In each of these actions the plaintiff asks a judgment annulling a deed made by him or her during infancy and without consideration. From a judgment dismissing the complaint upon the merits each plaintiff appeals.
’ The actions arise upon identical facts, except the ages of the respective plaintiffs at the time the deeds attacked were executed. ■ Hugh Smith died July 16, 1890, leaving a last will and testament wherein, after providing an amount of $1,200 per annum for his brother Henry A. Smith, he gave a life estate in his whole property to his sister Catharine T. Smith, the estate consisting, among other things, of two valuable pieces of real estate. Upon the deáth of his sister Catharine he gave one-half of his estate to his sister Margaret C. Smith, and the other half to the children of. his deceased sister Mary Ann Murphy, one of whom was Louisa A. O’Donohue, the mother of these plaintiffs. The gift to her was in the following words: “ I give, devise and bequeath one other equal undivided fifth part of the said remaining half part of the rest, residue and remainder of my estate unto my niece Louisa A. O’Donohue, wife of Thomas J. O’Donohue, to have and to- hold unto her, her heirs *216and assigns forever, and if she should die before my said sister Catharine, then 1 give, devise and bequeath the said one-fifth part to the issue of the said Louisa to be equally divided between them share and share alike.” -
Louisa A. O’Donohue died on November 13, .1894, during the lifetime of Catharine T. Smith, leaving her surviving these three plaintiffs, her children, each of whom thereupon acquired a vested remainder in.one-fifteenth of the real estate of which Hugh Smith died seized, subject to the life estate of Catharine T. Smith.
By deeds dated May 20, 1895, and acknowledged June 3, 1895, each of the plaintiffs conveyed to Henry A. Smith one-fourth of the grantor’s right, title and interest in the real estate of which Hugh Smith died seized.
Henry A. Smith died July 27, 1903, leaving a will by which, after certain legacies, he left all of his estate to the Tan Norden Trust Company, as trustee, for the benefit of his widow and his daughter, Marie D. Heilmann. Catharine T. Smith died April 11, 1906, when each of the plaintiffs became vested in fee of the property in which he or she had theretofore had only a vested remainder.
These actions were commenced on April 25, 1906.
First. John J.. O’Donohue was born April 9, 1875, and • became of age on April 9, 1896.
Second. Mary L. Kelly was born April 10, 1876, and became of age on April 10, 1897.
Third. Thomas J. O’Donohue, Jr., was born August 22, 1880, and became of age on August 22, 1901.
The defendants urge three objections to a recovery by the plaintiffs:
First: It is said that in order to maintain an action by a grantor to set aside a deed executed during infancy, there must be a disaffirmance antecedent to the commencement of the action.
Second. That the complaint fails to state a cause of action, because it does not allege that plaintiff is in possession or who is in possession.
Third. That the action' is barred by the Statute of Limitations, or, if no statute applies, by the lapse of time;
We think that the first objection is well taken. The very basis of a cause of action to cancel an executed contract by an infant is his disaffirmance after arriving, of age. Therein it differs from an *217executory contract, which does not become valid unless affirmed. (Beardsley v. Hotchkiss, 96 N. Y. 201; Parsons v. Teller, 188 id. 318.) Consequently, in the case of an executed contract like a deed, it is an essential element of a cause of action to revoke or cancel it that the plaintiff has, since he came of age, disaffirmed the deed, for unless he has disaffirmed it no cause of action has arisen. In Bool v. Mix (17 Wend. 119), an action of ejectment, Mr. Justice Bronson stated as one of the questions involved in the case, “Was it necessary for the plaintiff to do any act to avoid the deed before bringing this action % ” and held that it was, saying, after a full discussion of the authorities : “ If one who has aliened his estate while an infant wishes afterwards to avoid the conveyance, it is imposing no unreasonable burden to require that it shall be done by an entry-on the land, or by some other act of equal notoriety ; and the avoidance, whatever may be its form, must precede the bringing of an action to recover possession. J ustice to the tenant requires it, and there is no other way in which we can carry out the doctrine that the deed of an infant is voidable only, and not void.”
The same rule was stated and applied in Dominick v. Michael (4 Sandf. 374), and again in Voorhies v. Voorhies (24 Barb. 150), wherein the court said: “ It is also clear that before suit can be brought for the recovery of the possession of lands conveyed in infancy, the party must make an entry upon the lands and execute a second deed to a third person, or do some other act of equal notoriety in disaffirmance of the first deed, such as demanding possession or giving notice of an intention not to be bound by the first deed, or an action cannot be maintained (citing cases). In the latter case (Dominick v. Michael) it was said, as seems to be clearly correct upon principle, that under the present system of pleading this act of disaffirmance must be averred and is necessary to be proved. I think the want of this allegation makes the complaint fatally defective.” Mo case to the contrary is to he found in the reports of this State where the question has been presented. Voorhies v. Voorhies has been cited in Eagan v. Scully (29 App. Div. 617) and in Green v. Green (7 Hun, 494). In both cases the plaintiff had, before suit-brought, performed acts of disaffirmance, and in the latter case, when in the Court of Appeals (69 N. Y. 553), Bool v. Mix (supra) is expressly cited. The same rule seems to have been applied *218in some other jurisdictions (Long v. Williams, 74 Ind. 115 ; Doe v. Abernathy, 7 Blackf. [Ind.] 446 ; Haynes v. Bennett, 53 Mich. 15), while in others it is held that the commencement of a suit to avoid the deed is a sufficiently, timely disaffirmance. We conclude, therefore, that the complaints were defective in that they alleged no act of ,disaffirmance before action brought.
