I dissent from the decision about to be made. I think no allowance should be made to the respondent, the Lyons Milling Co., for its improvements except as an offset against the claim for rents and profits. The value of the improvements cannot be charged on the land. The respondent entered into and retained possession under a deed from the trustee under the will of Mrs. Shuler which conveyed no title, the trust being void. It was not a tenant in common with any of the other parties to the action, but simply a party in possession claiming under an adverse title. Until the enactment of the present Code its title could not have been determined in a partition suit; the plaintiff's remedy would have been ejectment. This was settled law. (Florence v.Hopkins, 46 N.Y. 182; Van Schuyver v. Mulford, *Page 412 59 id. 426.) It is also settled law that the only compensation that can be made to an unsuccessful defendant in an ejectment suit for the improvements he has put on the land from which he is ejected is to set off their value against any claim for rents and profits. (Code Civ. Pro. § 1531; Jackson v. Loomis, 4 Cow. 168.) If a party is compelled to resort to a court of equity for relief, there a more liberal rule is applied and a purchaser in good faith and for value may be protected to the extent of the improvements made by him. Such was the case of Thomas v.Evans (105 N.Y. 601). The action was to set aside a conveyance made under a power of sale as fraudulent. The power of sale was entirely valid and on its face the deed conveyed a good title. The plaintiffs could not have maintained an action at law to recover the property and were compelled to resort to equity for relief. Here it is argued that a partition action is an equitable one, and that the plaintiff, having resorted to equity, must abide by equitable rules. Partition has been frequently denominated as equitable in the decisions in this state, and possibly correctly so before the present Code, though it must be remembered that partition in this state was originally a special proceeding at law. Since the change in our practice effected by the present Code (§§ 1532 et seq.) as construed in Weston v.Stoddard (137 N.Y. 119) and Satterlee v. Kobbe (173 id. 91), a partition action can be considered equitable only in part, for parties have always had the right to contest an adverse legal title so far as it involves questions of fact before a jury, and of this right they cannot, under the Constitution, be deprived. The present procedure is valid because the Code prescribes the trial of the issues mentioned before a jury. (See opinion of O'BRIEN, J., in Satterlee v. Kobbe, supra.) But the trial of an issue as of right before a jury can hardly be considered a proceeding in equity. The only issue between the parties in this case was of that character. Even in partition actions it is not a matter of course to allow a co-tenant compensation for improvements made by him, and some special equity must be shown. (See opinion of Judge *Page 413 VANN in Cosgriff v. Foss, 152 N.Y. 104.) Here no special equity is shown. Doubtless the position of the respondent is an unfortunate one, but in no way differs from that of every purchaser of land from a vendor who cannot give title.
The decision about to be made makes the substantial rights of the parties depend on the form of the action. As already said, the plaintiff could have proceeded in this case by ejectment to recover the possession of the land without making compensation to the respondent for its improvements. Conceding that by its failure to take that course and by its voluntarily appealing to a court of equity, it has impaired its rights, what can be said as to the rights of the defendants, the plaintiff's co-tenants who are appellants here? They never appealed to a court of equity. Some of them are infants. Assuming that the plaintiff must suffer for its mistake in the procedure it has adopted, how can its course be allowed to impair the rights of the infant appellants? The appeal should be sustained at least as to them.
The judgment below is erroneous in other respects. The referee has found that the respondent's improvements have increased the value of the land $10,000, but he has made no finding as to the value of the land with or without the improvements. The evidence as to the value of the land alone varies from two to seven thousand dollars. The judgment directs that out of the sale of the property there first be paid the sum of $10,000 to the respondent milling company or its mortgagees. Neither at judicial sales or private sales does real estate always bring its full value, and the referee may be mistaken in his determination of value. Therefore, if the property should not realize a sum in excess of $10,000 and the costs of this action, the parties whom the court adjudges are owners of the land will be entirely deprived of it. On what possible theory can a judgment of this character be sustained? At least the owner should be first paid the value of the land, and then if there should be a surplus, that to the extent of $10,000 could then be applied to the milling company's equity, but this judgment does not place the owners even on an equality *Page 414 with the intruder. This error alone requires a reversal of the judgment, for we can make no finding on the disputed question of value.
Again, the learned referee has set off the whole amount of the taxes paid by the milling company on the improved property against the rental value of the property unimproved. Surely this is a very queer rule. In no event should the appellants have been charged with more than a part of the taxes proportionate to the value of the land without improvements.
HAIGHT, VANN and WERNER, JJ., concur, with GRAY, J.; CULLEN, Ch. J., reads dissenting opinion, and CHASE, J., concurs on last ground stated in opinion of CULLEN, Ch. J.
Judgment affirmed.