CATHARINE E. SHERIDAN, Suing in the Name of EMILY ADAMS and CLAUDINA POST, Her Grantors, Appellant,
CHARLES CARDWELL, Appellant.
CROSS-APPEALS by the plaintiff, Catharine E. Sheridan, suing, etc., and the defendant, Charles Cardwell, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Queens on the 17th day of March, 1910.
A reargument was ordered in January, 1911. (See 142 A.D. 947.)
Edward R. Clark [Stephen H. Voris with him on the brief], for the plaintiff.
Robert B. Honeyman, for the defendant.
The reargument was granted on account of a suggested failure on the part of the court to observe that there was an admission that Cogswell's father was in actual possession at
the time of the delivery of his deed to Husted, plaintiff's father. Mr. Justice RICH, in his opinion upon the first presentation of the appeal, concluded that plaintiff's motion for the direction of a verdict was properly denied, for these reasons: (1) That plaintiff proved neither seizin nor possession within twenty years in herself or either of her predecessors in title, as required by section 365 of the Code of Civil Procedure; (2) that the action could not be maintained by Sheridan suing in the names of Adams and Post, her grantors, as there was failure to prove that defendant was claiming under a title adverse to that of Adams and Post when they conveyed to Sheridan; (3) that there was evidence that defendant's right of possession rested on tax leases other than the two proved illegal. (141 A.D. 854.) It clearly appears that Canning, defendant's predecessor, had such title as was carried to him by tax leases, Exhibits D and F, and that he assigned them to defendant by instruments E and G. In his testimony he did speak of other leases, as he well might, as besides the two lots in question he had ten others similarly acquired. But it is obvious that he claimed under the two that he sold the defendant, and the answer sets up two leases and no more. While the defendant plead these leases, he also alleged that he was in actual adverse possession of the premises when Adams and Post conveyed to Sheridan, and that the deed was void, and this, also, is made a ground of nonsuit. In the face of this answer and such motion, defendant asserts that the action may not be maintained in the name of the grantors, and he emphasizes his inconsistency by claiming title under a deed received after this action was begun from Adams and Post to himself, upon the necessary theory that the deed to Sheridan was void. The defendant has precluded himself in these several ways from affirming that the suit could not be maintained in the name of the grantors. Defendant claims adversely, but has not title by adverse possession, as he purchased in 1900 and 1902, and his predecessor, Canning, claimed under the tax title and nothing else, and sold only that. While defendant's counsel denies that he made the stipulation in a form so broad as the record recites it, his account of the matter shows that a stipulation was made to consider evidence present tending to show possession in Cogswell, and if plaintiff's expression
of it on the record was inaccurate or incomplete, defendant's counsel should have spoken in dissent then, rather than at a time when it was too late to correct the record according to the fact as he asserted it. Therefore, there was evidence of title in Post and Adams within the requirements of sections 365 and 368 of the Code of Civil Procedure. ( Deering v. Riley, 38 A.D. 164; affd., 167 N.Y. 184.)
But the verdict directed for defendant was set aside for error of the court in rejecting evidence that the deed from Adams and Post to defendant after the action was begun was procured by fraud. The learned counsel for the defendant invokes the record to show that plaintiff was not precluded by the ruling from showing such fraud. But the presiding justice, as the opinion shows, had a different understanding of the scope of his ruling, and granted a new trial accordingly.
While the conclusion may in some aspects seem illogical, I think that a deed obtained from Sheridan's grantors after suit brought is effective against the earlier deed, in the absence of proof that it was obtained fraudulently. At the time it was given, the deed from Adams and Post to Sheridan was void as against the defendant holding adversely to plaintiff's title. But it was good as between the parties to it (Dever v. Hagerty, 169 N.Y. 481), and the grantee was privileged by the Code of Civil Procedure (§ 1501) to bring action to recover the property in the name of the grantors. This is an absolute right which cannot be questioned by the grantors. (Hasbrouck v. Bunce, 62 N.Y. 475, 483.) In that case it is said: 'But the right to bring the action is conferred upon the grantee. He is recognized by law as being the real party in interest, and is empowered to use the name of his grantor whether he consent or not. The delivery of a deed, under these circumstances, and in view of this statute, is an irrevocable authority to the grantee to use the name of the grantor to recover the land. The grantee, in such a case, stands upon a similar footing to that of an assignee of a chose in action before the Code. He could sue in the name of his assignor, and the court would protect him against any interference by his assignor.' After action brought, it seems just that the grantor should not be permitted to defeat the conveyance, and the cause of action that the grantee has by
reason thereof. Otherwise the right given the grantee in the grantors' name to bring the defendant into court would be unsubstantial and defeasible by the grantors, aiding and abetting the defendant to defend by obtaining the very title in dispute, and at the same time depriving the first grantee of it with action begun. However, the technical legal status of the grantors is that of plaintiffs holding the title to the property, and when they conveyed to the defendant the latter took the title and, having it, may not be ousted. ( Dever v. Hagerty,169 N.Y. 481, 485.) In that case the second conveyance was made before suit begun, but had it followed the effect would have been the same. (Jackson v. Demont, 9 Johns. 55.) But there appears to be no reason for excluding the issue of fraud, and for error in that regard the trial court properly set aside the verdict. It does not appear whether the evidence rejected relates to the execution of the instrument or to the contract to convey. The citation of Smith v. Ryan (191 N.Y. 452) by the trial justice indicates that he understood that the fraud and oppression was in the procurement of the execution of the deed, and that for such purpose the evidence was admissible appears from that and other decisions. Whether the evidence is admissible in this action, if it relate to the making of the agreement to ...