There is no doubt but that the defendants own two-fifths of the lands in question. The same belonged to Joseph Corlies at the time of his death, in 1860. Certain lands of the deceased were devised by his will to his widow, but the remainder of his lands were devised to his five children. *902These lands were part of the remainder. The devise to the sons, of whom there were three, was absolute, and vested at the testator’s death. The two daughters, who are the plaintiffs, were given a life-estate, with power of apportionment. The executors of the will were the widow and the three sons, and all qualified. The will gave a full power of sale as to all lands except those devised to the widow. The proof shows that the executors, the widow and two of the sons, executed a deed to defendants’ predecessors in title. One son was absent from the country, and did not execute the deed. The same was given in 1868, and purported to convey all the testator’s interest in the land, “and also the estate, right, title, interest, claim, and demand whatsoever, both in law and equity, which the said testator had in his life-time, or at the time of his decease, and which the parties of the first part, or either of them, have or hath, by virtue of the said last will and testament or otherwise, of, in, or to the same and every part thereof;” contains individual covenants by the grantor “severally and not jointly” against incumbrances, for warranty of title, and for quiet enjoyment. Assuming, therefore, that the executors’ deed failed because one executor did not join with the other, the deed of the individuals was good, and conveyed two-fifths of the title at least. There is no claim in the answer that the defendants claim the whole title under the deed. It denies ouster, and avers that the daughters (plaintiffs) had the benefit of the sales money paid for the land, and asks that an account be taken, so that justice could be done. The case is one, therefore, where one tenant in common sues his co-tenant to recover possession of the lánds then owned in common. The Code concisely declares the rule which has long existed. The plaintiff, besides proving his right, must prove also that the defendant actually ousted him, or did some other act amounting to a total denial of his right. Code, § 1515; Edwards v. Bishop, 4 N. Y. 61. There is no proof whatever, outside of the pleadings, as to the defendants’ possession. The judgment should therefore be affirmed, with costs.
Pratt, J., concurs.