has lapsed, since there has been no recent actual possession, must, therefore, fail. In so arguing the defendants state that, as it appears that the property was in possession of the public holding an easement from 1795

App. Div.]

FIRST DEPARTMENT, MARCH TERM, 1899.

to 1867, the original owners retained at most but a possibility of reverter for a re-entry to establish title, and there is no evidence that since 1867 the heirs of Schieffelin, Buckley and Lawrence, or those receiving as the plaintiff, have made any entry. Undoubtedly the law well establishes the principle that title itself is extinguished by twenty years of adverse possession after the right of re-entry has accrued. Here, however, there is no claim that there was adverse possession, or possession with claim of title adverse to that set up by the plaintiff, and the defendants rely merely on the section 365 referred to, asserting that actual possession is meant. We must hold that seizin or the right of possession is the proper construction, and, as shown by section 368, and as held in Arents v. Long Island Railroad Co. (156 N. Y. 1): "In an action to recover real property the person who establishes legal title to the premises is presumed to have been in possession thereof within the time required by law, and the occupation of the premises by another person is deemed to have been under and in subordination to the legal title, unless the premises have been held and possessed adversely to the legal title for twenty years before the commencement of the action.” Or, as stated in Bedell v. Shaw (59 N. Y. 51), mere possession, "however long it has been continued, of itself forms no defense to the action of the plaintiff," and the quality and extent of the right acquired by possession of lands depends upon the claim accompanying it. Section 365 of the Code, therefore, is no bar to the plaintiff's recovery.

The defendants further contend, however, that Molenor gave to the city the fee to the property taken for the Bloomingdale road, and that when the road was closed in 1867 the fee passed to abutting owners, the title to the property in dispute being given, therefore, to Thomas Brass. They also claim that if the city did not acquire the fee, there was then created an estate upon condition subsequent, requiring re-entry, Molenor thus retaining only a possibility of reverter which was not assignable or devisable. These arguments are met by the fact that it is admitted in the record that the city acquired merely a right of way; and, although the defendants assert that this admission was inserted without their knowledge, we find under the circumstances that the proper principle of law to be applied is that on the city's abandonment the property came to be

FIRST DEPARTMENT, MARCH TERM, 1899.

[Vol. 38. possessed by the original owner, his heirs, or those who take from him. Whether it is subject to any burdens or easements is not before us, and is not a matter with which the defendants have any concern. In 1867, therefore, we find that the fee of the land would. be in the original owners or those claiming by deed from them, and that no actual possession or entry was necessary to establish title.

We are thus brought to a consideration of the deeds given since Molenor owned the land, in order to determine the plaintiff's title. The contention that the deed to Thomas Brass would give the fee to the middle of the road did such fee remain in the grantors, fails for the reason that the deed specifically designates the boundary of the lots conveyed, and, according to the principles abundantly established of the strict construction of deeds, the land outside the eastern side or line of Bloomingdale road would be excluded. A similar case appears to be Holloway v. Southmayd (139 N. Y. 390, 413), where it is said: "We are inclined to the view that the descriptive monuments or starting points for the boundary lines cannot be fixed in the center of the Bloomingdale Road without straining too much the language used. In Shaw's deed the corner of Constable's land on the north side of the Bloomingdale Road' seems to indicate the side of the road. * * * So * * 'the corner of the

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field at the junction of the Bloomingdale Road,' etc., are words which, when read according to their natural import, seem to describe the situs of the field and fix the starting point for the boundary line in the exterior line or side of the road bounding the field and not within the road itself."

In Jackson v. Hathaway (15 Johns. 447), where the description reads: "A certain tract of land beginning at a certain stake by the side of the road called the old Claverack road, &c., from which stake running east 20° south, 2 chains, to another stake; thence south, 22° west, 17 chains 64 links, and thence' by specified courses and distances to the first mentioned bounds, making twelve acres, 2 roods and 10 perches of land," it was held that the road was excluded. In English v. Brennan (60 N. Y. 609) the description was: "Beginning at the southwesterly corner of Flushing and Clermont Avenues, running thence westerly along Flushing Avenue twenty-five feet; thence southerly at right angles to Flushing Avenue seventy-nine feet, nine inches, more or less, to a point distant forty feet seven and a half

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FIRST DEPARTMENT, MARCH TERM, 1899.

