18 Jones & S. 159 50 N.Y. Super. Ct. 159

MARY C. RANK, Respondent, v. GEORGE LEVINUS, impleaded with AUGUSTUS H. GROTE, J. FREDERICK GROTE, and ADAM J. KAPP, Appellant.

Practice and pleadings.—Ejectment, complaint in.—Joinder of parties, and causes of action.

The complaint described certain real property and stated plaintiff’s title and right of possession to an undivided third part thereof, and alleged that the defendants, Grote and Kapp, had taken possession of the whole of the same, and denied all right, title, and interest in the plaintiff, etc., and in a separate section alleged that the defendant Levinus, “is wrongfully in actual possession of a portion of said premises, under and by virtue of the wrongful assumption of authority over said premises by the other defendants herein, and in defiance of the plaintiff’s rights, and refuses to surrender the same after demand duly made upon him for possession of said premises.”

Defendant Levinus demurred to the complaint on the ground, 1st. That it did not state facts sufficient to constitute a cause of action against him, *1602nd. Misjoinder of cause of action and parties. Held, that on demurrer the complaint was good under our present system of pleadings.

Decided March 3, 1884.

Further held, that though the land of which, in part, the appellant is in possession, is definitely described, but there is indefiniteneas of that part, this is not ground of demurrer.

It seems, that it furnishes ground for a motion to make more definite and certain.

Before Sedgwick, Ch. J., Truax and O’ Gorman, JJ.

Appeal by defendant Levinus from an interlocutory judgment overruling his demurrer to the complaint.

The action was in ejectment against appellant and three other defendants.

The complaint described the premises, and alleged that the co-defendants were in the possession of the same, and also stated in a separate and district allegation, that the appellant was in the wrongful possession of “a portion of the said premises under and by virtue of the wrongful assumptions of authority over said premises by the other defendants.” The appellant demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action, and also for misjoinder of causes of action and parties.

G. W. Cotterill, for appellant.

The complaint as a pleading wholly reverses the necessary and usual statement of a cause of action. Instead of treating Levinus as the principal defendant, on account of his possession, he is regarded as a subordinate one, and is called upon to defend, not only as to the property of which he has no possession, but to pay damages for the acts of others. At common law the right to possession only was the subject of trial in ejectment, and the plaintiff had no right to make a third person, not in possession, a party (Wait's Actions and Defenses, title Ejectment, vol. 3, p. 11, and all elementary works). Even under the late amendments to the Code the occupant must be made defendant in the action, and he is the principal defendant (Code, § 1502). *161The plaintiff may, however, make a third person a party claiming ownership if he so desires (lb. § 1503). § 1502 is merely declaratory of the common law, which only tried the right of possession ; while § 1503 now allows the .trial of the title. But this, however, does not permit the plaintiff to join Levinus in regard to property with which he has no connection.

The defendant Levinus being the principal defendant and occupant, the complaint should describe the property occupied by him, so that possession may be delivered by virtue of the execution, failing to do this is a ground of demurrer. The Code requires it (see § 1511), and the importance of it is fully explained in Budd v. Bingham, 18 Barb. 494. In this action the complaint was dismissed on the trial, and especial stress was placed upon the point that the Code requires the property to be described in the execution.

The complaint claims damages by way of mesne profits against the defendant Levinus for the acts of the other defendants in regard to property with which he has no connection.

The complaint does not state facts sufficient to constitute a cause of action against Levinus. The plaintiff is a tenant in common. By § 1500 of the Code, she is permitted to bring the action as such, but by § 1515, and by the common law, it should be shown that the defendants “actually ousted her, or did something amounting to a total denial of her right” (Edwards v. Bishop, 4 Coms. 61). There is no allegation to this effect in the complaint. It only alleges that “the defendant refuses to surrender the same after demand duly made upon Mm for 'possession of said premises.” He had a perfect right to refuse to surrender the same, inasmuch as he was lawfully in possession by permission of the other tenants in common. Plaintiff was not entitled to the whole premises occupied by him, but only to her share, and it does not appear that there has been any denial of this right. In addition to this, the com*162plaint as against Levinns in no respect answers the requirements of a complaint in ejectment.

John L. Hill, for respondent.

The complaint contains all the elements of an action in ejectment. Plaintiff alleges : title to an undivided one-third of the premises. It is quite immaterial whether she obtained her title by descent or by devise. A wrongful entry, continued actual-possession of her share by her two brothers and Kopp, a stranger, and their wrongful usurpation, denial and defiance of her rights. This is plainly insufficient as against these defendants. See Code, §§ 1500,1515. Actual and wrongful possession of a part, her share in the same property by Levinns, who also denies and defies her rights. Independently of the question of joinder, this is enough against him. She demands immediate possession. See Code, § 1502.