The second objection, that the-complaint is defective in not alleging that plaintiff is in possession, or who is in possession, seems also to be supported by authority.
This is an action in equity to remove a cloud on plaintiff’s title. The plaintiffs do not sue under section 1688 of the Gode of Civil Procedure, because the action authorized by that section can only be maintained where the plaintiff has been for at least one year in possession of the property.
The general rule undoubtedly is that an action in equity to remove á cloud on title will lie only where the plaintiff is in actual possession. He may sue in equity then because no action at law is available to him, unless there be one expressly established by statute. Therefore, it is considered essential that a plaintiff shall either (1) allege that he is in possession and that some other person claims adversely to him, when an action guia timet will lie, or (2) he must allege facts showing that his title is contested, and that, although he is out of possession, there are special reasons why he cannot sue at law as in ejectment or otherwise.
In- Moores v. Townshend (102 N. Y. 387) the plaintiff sought the cancellation of a tax deed as a cloud on title. The court said : “ It is further urged by the appellant that the facts disclosed on the trial did not show any right on the part of the respondent to equitable relief. We think this point also is well taken. The only ground alleged for the relief demanded was the want of an adequate remedy at law, and yet the facts stated' showed presumptively the existence of such a remedy and the falsity of the averment. No reason is averred in the complaint why the plaintiff could not obtain all of the relief to which he was entitled by an action of ejectment; and an examination of the findings and evidence shows that none in fact existed. (Phillips v. Gorham, 17 N. Y. 270.) The complaint was manifestly insufficient in this respect. (Bockes v. Lansing, 74 N. Y. 437, 443; Ocean Nat. Bk. v. Olcott, 46 id. 12, 19; Allerton *219v. Belden, 49 id. 373,378; Town of Venice v. Woodruff, 62 id. 462, 467.) We have been unable to find any ease where a'party out of possession has been allowed to sustain an action quia timet to remove a cloud upon title, except when it was specially authorized by statute, or when special circumstances existed affording grounds for equitable jurisdiction aside from the mere allegation of legal title. * * * In all the cases cited to the effect that equity will entertain jurisdiction to set aside assessments and conveyances as a cloud upon title the party bringing the action was in possession of the property, or other circumstances gave equitable jurisdiction.”
In Howarth v. Howarth (67 App. Div. 354) it was sought by an action in equity to set aside a deed. The court said : “ The plaintiff is not alleged to have been in possession of the premises. ■ He, therefore, can bring no action to remove a cloud from title. * * * His action cannot be deemed one in ejectment and to remove a cloud from title as incidental thereto, because there is no allegation that the defendant is in possession. The complaint lacks, any allegation whatever as to who is in possession of the property. * * * JFor the failure then to show where is the possession of this property we can find no causé of action stated in the complaint.” The same rule is explicitly stated in Pomeroy’s Equity Jurisprudence (3d ed. § 1399, n. 1). In the present case the plaintiffs neither allege nor prove in whose possession the property is, nor do they state any special reasons why equity should take hold of the case. If their actions had been brought during the lifetime of Catharine T. Smith, the life tenant, that circumstance would have j ustified an appeal to equity,. because then the plaintiffs’ rights would have been only those of remaindermen, and no possessory action could be maintained by them. (Remington Paper Co. v. O'Dougherty, 81 N. Y. 474.) But the action was not commenced until after the death of the life tenant, when plaintiffs’ titles had ripened into a fee, with presumptively the right to possession. The fact that the. plaintiffs hold only undivided interests in the real estate is no obstacle to an action of ejectment. (Bennett v. Vonder Bosch, 26 App. Div. 311.)
The third objection, that the' action is barred by the Statute of Limitations, seems to have been the principal ground upon which the judgment below was rendered. This question has been dis*220cussed on the briefs as if it involved a construction of section 396 of the. Qode of Civil Procedure. I do not so. understand it. That section (as also section 375) applies only when the cause of action has accrued during, infancy.
! In a case like the present the cause of action does accrue during infancy, but only after the infant has arrived, at .age. .It is not the making of the deed which gives the cause of action, but its disaffirmance,, and, whether or not an infant .may disaffirm during infancy, he certainly is not required to, elect, so long,as. his, infancy Continues, whether he will disaffirm or not, because during infancy there is the same, incapacity to definitely confirm or disaffirm a deed- that there, was to make a deed in the first place. ,
• ' Consequently we find all the cases saying that an infant has until a reasonable time after majority to disaffirm.