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inches westerly from the westerly side of Clermont Avenue; thence easterly and on a line at right angles to Clermont Avenue forty feet, seven and a half inches to Clermont Avenue, and thence northerly along Clermont Avenue to the place of beginning," and it was held that Clermont avenue was excluded. In Kings County Fire Ins. Co. v. Stevens (87 N. Y. 287) the property was bounded as "Beginning at a point on the southerly side of the Wallabout Bridge Road, adjoining the land now or lately belonging to north fortyeight degrees, nine minutes, west five hundred and ninety-four feet to the Wallabout Bridge Road; thence north seventy-six degrees, forty-three minutes west along said road one thousand two hundred and twenty feet to the place of beginning;" and the court held, citing many authorities, that as the starting point was on the side of the road, the road was excluded and the land was bounded by the southerly side of the highway.

Reading the words of the deed to Thomas Brass, we must conclude that he did not receive title to the middle of the road; and that, therefore, his grantors, Schieffelin, Buckley and Lawrence, or their heirs, had title to the land in dispute, and, no adverse possession being proved, still had title when the plaintiff's deed was given.

Minor objections are raised against the plaintiff's title, all of which are untenable and only some of which it will be necessary to examine. Thus, it is urged that the deed from George N. Lawrence does not purport to be executed by him as executor; or, if it did, that the deed would convey no interest because the power given the executors under the will of John B. Lawrence is presumed to have been long since extinguished. These objections were not urged upon the trial as ground for dismissal of the complaint; and had they been so presented, they might have been met by additional proof.

The defendants finally urge that the allegation as to damages in the complaint should have been pleaded as a separate cause of action and with more fullness. If the defendants could raise this question other than by demurrer, it is now clear, whatever may have been the former rule, that under the Code of Civil Procedure (§ 1496), and as set forth in Clason v. Baldwin (129 N. Y. 183), damages for the withholding of property are recoverable in an action of ejectment. As stated in the case referred to, "the commencement

FIRST DEPARTMENT, MARCH TERM, 1899.

[Vol. 38.

of the action with the demand in the complaint for damages for the withholding of the possession was sufficient to apprise the defendant. to prepare to meet the plaintiff's proofs as to all the damages which the withholding comprehended in fact."

Our conclusion, therefore, is that the plaintiff's exceptions should be sustained, and the motion for a new trial granted, with costs to plaintiff to abide the event.

VAN BRUNT, P. J., PATTERSON, INGRAHAM and MCLAUGHLIN, JJ., concurred.

Exceptions sustained, motion for new trial granted, with costs toplaintiff to abide event.

EMILY A. BLISS and Others, Appellants, v. BYRAM L. WINTERS, Respondent, Impleaded with Others.

a com

Marriage fraudulently contrived to obtain the property of an incompetent · plaint based on such fraud does not state more than one cause of action because of the fact that three instruments are sought to be set aside.

A complaint alleged the marriage of one Anne Maria Hunt to the defendant, and that shortly thereafter she made her will, giving the bulk of her property to him, and by a deed conveyed to him all her real estate, and by a bill of salethe chief part of her personal property; that she was an aged woman of about seventy years, in poor health and of unsound mind, and was very rich, and that the defendant, a lawyer of about thirty-five years of age, both before the marriage and at the time of the execution of the will and of the deed and of the bill of sale, knew of her enfeebled physical and mental condition, and, contriving and intending to take advantage thereof and to get from her all her property, induced her to marry him by fraud and undue influence; as relief, the plaintiff asked separately that the will and the deed and the bill of sale, obtained at different times, be set aside and held to be void. Held, that the complaint stated but a single cause of action, the gravamen of which was fraud, the means resorted to for its accomplishment being but enumerations of the instances and results of the fraud.

APPEAL by the plaintiffs, Emily A. Bliss and others, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 27th day of December, 1898, directing the plaintiffs to separately state and number the several causes of action claimed to be. alleged in the complaint.

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