concurring specially.
I concur on the second ground stated and discussed in the opinion.
In the other aspect presented by the complaint, the action, in my opinion, is not one of the new class of cases of which the Court is authorized to take cognizance under section two hundred fifty-four of the Practice Act; and it was not necessary for the plaintiff to aver that he was in possession to enable him to maintain the action, had his own title been otherwise sufficient to entitle him to have defendant’s conveyances annulled as a cloud on his title. In this particular the principle announced in Hagar v. Shindler, decided at the present term, applies. The action in this aspect of the case is aimed at a particular conveyance from the same source of title, subsequent in time, and claimed to be a cloud upon the plaintiff’s title. Such an action could have been maintained without the aid of section two hundred fifty-four, and the jurisdiction of the Court does not depend upon its provisions, or upon the possession of the complaining party at the time, of the institution of the suit.