:. There has been much discussion, and no little difference of o.pim ion,, as to .whether the time thus allowed shall be such as may appear to be. reasonable according to the circumstances of the particular case, or whether the. infant has, after attaining his majority, the Whole period allowed by the appropriate Statute of Limitations. The .latter rule seems to have prevailed in this State. In Jackson v. Carpenter (11 Johns. 541) the infant did not disaffirm the deed until twelve, years after it bad been executed, and ten years after he came of age. It was held that he was in time. In Eagan v. Scully (29 App. Div. 617) it was said : “ It is a general rule, that a conveyance by an infant is valid until it is avoided by him after arriving at full age, and that he is entitled to exercise his right of avoidance at any time within the term of' the Statute of Limitations after his majority. It has been held that mere delay in taking, advantage of this privilege will not work a waiver or ,a ratification, and that ratification is a matter of intention and, will not be inferred by a bare recognition of or a silent acquiescence in it, for ahy time less than the period of' statutory limitation, (10 Am. & Eng. Ency. of Law, 649; Voorhies v. Voorhies, 24 Barb. 150; McMurray v. McMurray, 66 N. Y. 175; Green v. Green, 69 id. 553; Foley v. Mutual Life Ins. Co., 64 Hun, 63.) ” That cáse was affirmed without opinion (173 N. Y. 581). The rule thus established' is in harmony with what was said by the Cóurt of Appeals in Gilmore, v. Ham (142 N. Y. 1, 6): “ Under the law of *221this State .there is a fixed limitation for every cause of action, whether legal or equitable. After attaching suitable limitations to numerous classes of actions the Code adds (§ 388): ‘ An action, the limitation of which is not specially prescribed in this or the last title, must be commenced within ten years after the cause of action accrues.’ This provision in the Code of 1848* and.continued since, has done away with the old rules as to cases • cognizable only in courts of equity, and subjected all alike to some statutory limitation.” We conclude, therefore, that each of the plaintiffs had the full statutory period of limitation, after arriving at age, within which to disaffirm his or her deed executed during infancy, and have no doubt that the statutory period applicable to such a case is the ten years provided in section 388 of the Code. So far as appears by the complaint and proofs none of the plaintiffs ever disaffirmed until they did so by the commencement of these actions, which clearly may be treated as acts of disaffirmance. (Doe v. Abernathy, supra.) John J. O’Donohue came of age on April 9, 1896, and therefore, had allowed more than ten years to elapse before'bringing suit on April 25, 1906. Mary L. Kelly and Thomas J. O’Donohue, Jr., brought suit and thus disaffirmed within the ten years after their majority. Their disaffirmance at least appears, therefore, to.have been timely.
This question of limitation of time applies, however, only to th.e act of disaffirmance, and not to the time of bringing suit. In Gilmore v. Ham (supra), Judge Finch follows what I have already quoted by saying: “ So far as I have examined the authorities in this State since the adoption of the Code, I have found no denial of the application of its provisions to any form of equitable action, unless cases of a continuing right accruing newly every day may be said to form an exception, * * * although it is quite apparent that they are not inconsistent with the uniform and universal rule.” He cites as instances of a continuing right Miner v. Beekman (50 N. Y. 337) and Schoener v. Lissauer (107 id. 111). Miner v. Beekman was an action ' to redeem land from a mortgage by' the mortgagor, who had not been made a party to the foreclosure suit. The mortgagee had bought it in, and defendant, his grantee," had gone *222into possession claiming title. It was held that if the mortgagor had remained in possession, or if defendant had claimed to hold as mortgagee in possession, the right to redeem and thus remove .the cloud from the title would have been a continuous one, never barred by any statute of limitations, but as the mortgagee from the time of talking possession claimed to hold as owner, the ten-year limitation applied, counting from the time of taking possession. In Schoener v. Lissauer the action was to obtain the cancellation of a mortgage claimed to have been obtained from plaintiff’s ancestor in title through fraud and duress. Plaintiff was in possession of the property. It was held that no statute of limitation applied; that the existence of the mortgage constituted a continuous cloud upon the title, and that no lapse of time could defeat plaintiff’s right to defend against it, or her right to have it removed as a cloud.
Applying the principle of those cases to the present, we are of opinion that, as to the plaintiffs who have disaffirmed in time, no statute of limitations applies until those claiming under their grantee take possession.
Our conclusions are that judgment was rightly rendered in favor of defendants, because: First. The plaintiffs did not allege any disaffirmance before bringing suit. Second. The plaintiffs do not show that they are in possession,- or who is in possession.
We think that all of the plaintiffs haVe now effectually disaffirmed by bringing this suit, unless John J. O’Donohue has delayed too long in doing so, whereby the disaffirmance may have to be ineffectual as to him; that Mary.L. Kelly and Thomas J. O’Donohue have certainly disaffirmed in time, and that no statute of limitations bars their right to assert the invalidity of their deeds in any subsequent and appropriate action.
It follows that the judgment should be modified by striking out the words “ upon the merits,” and as thus modified should be affirmed, with costs.
McLaughlin, J., concurred; Patterson, P. J., concurred in result; Laughlin and Houghton, JJ., dissented.
See Code Proc. § 97 (77).— [Rep.