Elizabeth P. Hicks, Appellant, v. Annie T. Pearsall and Others, Respondents

Elizabeth P. Hicks, Appellant, v. Annie T. Pearsall and Others, Respondents. Second Department, November 15, 1912. Partition — pleadings — defense — title in defendant ^dismissal of complaint. Where the plaintiff in an action for partition makes usual allegations of ownership of the fee of the plaintiff and the several defendants, and one of the defendants denies ownership in the plaintiff and her codefendants, and alleges sole ownership, and, upon the trial, without allegation of fraud, the plaintiff introduces in evidence a copy of a deed to the defendant, and nothing indicates that the title thus vested in the defendant has ever been divested, a dismissal of the complaint Is proper. Appeal by the plaintiff, Elizabeth P. Hicks, from, a judgment of the Supreme Court in favor of the defendants, entered in the. office of the clerk of the county of Dutchess on the 30th day of January, 1912, upon the decision of the court, rendered after a trial at the Dutchess Special Term, dismissing the complaint in an action for partition. Walter Farrington [George Card with him on the brief], for the appellant. William L. Gellert and Frank B. Lown, for the respondents. [MAJORITY — Woodward, J.:] Woodward, J.: A simple statement of the conceded facts in this case would seem to afford a complete answer to the contention of the plaintiff upon this appeal. The complaint sets up the usual action in partition, alleged ownership of the fee in the plaintiff and the several defendants. The defendant Annie T. Pearsall denies ownership in the plaintiff and her codefendants, and alleges ownership in herself, and denies that any party to the action, other than herself, has.any interest therein. On the trial of the action upon these pleadings, without allegation of fraud, the plaintiff introduced in evidence a copy of a deed of the premises to the defendant, with nothing to indicate that the title thus vested in the defend- • ant had ever been divested. Of course, with the absolute title in the defendant, the plaintiff has no standing in an action for partition. One Charles Brown was originally the owner of a certain arm near Salt Point, in Dutchess county. He died, leaving a last will and testament, by the terms of which he conveyed this farm to Jane Ann Pearsall “ during her natural life and no longer,” and upon her death the land was “ to go to and be equally divided among all her children, to them, their heirs and assigns forever.” It was provided that if any child died prior to the death of the mother, leaving lawful issue, such issue was to take the deceased parent’s share. Jane Ann Pearsall and her husband took possession of this farm, and the husband'purchased an adjoining tract of land. In 1872 Jane Ann Pearsall, with her husband, Gilbert T. Pearsall, and three of her children, then of age, conveyed the Salt Point farm and the husband’s separate tract of land to one John Doty in exchange for the premises sought to be partitioned and another tract of land at or near Clinton Corners. Subsequently the minor children of Jane Ann Pearsall, on becoming of age, confirmed the transfer of these properties to Doty. At the time of the transfer of the Salt Point properties Doty deeded the store property (the premises sought to be partitioned) to Jane Ann Pearsall, while the second piece of property, consisting of thirty-five acres near the store, was conveyed to Mr.- Pearsall, her husband, and the theory of the plaintiff, who was one of the minor children of Jane Ann Pearsall, who subsequently joined in granting the Salt Point land to Doty, is that the premises in suit were intended to take the place of the lands conveyed to Doty, and which, under the will, were to belong to the children of Jane Ann Pearsall upon her death. But the plaintiff in this action, along with all the others having any interest in the Salt Point property, have conveyed the premises to Doty, and Doty, for a good consideration, has conveyed the premises involved in this action to the defendant’s mother, Jane Ann Pearsall, who, in turn, deeded the same to the defendant. There is no suggestion of fraud. There is some loose testimony which suggests that at the time of the transfer of the Salt Point property, or subsequently, it was understood that the store property was to take the place of the Salt Point property, but there is nothing in the deeds to indicate any such intention, and there was no effort upon the trial to amend the pleadings to conform to this proof, and. the case as it is here presented shows all interest in the Salt Point premises out of the plaintiff, and all interest in the store property vested in the defendant, and there, was nothing for ,the court to do but to dismiss the complaint. The judgment appealed from should he affirmed, with costs. Jenks, P. J., Burr, Thomas and Rich, JJ., concurred. Judgment affirmed, with costs. ;