Wainman v. . Hampton

Earl, J. This is an action for the partition of certain lands situated in Livingston county, and it was commenced and tried prior to September 1,1880, when the second part of the Code of Oivil Procedure concerning actions for partition took effect. *432 Hence it is governed by the provisions of the Revised Statutes relating to the partition of lands. The complaint alleged that John Hampton, being the owner in fee of the lands described, died intestate in April, 1877, leaving no widow of issue, and that the lands descended to the persons mentioned in the complaint as his heirs, and were at the commencement of the action owned in fee by the parties thereto in the proportions mentioned, the interest of the plaintiff being one seventy-second part thereof. The defendant, Hampton, in his answer denied that the plaintiff, at the time of the commencement of the action, had the undivided estate in the lands alleged, or that she was in possession or entitled to the possession of the same; and he alleged that after the decease of John Hampton, in February, 1878, he entered into an agreement with the plaintiff whereby she agreed to sell her interest to him for $166.66, which he agreed to pay; that such agreement was on condition that her brothers and sisters should sell their shares for the same price;' that at the time of making the agreement he was desirous of making permanent and valuable improvements upon the lands, and so notified the plaintiff; and that, as part of the agreement, it was-agreed that he should and would go on and make such improvements; that he did at different times procure from her brothers and sisters, severally, agreements whereby they agreed to sell to him their several shares, each for $166.66, or thereabouts, and that all of them had conveyed their interests to him, except her sister, Alice Timothy; that, relying upon such agreement, he went into possession of the lands and of her interest therein and put extensive, valuable and permanent improvements thereon; that since the agreement he has been in the exclusive possession of the lands, and has claimed to be the owner thereof and of her interest therein, and has paid all the taxes on the lands with her knowledge; that after • the agreement, he, through his agent, tendered to her the sum of $166.66, and requested a conveyance from her, which she refused; and he alleged that he was ready and willing to perform, and offered to perform the agreement on his part; *433 and he prayed judgment upon the agreement alleged, as a counter-claim, that the plaintiff be compelled to convey her interest to him, and that he recover costs against her. The plaintiff replied denying all the allegations of the counter-claim and alleging that the defendant had had the use, benefit, rents and profits of the lands; that if he had made any improvements upon the lands they were temporary and for his own use and made with the avails of the rents and profits of the lands, and asking that the avails, rents and profits be set off against any amount that might be found due the defendant for the alleged improvements. The action was brought to trial at a Special Term and judgment ordering a partition of the lands was granted and entered, and partition has been made by commissioners appointed for that purpose. We are of opinion that no errors prejudicial to the defendant were committed in the court below. Host of those alleged are technical and do not need extended consideration. 1. At the commencement of the trial defendant’s counsel moved to dismiss the complaint, on the ground that there was no allegation therein that either of the parties or their ancestors had ever been in possession of the lands. A constructive possession, such as the law draws to the title, is sufficient for the maintenance of the action. It is alleged that the ancestor and each of the parties owned in fee, and that is all that is required. (3 R. S., [6th ed.] 584, §§ 8, 9; Bradshaw v. Callaghan, 8 Johns. 558; Jenkins v. Van Schaach, 3 Paige, 242; Beebe v. Griffing, 14 N. Y. 235; Florence v. Hopkins, 46 N. Y. 182.) He also moved to dismiss the complaint on the ground that, under the pleadings, questions of title were involved which could not be tried in the action. There was no denial in the answer of plaintiff’s title in the lands as one of the heirs of the common ancestor. The only allegations affecting her title were those in reference to the executory agreement for the purchase by the defendant of her interest, and those allegations formed an issue of equitable cognizance to be *434 tried by the court and not by a jury, and that issue was properly tried in this action. 2. There is no allegation in the answer that the defendant was in the possession of the lands adversely to the plaintiff or that he had ousted her, and there was no proof of adverse possession or of ouster. The proof tended to show that, the defendant took possession of the lands after the death of John Hampton, either as his administrator or as one of the tenants in common. The proof does not show that prior to the commencement of the action, he was in possession of the lands or of her interest therein under his agreement with her. His possession must be referred to his right as tenant in common, and it was not for an instant hostile to her in such a sense that without more it could, if continued, create in him a title by adverse possession. Hence such possession as he had did not stand in the way of the maintenance of this action. 3. The only real defense attempted on the trial was that alleged in the counter-claim set up in the defendant’s answer, to wit, that he was, by virtue of the agreement alleged, entitled to a conveyance of plaintiff’s interest in the lands. * * -x- * * -x- * Taking all the letters and all the oral evidence into consideration, the most that can be said is that there was an agreement on plaintiff’s part to sell upon a condition which was never performed, and the court did not err in refusing to compel specific performance of the agreement. 4. There was no error in refusing to allow the defendant for improvements made upon the lands. He did not in his answer demand that any account be taken of such improvements or that he have any allowance therefor. Hor did he, upon the trial, request that such an account be taken or allowance made. It is a fair inference, from the evidence, that the rents and profits of the lands received by him were substantially equal in value to the value of the improvements made thereon by him. *435 5. Subsequent to the submission and decision of the cause upon the settlement of the case, the counsel for the defendant produced to the trial judge certain requests to find upon questions of fact, which he refused to find. The requests were presented too late, and, for that reason alone, the judge could properly refuse to find the facts requested. (Oode, § 1023.) But, so far as they were material, the evidence justified the refusal to find the facts. We have given careful consideration to the other points argued on behalf of the defendant and believe they require no particular examination. They point out no error of which the defendant can justly complain. The judgment should be affirmed, with costs. All concur. Judgment affirmed. Footnotes [*] The omitted portion of the opinion is simply a resume of the evidence as to the alleged agreement.