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App. Div.]

Second Department, April, 1910. JENKS, J.:

The defendant appeals from an order of the Municipal Court that denied its motion to vacate a judgment entered against it by default. The ground of the motion was jurisdictional, in that the defendant was not served with process, and that the alleged appearance in this action of its general attorney was a fraud, if not a forgery. The appellant would have us regard this appeal as from an order refusing to open its default. But the application for the order to show cause, that order, the avowed contention of counsel at the time of the application, and the order entered upon the motion, all indicate plainly that the remedy sought was vacation of the judgment. The judgment was entered in 1905, and but a few days intervened the entry thereof and this application. The justice who presided in the court at the time the motion was made overlooked the motion, and did not decide it until December 31, 1909, when it was denied "for want of power.” If this decision had been made prior to September 1, 1907, there was anthority for it (Diehl v. Steele, 49 Misc. Rep. 456), and the remedy of the defendant, as pointed out in that case, would have been found in section 311 of the Municipal Court Act. But on September 1, 1907, section 253 was amended (Laws of 1907, chap. 304) so that at the time this decision was made the court or a justice thereof, in a district in which a judgment is taken without the service of a summons or of process as required by law, could have vacated the judgment, and have afforded the further appropriate relief, for this amendment but affected the remedy, and was, therefore, applicable to the case at bar when the court came to decide it. (Matter of Davis, 149 N. Y. 539; Southwick v. Southwick, 49 id. 510; Ryan v. Waule, 63 id. 57; Lazarus v. M. E. R. Co., 145 id. 585; Peace v. Wilson, 186 id. 403.)

The order is reversed, with ten dollars costs and disbursements, and the motion is remitted to the Municipal Court for hearing upon the merits thereof.

Burr, THOMAS, Rich and CARR, JJ., concurred.

Order of the Municipal Court reversed, with ten dollars costs and disbursements, and motion remitted to said court for hearing upon the merits thereof.

A pp. Div.-Vol. CXXXVII. 53

Second Department, April, 1910.

[Vol. 137.

William N. AUBUCHON and CHARLES L. AUBUCHON, Respondents,

V. THE NEw York, New HAVEN AND HARTFORD RAILROAD COMPANY, Appellant.

Second Department, April 22, 1910.

Ejectment — proof of title — when paper title insufficient - when no

presumption of possession - probate of heirship by surrogate not conclusive as to title.

In an action of ejectment it is not sufficient to prove a paper title to the lands

unless it be traced back either to the sovereign or to some one who was the common source of the titles claimed by both parties. In other cases in addition to the paper title possession in some one through whom the plaintiff claims must be proved. The words “legal title," as used in section 368 of the Code of Civil Procedure

creating a presumption of possession where a party in ejectment establishes a legal title, mean something more than a paper title. It means a title which if

undisputed would sustain an action of ejectment within the rule last stated. As the surrogate has no jurisdiction to determine the validity of a title to lands,

a decree rendered in a proceeding for the probate of heirship finding that cer. tain persons were the only heirs of a decedent does not establish the validity of a title derived through them as against another claimant who was not a

party to the proceeding. The plaintiff in ejectment must recover upon the strength of his own title, not on the weakness or lack of title in the defendant.

APPEAL by the defendant, The New York, New Haven and Hartford Railroad Company, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Westchester on the 12th day of July, 1909, upon the decision of the court rendered after a trial at the Westchester Special Term.

William A. Woodworth [Charles M. Sheafe, Jr., with him on the brief], for the appellant.

Charles W. Sinnott, for the respondents.

BURR, J.:

This action is in ejectinent. Trial by jury was waived. Plaintiffs' counsel offered in evidence a deed dated March 1, 1856, and recorded March 4, 1856, made by Frederick Grote and wife and

App. Div.]

Second Department, April, 1910. Henry E. Baack and wife to Matilda Becker, purporting to convey said premises. He followed this with other deeds of conveyance in an unbroken chain until 1859. The last of these was made by Stille Manning to Charles L. Aubuchon. This deed was dated October 1, 1859, and was recorded on October twenty-second in the same year. Seasonable objection was taken to the admission of each of these deeds, and defendant excepted to the decision of the court overruling such objection. Plaintiffs' counsel then offered in evidence the petition, proceedings and decree of the Surrogate's Court of New York county, filed November 6, 1908, in the matter of the application of James G. Coburn for the probate of the heirship of Charles L. Aubuchon, deceased. Defendant was not a party to these proceedings and does not appear to have had notice thereof. Defendant's counsel, making no objection to the regularity or sufficiency of the proceedings, objected to them as immaterial, irrelevant and incompetent as against the defendant. The objection was overruled and an exception taken.

