One ground of demurrer is, that the complaint does not state facts sufficient to constitute a cause of action. The action is brought to recover possession of certain real estate described in the complaint.
The defendant Kelly insists that the complaint shows, that at the time of the delivery of the deed to the plaintiff, under which she claims title and a right to immediate possession, Kelly was in the actual possession of the land in question, under a claim of title adverse to that of the plaintiff’s grantor. The plaintiff insists that the complaint does not show that *458Kelly was in the possession of the land at the time of the conveyance to her, but only that he now claims that such was the fact.
If the plaintiff’s whole right to recover is based on a deed to her, which was executed and delivered at a time when the lands were actually possessed by Kelly under a claim of title adverse to that of the plaintiff’s grantor, she cannot recover in this action. Such a deed is absolutely void as to the defendant Kelly, and would convey no rights, as against him. (1 Rev. Stat., 739, § 147; Burhans a. Burhans, 2 Barb. Ch., 398; Jackson a. Demont, 9 Johns., 55; Jackson a. Oltiz, 8 Wend., 440; Cole a. Irvine, 6 Hill, 634.) The grantee in such a deed cannot maintain an action upon it against the person thus holding adversely or those succeeding to his rights, whether knowledge of the adverse possession was brought home to her or not, although as against all the rest of the world, the deed is valid, and passes the title from the grantor to the grantee. (Livingston a. Proseus, 2 Hill, 526; Keneda a. Gardner, 4 Ib., 469; Wil. Real Est., 360, 361.)
The complaint states that on the 17th January, 1848, one Gabriel H. Winter was “ the owner in fee” of the land in question ; that he “ continued to own and hold said premises in fee-simple down to the 20tli day of June, 1848, when he died, leaving him surviving, the defendant, Gabriel Winter, sole and only heir at law.”
That Gabriel Winter having thus “ become the owner in fee” of the said real estate, continued to be such owner down to the 14th of September, 1860, on which day “ he duly executed, under his hand and seal, and acknowledged and delivered to the plaintiff his certain deed in writing, whereby the said Winter granted and conveyed to the plaintiff, to hold to her and her heirs forever, the real estate” in question; that the plaintiff has not conveyed, or in any way parted with, any right or interest acquired by virtue of said conveyance, and “ she now claims to be the owner, in fee-simple, of said premises, and is entitled to the exclusive possession and enjoyment thereof.”
That Kelly “ now claims and insists, that at the time of the execution and delivery to the plaintiff, of the aforesaid conveyance and of the grant of the premises therein referred to, such premises were in his actual possession, and that he then claimed *459said lands under a title adverse to that of the said defendant, Gabriel Winter, the grantor of the plaintiff.”
That the plaintiff “ was, at the time of the execution and delivery of the aforesaid conveyance, entirely ignorant, and was not informed, nor had she any knowledge or intimation of any kind, till long thereafter, that said defendant, William Kelly, claimed such premises under a title adverse to that of the said defendant, Gabriel Winter.
“ That she has often, subsequent to the delivery to her of the conveyance aforesaid, requested the said defendant, Kelly, who then was, ever since has been, and still is, in possession of said premises, to deliver up to her the possession thereof, but that he has utterly refused to comply with said request.”
The complaint further alleges that the plaintiff, since the delivery of the deed to her, “ has applied to the defendant, Gabriel Winter, for leave to commence an action in his name.... for the purpose of evicting him, the defendant Kelly, from the aforesaid premises, and offered to indemnify said Winter against the payment of any costs, and that said Winter has failed and refused to comply with this request, and she is advised and insists that the said.... Winter is a necessary party to a complete determination or settlement of the questions involved in this suit.”
That by reason óf the non-delivery of possession to her, she has sustained damages to the amount of two thousand dollars.
It prays for a judgment, “that as between the defendants William Kelly and Gabriel Winter the title to said property in fee-simple is vested in the said Winter, and that he is entitled to the possession thereof; and that as between the said defendant Gabriel Winter, and the plaintiff, the title to said property in fee-simple is vested in said plaintiff; and that the said defendant William Kelly surrender to the plaintiff the possession of said premises, and pay her the said sum of two thousand dollars for the withholding of the same, and for such other and further relief as the court may see fit to grant.”
It will be observed that the plaintiff does not deny that Kelly was in possession claiming under a title adverse to that of her grantor, at the time of the grant to her. She avers that she did not then know that he so claimed, but does not aver that he did not. in fact, then so claim: nor does she aver that she did not *460then know that he was in the actual possession of the property at that time.
I think that the words “ then was,” contained in her allegation of her having requested Kelly to deliver to her the possession of the property, refer, and were intended to refer to the time of the delivery of the deed to her, under which she claims.
On no other theory is there any apology for the averments that she had requested Winter to allow her to sue in his own name. Such a request would he unintelligible except upon the ground that her deed gave her no rights as against Kelly. And the presence of Winter, as a party to this suit, has no apology, except upon the theory that the complaint shows, and was intended to show, that, at the time of the delivery of the deed from him to the plaintiff, Kelly was in the actual possession claiming under a title adverse to that of Winter. On that theory what the prayer of the complaint means can be understood, but on no other. That is framed on the idea, that on the facts stated, Winter had the actual title, but that the deed he gave to the plaintiff was ineffectual to transfer it, and is void as to Kelly—but that as between the plaintiff and Winter she has succeeded to his rights.
And the action is an experiment to ascertain if, in one suit, and that brought by her as the plaintiff, she can obtain a judgment declaring that Winter owns in fee and is entitled to possession as against Kelly ; and that the plaintiff owns and is so entitled as against Winter, and therefore she may recover against Kelly as a logical sequence and strict equity, although she must fail in her action if Winter were not a party.
I construe the complaint as showing that at the time Winter conveyed to the plaintiff, Kelly was in the actual possession of the lands granted under a claim of title adverse to that of her grantor. The deed to the plaintiff was absolutely void as to Kelly; Winter might have executed a mortgage of the lands, but even that would only bind the lands from the time the possession thereof should be recovered by Winter or his representatives. (1 Rev. Stat., 739, §§ 147, 148.) The object of the revisors in recommending permission to mortgage, in such cases, is stated in 3 Rev. Stat., 2d ed., 596, § 185. It was no part of that object to allow the mortgagee to bring a suit of any kind, as such mortgagee, until after his mortgagor or the representatives of the lat*461iter had recovered possession of the premises, for until that event has occurred the mortgage is not to bind the lands.
I cannot think that the plaintiff, by taking a deed which the statute declares to be void, and which confers upon her no right as against Kelly, thereby acquires an equity which entitles her to require her grantor, on being indemnified, to bring a suit to recover possession, or, on his refusing to do that, maintain a suit in her own name (to effect that object) against Kelly and her grantor. And besides all this, her deed for aught that appears is merely a quit-claim deed, without other consideration which can be presumed, than such as is sufficient to make it operative as a conveyance, as between her and her grantor.
I think the demurrer is well taken, and that the defendant Kelly is entitled to judgment. It does not appear to me that leave should be given to amend the complaint. If there be any cause for granting such liberty, it may be shown on settling the order or judgment to be entered herein, which will be settled on three days’ notice to the adverse party. • ' _