Cases DETERMINED IN THE FOURTH DEPARTMENT IN THE APPELLATE DIVISION, April, 1901.* JOSEPH H. DRAKE and Others, Appellants, v. ALONZO T. DRAKE and Others, Respondents, Impleaded with SILA CAMPNEY and Others Appellants. Partition one tenant in common may sue his cotenant in the exclusive possession of the premises under a deed (claimed by the plaintiff to be illegal) from their common ancestor. A person entitled to the possession of real property as a tenant in common, save APPEAL by the plaintiffs, Joseph H. Drake and others, and by the defendants Sila Campney and others, from a judgment of the Supreme Court in favor of the defendants Alonzo T. Drake and others, entered in the office of the clerk of the county of Jefferson *The other cases of this term will be found in volume 60 App. Div.— [REP. APP. DIV.-VOL. LXI. 1 FOURTH DEPARTMENT, APRIL TERM, 1901. [Vol. 61. on the 17th day of October, 1900, upon the dismissal of the complaint as to the said Alonzo T. Drake and others after a trial at the Jefferson Trial Term. The action was commenced on the 2d day of May, 1896, for the partition of the lands described in the complaint, and situate in the town of Philadelphia, Jefferson county, N. Y. The facts, so far as material to the determination of the questions involved upon this appeal, are as follows: David Drake, who, at the time of his death and for many years prior thereto, resided in the town of Philadelphia, Jefferson county, N. Y., died on the 24th day of April, 1896. At the time of his death he was the owner and in possession of the lands described in the complaint, consisting of six separate farms comprising several hundred acres, and alleged by the plaintiffs to be of the value of $40,000. The deceased was a bachelor, was ninety years of age, and was an uncle of the respondents. On March 16, 1896, thirty-eight days before his death, David Drake executed and acknowledged a deed of conveyance of all the lands described in the complaint, except two of the farms, to the respondents, and those two farms, by a deed executed and acknowledged at the same time, he conveyed to two of the other defendants. Such deeds were executed and acknowledged during the last sickness of David Drake, and were delivered by him to one Kinney, with instructions to hold the same, and in case he, Drake, did not recover, to deliver them upon his death to the grantees therein named respectively. Kinney accepted the deeds, and promised and agreed to carry out the directions of the grantor in respect thereto. David Drake did not recover from his last sickness, but died on the 24th day of April, 1896, and while the deeds remained in Kinney's possession. The deeds were not delivered by Mr. Kinney to the defendants upon the death of David Drake, nor until November, 1897, when, pursuant to a stipulation between the parties, they were delivered to the respondents, and were by them procured to be recorded in the office of the clerk of Jefferson county on the 9th day of November, 1897. The respondents were in possession of some of the farms conveyed to them, as tenants of the deceased David Drake, at the time of his death, and other persons were in possession of other of the farms, also as tenants. App. Div.] FOURTH DEPARTMENT, APRIL TERM, 1901. Immediately upon the death of David Drake the respondents assumed to take possession of the farms, which they were then occupying as tenants, as owners, claiming to own the same under the deeds to them, and upon the expiration of the leases to the other tenants they assumed to and did take actual possession of the other of said farms, and have ever since occupied all the lands conveyed to them, being all the lands described in the complaint, and of which the deceased died seized, except the two farms conveyed to two other of the defendants respectively, and the respondents have ever since been in the exclusive possession of the premises so conveyed to them, claiming to own the same by virtue of said deeds. The execution and acknowledgment of the deeds by David Drake, the possession of the respondents, their claim that they were the owners of the premises and entitled to their exclusive possession, was known to the plaintiffs at the time of the commencement of this action. The complaint is in the usual form. It is alleged that the plaintiffs and defendants are tenants in common of the real estate described in the complaint, as the heirs at law of David Drake, deceased. The respondents by their answers set up the deeds to them from David Drake; deny that they are tenants in common with the plaintiffs, or with any of the other defendants, and allege that they are the owners in fee of all the lands described in the complaint, except the two farms conveyed to two of the other defendants. The plaintiffs served a reply upon each of the respondents, in which they allege that the deeds executed by the deceased, and purporting to convey the lands therein described, were and are void, for the reason that they were procured by fraud and undue influence, and executed at a time when the grantor was incompetent to make or execute such instruments. The issue so framed, to wit, whether or not the deeds to the respondents were void, the appellants sought to litigate, and requested to be allowed to make their proofs and that the question be submitted to the jury for its determination. The learned trial court denied the request and dismissed the complaint, with costs, to which the appellants duly excepted. The questions presented by this appeal are: First. Can the plaintiffs maintain this action, they not having |