Culver v. . Rhodes
New York Court of Appeals
Appeal from judgment of the General Term of the Supreme Court, in the third judicial department, entered upon an order made September 19, 1879, which affirmed a judgment in. favor of plaintiffs, entered upon the report of a referee. The nature of the action and the material facts are stated in the opinion. Defendant having possessed and claimed the land in suit adversely to plaintiffs, her title cannot be tried, passed upon or determined in an action of partition.
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Appeal from judgment of the General Term of the Supreme Court, in the third judicial department, entered upon an order made September 19, 1879, which affirmed a judgment in. favor of plaintiffs, entered upon the report of a referee. The nature of the action and the material facts are stated in the opinion. Defendant having possessed and claimed the land in suit adversely to plaintiffs, her title cannot be tried, passed upon or determined in an action of partition. (Florence v. Hopkins, 46 N. Y. 182; Van Schuyler v. Mulford, 59 id. 420; Wilkin v. Wilkin, 1 Johns. Ch. 111; Phelps v. Green, 3…
1Opinion of the CourtFinch, J.
This appeal would rest upon a sound basis if the facts fitted the formdation. The action was brought for a partition of real estate, in which, it was alleged, the appellant was interested as a tenant in common. As to a small part of the farm sought to be divided, she pleaded, in bar of the right of action, a hostile title and actual adverse possession. The defense was good if proved to be true. At the time of the trial the rule had been settled in this court, that partition could not be enforced where ejectment was the appropriate remedy; that it was possible to transform a subsisting tenancy…
2Cases cited16 opinions
- Barr v. Gratz's HeirsSupreme Court of the United States · 1819
- Crary v. . GoodmanNew York Court of Appeals · 1860
- Clapp v. BromaghamCourt for the Trial of Impeachments and Correction of Errors · 1827
- Cook v. . TravisNew York Court of Appeals · 1859
- Florence v. . HopkinsNew York Court of Appeals · 1871
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3Cited by51 opinions
- Vought v. . WilliamsNew York Court of Appeals · 1890
- Hinkley v. . State of New YorkNew York Court of Appeals · 1922
- Kraker v. RollAppellate Division of the Supreme Court of the State of New York · 1984
- Unger v. MooneyCalifornia Supreme Court · 1883
- Nielsen v. GibsonCalifornia Court of Appeal · 2009
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