Lowber v. Kelly
The Superior Court of New York City
This action was brought by the plaintiff, who was out of possession of certain lands she cl aimed,, against William Kelly and Gabriel Winter, defendants, the latter of whom was in possession thereof, to obtain a judgment, that the title to it is vested in the defendant, Winter, and he is entitled to the possession thereof,, and that as between him and the plaintiff, the title in fee simple thereto is in the latter, and that the defendant, Kelly, be required to surrender to…
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This action was brought by the plaintiff, who was out of possession of certain lands she cl aimed,, against William Kelly and Gabriel Winter, defendants, the latter of whom was in possession thereof, to obtain a judgment, that the title to it is vested in the defendant, Winter, and he is entitled to the possession thereof,, and that as between him and the plaintiff, the title in fee simple thereto is in the latter, and that the defendant, Kelly, be required to surrender to the plaintiff the possession of the premises,, and pay her damages for withholding the same. The complaint alleges the…
1Opinion of the CourtRobertson, J.
The Revised Statutes (vol. 1, p. 739, § 148) provide that every grant of Énds shall be absolutely void, if at the time of the delivery thereof they shall be in the actual possession of another claiming under a title adverse to that of the grantor; this is substantially the same as the Revised Laws of 1813. (Yol. I, 173, § 8.) The plaintiff’s case requires that such statute should be read as though it made such grant void only in a court of law, but allowed the full benefit of it to be obtained in a court of equity, by simultaneously calling upon the grantor to recognize the title of the…
2Cases cited3 opinions
- Durkee v. Saratoga & Washington Rail RoadNew York Supreme Court · 1849
- Coster v. N. Y. & Erie RailroadThe Superior Court of New York City · 1856
- Colwell v. New-York & Erie RailroadNew York Supreme Court · 1854
3Cited by2 opinions
- People v. . LadewNew York Court of Appeals · 1924
- Van Voorhis v. KellyNew York Supreme Court · 1883