Howell v. Mills

By the Court— Gilbert, J. The complaint contains no averment that the plaintiff was in possession of the premises sought to be partitioned. Neither of the defendants interposed a demurrer on this ground, nor was the objection taken at Special Term in any form. We think it cannot be presented here for the first time. This certainly is the general rule. (Pope v. Dinsmore, 29 Barb., 367; Carley v. Wilkins, 6 id., 558.) The statute evidently contemplates that the objection should be taken by the defendants by demurrer or answer (2 R S., 320, §§ 16 to 25; Code, §§ 144, 147,148, 448); and when it is not so taken, the judgment must conclude the parties. (Blakely v. Calder, 15 N. Y., 617; Horton v McCoy, 47 id., 24.) But if that judgment were properly before us for review, we should be of opinion that the objection that the plaintiff was not in the actual possession of the premises, but that they were in the actual occupancy of the life tenant, is not a good one. The statute does not require a pedis joossessio. It is enough that the plaintiff has a present estate as tenant in common or joint tenant, and is constructively in possession of an undivided share or interest in the premises. (Burhans v. Burhans, 2 Barb. Ch. R., 408; Jenkins v. Van Schaack,3Paige, 242.) The object of the revisers in reporting this statute was to exclude a party from instituting a suit for the partition of premises held adversely to him. As reported'by them, the statute required an actual possession, but the legislature struck out the word “ actual.” From this fact, it is-reasonable to [196] infer that they intended that a constructive possession of the plaintiff should be sufficient. (Beebee v. Griffing, 14 N. Y., 238.) This court did indeed hold in Brownell v. Brownell (19 Wend., 370) that when the plaintiff had only an interest in remainder, the suit could not be maintained. But that case was decided before the amendatory act of 1847 was passed. (2 Laws of 1847, 587.) In the case of Blakely v. Calder (13 How., 476), which arose since the act of 1847, it was held by this court that an existing admitted life estate, although covering the whole premises, does not prevent the remainder-man from being deemed “ in possession ” within the meaning of the law. The judgment in that case was affirmed by the Court of Appeals (15 bf. Y., ubi sup.) upon an other ground, but at the same time a strong expression in favor of the position of this court, upon the question under consideration, was given. The decision in Blakely v. Galder accords with our own views of the law, and, being the latest one which we have been able to find bearing directly upon the point, must govern us in the disposition of this case. (See also Laws of 1852, 411.) The estate of the plaintiff, George Walter Hurtin, we think was a vested remainder in fee, subject to be divested by his death without issue. (Williamson v. Field, 2 Sand. Ch. R., 533, and cases cited.) The present capacity of taking effect in possession, if the possession were to become vacant, and not the certainty that the possession will become vacant before. the estate limited in remainder determines, universally distinguishes a vested remainder from one that is contingent. (2 Cruise Dig., 270.) We have looked into the authorities cited on behalf of the appellant, but none of them appear to us to conflict with the conclusions we have expressed. The judgment must, therefore, be affirmed, with costs.