APPEAL by the defendant, The Mission of the Immaculate Virgin for the Protection of Homeless and Destitute Children, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 11th day of November, 1910, upon the report of a referee.
Austen G. Fox [Theodore De Witt with him on the brief], for the appellant.
Charles S. Noyes, for the respondents.
This is an appeal from an interlocutory judgment in an action of partition, which defined the respective rights in the land in question that were vested in various of the parties to the action. The land is situated at Rockaway Beach, in Queens county. The complaint sets forth the alleged title of the plaintiff, and the titles and the respective interests of the various defendants. It was claimed in the complaint that the defendant Mission of the Immaculate Virgin was in possession of the larger part of the premises described therein, and held the same adversely, but without legal title or interest therein as against the plaintiff and the other defendants, and a judgment was asked declaring the said defendant to be without legal right or title to the premises sought to be partitioned. The defendant Mission of the Immaculate Virgin set up a claim of title adverse to that of the plaintiff and the other defendants, and asks for a dismissal of the complaint. No issues of fact were framed for trial by a jury, but a stipulation was entered into by all the parties to the action consenting to the entry of an order appointing David B. Ogden, Esq., referee to hear and determine. After taking the voluminous proofs which appear in the record on this appeal the learned referee wrote a somewhat elaborate opinion, in which he held that the defendant Mission of the Immaculate Virgin had no title or interest in the premises in question, and directed judgment accordingly. After the filing of this opinion very extensive findings of fact were made by the referee on the request of the plaintiff, and somewhat extensive requests to find made by the defendant Mission of the Immaculate Virgin were passed upon by the referee. Judgment was entered in
accordance with the findings of the referee in favor of the plaintiff, and from this interlocutory judgment the defendant Mission of the Immaculate Virgin has appealed to this court.
The last question discussed in the somewhat elaborate brief of the appellant is the first question that should be considered in order. It is urged by the appellant that the right, title and interest of the defendant Mission of Immaculate Virgin, which was in adverse possession of the premises in question as against all other parties to the action, could not be determined properly in an action of partition, and that, therefore, the complaint should have been dismissed. There are numerous decisions of recent date, some of which had been made by this court, in which it has been held that an action in partition may be maintained even when the premises are held adversely and that the right, title and interest of the adverse holder may be determined in such an action as an incident to the main relief of partition. ( Lawrence v. Norton, 116 A.D. 896; Leidenthal v. Leidenthal, 121 id. 269; Johnson v. Aleshire, 130 id. 178.)
Whatever title the parties to this action may possess originated in a common source of title. The land in question had been covered by a partition action in Queens county, which was brought in 1809 and which is generally referred to throughout the record as the Cornwell partition action. This land was owned originally by parties named Cornwell and a party named Josiah Martin. Josiah Martin died long prior to 1809 and devised his interest in the land to his son, Samuel Martin, who likewise died prior to 1809. Samuel Martin devised all his real estate to his two sisters, Alice Martin and Rachel Banister. In the partition action of 1809 an actual partition was had of the real estate covered by the suit. In that action it was adjudged that Rachel Banister and her husband, Thomas Banister, were seized of two undivided sixteenth parts of the property in question and that Alice Martin was seized of a like interest. Commissioners were appointed to make actual partition, and maps were prepared and acted upon by said commissioners. The land covered by this ancient action was situated at Rockaway Beach and consisted of beach land and marsh land. The commissioners on their maps divided the beach land into two divisions which they called the first and second divisions of the
beach. These divisions were again subdivided into plots which were numbered respectively. In the actual partition made by the commissioners Rachel and Thomas Banister were awarded lots 6 and 7 in the first division of the beach and lots 4 and 5 in the second division of the beach. These lots 4 and 5 of the second division of the beach embrace the land in controversy in this action. Alice Martin was allotted lots 4 and 14 of the first division of the beach and lots 12 and 13 of the second division of the beach and other land known as lots 13 and 14 of the division of the marsh, etc.
The plaintiff in this action and the other defendants, excluding the defendant Mission of the Immaculate Virgin, claim title to the land in question as descendants of or successors in interest of Rachel Banister, to whom an allotment was made in 1809. So far as the question of descent is concerned or succession by mesne conveyances there is no controversy in the case.
While there is a very elaborate presentation of the controversy in the respective briefs, it may be stated summarily as follows: The plaintiff claims that she and her cotenants have made out a prima facie case by showing title in Rachel Banister, and descent or succession from her. The appellant claims that it has made out a title by showing an intermediate acquisition, either by actual grant or by presumption of grant from Rachel Banister, deceased. When the plaintiff rested in her proofs she had made out concededly a prima facie title by descent from Rachel Banister. The appellant contends, however, that the proofs given by it on the defense established either an absolute title in itself from the original source of title or show such circumstances as to create a presumption in law that the plaintiff's alleged predecessors in title had in the course of time by grant or otherwise become divested of all title in the premises, ...