From this decree it appears that Charles L. Aubuchon died at Iron Mountain, St. Francis county, Mo., in the year 1866 and that he left as his only heirs at law two sons, Charles L. Aubuchon and William N. Aubuchon, each of whoin resides in St. Louis. Plaintiffs' counsel then offered in evidence two deeds, one made by Charles L. Aubuchon and wife, dated July 31, 1905, and recorded August 25, 1905, and one made by Williain N. Aubuchon and wife, dated September 21, 1905, and recorded December seventh in the same year. James G. Coburn was the grantee named in each of said deeds. The complaint alleged and the answer admitted that at the tiine of these conveyences the premises were in the actual possion of the defendant who held or claimed to hold the same adversely. In accordance with the provisions of section 1501 of the Code of Civil Procedure this action was brought by Coburn in the name of his grantors. Plaintiffs' counsel then offered in evidence two judgment rolls in actions brought in the Supreme Court by Aaron Peck, Jr., against Charles L. Aubuchon to foreclose mortgages upon property situated in Kings county. From these it appears that at that time the said Charles L. Aubuchon was not & resident of the State of New York. It also appears from the judgment rolls and admissions made by defendant's counsel that

Second Department, April, 1910.

(Vol. 137. service of the summons and complaint in each of said actions was made on him by publication; that there was a deficiency upon the sale for which judgment was entered; that executions were issued upon said judgment, and that the premises in question were sold thereunder. From the sheriff's deed offered in evidence it appears that these judgments were entered October 9, 1860; the executions issued November 15, 1860, and the premises sold to Charles A. Nichols, January 26, 1861. The sheriff's certificate of sale was assigned by various mesne assignments to Aaron Peck, who, on July 28, 1868, obtained a deed of said premises. It does not appear that the defendant claims under the said Peck or under any other person named in plaintiffs' chain of title. Plaintiffs' counsel then offered evidence as to the value of the premises in question, and rested. A motion by defendant to dismiss the complaint, upon the ground that plaintiffs had not proven their case; that they had not proven that they were ever in possession of the property, or that they had legal title to the same, was denied. Defendant rested without introducing any evidence, and the court thereupon directed judgment in favor of the plaintiffs, from which judgment this appeal is taken.

We think defendant's motion should have been granted. In an action of ejectment it is not enough to prove a paper title to the disputed premises, unless that title is traced back either to the sovereign or to some one admitted or proved to have been a common source of the title claimed by both plaintiff and defendant. In other cases, in addition to the paper title, possession must be proved in some one through whom plaintiff claims. (15 Cyc. 39; Miller v. Long Island R. R. Co., 71 N. Y. 380; Greenleaf v. Brooklyn, Flatbush & C. I. R. R. Co., 132 id. 408; S. C., 141 id. 395; Roberts v. Baumgarten, 110 id. 380; New York Central & H. R. R. R. Co. v. Brennan, 12 App. Div. 103.) Plaintiffs' counsel invokes the aid of section 368 of the Code of Civil Procedure, which relates to the Statute of Limitations. But the “legal title" there referred to, which in the first instance possession is presumed to follow, is something more than a paper title. It is such a title as, undisputed, would sustain an action of ejectment within the rule above stated. “Where a party is under the necessity of proving title, it is not enough to simply produce a deed; he must show possession in the grantor, or possession accompanying the deed; without this

App. Div.]

Second Department, April, 1910. he proves no title. But when, as matter of law and fact, it is found or conceded that a party named has title, that is sufficient his possession is presumed; and the occupation by any other person is presumed to be in subordination to the legal title, unless it appear that the premises have been held adversely to such legal title for twenty years before suit brought. (Code, $ 81.*)” (Stevens v. Hauser, 39 N. Y. 302.) The learned counsel also claims the benefit of section 2657 of the Code of Civil Procedure, which provides that in proceedings for the probate of heirship, from the time when the exemplifications of the decree and proofs are recorded as therein prescribed, the decree or the record thereof is “ presumptive evidence of the facts so declared to be established thereby.” But the basis of the surrogate's jurisdiction to entertain such a proceeding is that a person dies intestate " seized in fee of real property within the State.” (Code Civ. Proc. § 2654.) And the facts which the decree may establish presumptively are “ the fact of the decedent's death; the place of his residence at the time of his death; his intestacy, either generally, or as to the real property in question; the number of heirs entitled to inherit the property in question; the name, age, residence, and relationship to the decedent, of each; and the interest or share of each in the property." (Code Civ. Proc. § 2656.) The Surrogate's Court does not pretend in these proceedings to adjudicate upon the question of the title to real property. In ejectment plaintiff must recover, if at all, npon the strength of his own title, and not because of the weakness or want of title in defendant. (Roberts v. Baumgarten, supra.)

The judgment appealed from must be reversed and a new trial granted, costs to abide the event.

HIRSCHBERG, P. J., Thomas, Rich and Carr, JJ., concurred.

Judgment reversed and new trial granted, costs to abide the event.

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