The appellant has confused a mere matter of joinder of parties defendant, which is not a demurrable defect (Code, § 488)—with the rules applicable to causes of action. His chief ground of demurrer is that two causes of action have been improperly united, (a) We insist that the complaint states but one cause of action. The precise point is plaintiff’s title. She claims by descent and by devise. She asserts but one cause, i. e., (1) title; (3) the defendant’s usurpation and defiance and total denial of her rights. (5) The action is primarily against the Grotes and Kapp, who claim title to the whole, and Levinns was properly joined with them because he “ has or claims an interest (no matter what interest—some interest—any interest) in the controversy adverse to the plaintiff” (Code, § 447). Observe, it is not an interest in the entire cause of action, but in the controversy. The spirit of the present system is to avoid circuity of action and a multiplicity of suits ; to bring in all the parties whose rights depend upon the same fact or rule of law, and settle the controversy, (e) Ejectment forms no exception to this general rule relating to mere misjoinder.

The description of the premises occupied by Levinns *163is sufficiently definite, (a) The land itself is clearly described. (5) The allegation is that Levinus occupies “ a portion of said premises”—thus bringing the case clearly within §§ 1516-7. (e) The cases of insufficient description relate to lot or parcel, and not to the parts of one parcel which are occupied by different parties. Budd v. Bingham (18 Barb. 494), furnishes an illustration. The special circumstances which affect separate defenses or rights must be brought in by answer under §1516.

By the Court.—Sedgwick, Ch. J.

The cases seem to show that in an action to recover the part of the premises that the complaint alleges were in the posseession of the appellant Levinus, it was proper to join the other defendants. There is enough to show that, as alleged, they were all jointly in possession, denying the plaintiff’s alleged right in a manner that gave her an action, if she had title as tenant in common. As the complaint would show a cause of action against the appellant for some part of the land, the demurrer was properly overruled as to the ground that stated that no cause was shown,

As to the point that the complaint does not describe with common certainty under § 1511, Code Civ. Pro., the part of the premises that the complaint seeks to recover from the appellant, my opinion is that it is not ground for demurrer. The land of which, in part, the appellant is in possession, is definitely described, but there is indefiniteness of that part. The complaint may be indefinite and uncertain, but the remedy is a motion to make it more definite and certain by amendment. I do not express any opinion as to whether or not, in this particular case, such a motion should be granted.

The other ground of demurrer is, that causes of action have been improperly united in this, that an alleged cause of action against the defendant to recover a portion of the property, is united with an alleged cause of action against the other defendants to recover another portion of the property, with which the present defendant has no connection.

*164The demurrer admits the facts stated in the complaint. It alleges that the other defendants are in possession of the whole of the land described in the complaint. For the purpose of this appeal, it will be considered that the allegations are sufficient under § 1502, that cLeclares that if the property is actually occupied, the occupant thereof must be made defendant. It also alleges that the present defendant is in possession of part of the property under the other defendants. There is no statement of the exact interest in the property that the present defendant claims. On the face of the complaint, the fact is as to the other defendants that they have a single unbroken possession of the whole as one parcel of land. There is no room for saying, that the complaint alleges that they hold one part by itself and another part by itself. If they do, in fact, that can be alleged by answer, and then the appropriate consequences will follow. Nor does it appear on the complaint that the present defendant individually holds a separate occupation of a part. According to the complaint he has a joint occupation of part with the other defendants. The complaint in substance avers that the other defendants are in occupation of the whole, and the defendant is in possession with them of a part. If the appellant’s position is correct, the plaintiff would be driven to an action against the appellant alone, and then another action against the other defendants. She ought to have an action against them jointly, it would be admitted at least as to the part occupied by the appellant, but when a subsequent action should be brought for the other part against the other defendants, it would be a serious question, as to whether under the rule against splitting a cause of action, it should not be held that the second alleged cause of action had been merged in the judgment first obtained.

It will be noticed that this is not the case of an owner being in occupation of a part of a single parcel of land, and his tenant being in possession of the other part, the landlord having parted with the occupation to him. By the complaint the owner has not left the occupation of any *165part. I therefore think, that this is not a case for the application of rules that are to be applied to several pieces of land held separately.

Viewing the cause of action as containing a charge of fort against the defendants, it may be considered that the actual tort, as to the whole land, is participated in by the present defendants’ joint action as to a part.

In my opinion section 447 applies to the case of the appellant asa party who claims an interest in the controversy adverse to the plaintiff.

The last ground of demurrer is therefore invalid.

Judgment affirmed, with costs.

Truax and O’Gorman, JJ., concur.

Rank v. Levinus
18 Jones & S. 159 50 N.Y. Super. Ct. 159

Case Details

Rank v. Levinus
Decision Date
Mar 3, 1884

18 Jones & S. 159

50 N.Y. Super. Ct. 159

New York



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