Ithas been held in this state that in an action for the breach of the covenant of seizin in a deed of *76land, the plaintiff in his complaint may assign the breach by simply negativing the words of the covenant, and if the answer aver the contrary,—i. e., that the defendant was the true and lawful owner,—in the exact words of the covenant, the defendant holds the affirmative of the issue and the burden of proof, and must prove his title (Potter v. Kitchen, 5 Bosw. 566; Abbott v. Allen, 14 Johns. 248). The supreme court of Michigan (25 Mich. 32, Ingalls v. Eaton) has decided, however, that where, in such an action, the breach is assigned in general terms and the defendant pleads the general issue, the mere production of the deed is not sufficient to sustain a recovery by plaintiff, and does not cast upon defendant the burden of proving his title. The opinion of Cooley, J., delivered in the case, shows that the decision is not put upon the distinction in the pleas, but upon grounds which assail the authority of the cases above cited, in this state.
The whole question depends upon the sufficiency of the complaint under the Code, a question still open, and which should be now determined; because, if we reverse this judgment upon the authority of Potter v. Kitchen, a new trial must be ordered, and defendant can, and of course will, take the objection at the next trial that the complaint does not state facts sufficient to constitute a cause of action, a right reserved to him although he has not demurred (Code, § 499).
A doubt as to the sufficiency of the complaint in the form presented in this action and in Potter v. Kitchen, was started in the latter case in the opinion written-by Slosson, J., and concurred in by Hoffman and Woodruff, JJ. He says: “ Since the Code every complaint must contain a statement of the facts constituting the cause of action. Whether an allegation of want of title in the defendant is an averment of a fact or of a conclusion of law, I will not stop to inquire; since the objection to the sufficiency of the complaint was neither taken by demurrer nor on the trial. Had such an objection been taken it might have presented, perhaps, a question of some difficulty (Lawrence v. Wright, 2 Duer, 673; Schenck v. Naylor, Id. 675).”
The first of the cases cited by the learned justice holds that
*77in an action to recover the possession of real estate the facts set forth in the complaint must show that the plaintiff has a legal title to the premises in question; the mere averment that he has such a title is insufficient; that the facts which the Code requires to be set forth are not true propositions but physical facts, capable as such of being established by evidence, oral or documentary. The case of Schenck v. Naylor holds that in an action to recover damages for the breach of a covenant, if the complaint does not show either by express words or by a necessary implication that the covenant is broken by defendant, it is bad upon demurrer; and that the defect is not cured by a general allegation that the acts set forth were “ a violation of defendant’s covenant,” for these words aver only a conclusion of law, and are irrelevant and nugatory, if the conclusion is not justified by any facts stated in the complaint.
In actions to recover the possession of property distrained doing damage, an answer that the defendant or the person by whose command he acted was lawfully possessed of the real property upon which the distress was made, shall be good without setting forth the. title (Code of Procedure, § 166), but this is the only exception to the. rule that facts, and not conclusions of the law, must be pleaded (Code, §§ 481, 500). So that, although the action upon the covenant of seizin was, under the old practice, exceptional in that all the plaintiff need allege is a breach of the covenant, by simply negativing the words of it, the Code makes no exception in such an action; the plaintiff being required in all cases to set forth in his complaint “ a plain and concise statement of the facts constituting each cause of action, without unnecessary repetition.”
But it is said in the authorities cited in Potter v. Kitchen that this action on the covenant of seizin is exceptional also, in that the defendant has the affirmative of the issue in all cases, because the plaintiff cannot be required to prove a negative, i. e., that defendant had no title, and besides, is not presumed to know the exact condition of his grantor’s title, who is not bound to explain it unless by suit (Abbott v. Allen, supra).
However good these reasons may be or may have been when first suggested, for casting the onus of proof on defend*78ant, and consequently of permitting plaintiff to aver a mere conclusion of law, the Legislature in framing the Codes considered that they had lost what force they possessed, and concluded therefore to make no exception, as to pleading and proof, between this and other actions. In these days of the recording acts, when the conveyance: constituting the grantor’s claim of title are notice to the whole world, and the presumption that the grantee does not know that title is hardly to be entertained, the Legislature has deemed it proper to require the grantee to point out the defect he complains of,- and tender an issue of fact to be sustained, and to be met by proof. It is certain that the system of pleading established by the Codes permits no such thing as a recovery without pleading or proving a single fact, and yet this was the rule in actions of this character before the Codes, for under the pleadings, if neither party gave any evidence, the plaintiff was entitled to recover.
I am in favor, therefore, of affirming this judgment, dismissing the complaint, because no facts are averred, constituting a cause of action.
Van Brunt, J., concurred.
Judgment affirmed, with costs.