The action is ejectment. It is averred in the complaint that each of the several plaintiffs is the owner in fee of an undivided interest in the premises in question, the interest of each being specified, and that defendants unlawfully withhold the possession thereof from them. The answer is substantially a general denial of plaintiffs’ ownership, and a claim of title in defendants by adverse user. On the trial the plaintiffs did not prove any title in themselves. They showed a conveyance from Grouverneur Morris to Lyman Rhoades, William II. Weed, and Charles W. Weed of a tract of land which includes the premises
The plaintiffs claim that Nielson H. Freeman, as the grantee of Gideon Freeman, is in the position of a vendee of the premises,, having taken the possession thereof under the contract to Gideon, that he is therefore estopped from disputing the title of Gideon’s-vendor, and that the possession which he thus obtained cannot be the basis of a possession adverse to such vendor. This claim, I think, is clearly correct. I understand it to be well settled that one who goes into possession of land under a contract to purchase the same cannot attack or dispute the title of his vendor without-surrendering the possession which lje thus obtained. If he refuses to perform the contract on the ground that the vendor cannot give-a good title, he cannot do so and still hold possession. If he is in default in his payments for that reason, or for any other, and the vendor brings ejectment against him, he may, by answer, setup any equitable defense he may have. He may tender full performance, and ask a judgment that the vendor convey to him, or he may show that he has defaulted, owing to the vendor’s inability to perform, and he may ask that upon his surrender of possession
But the serious question in this case is whether these plaintiffs stand in the position of vendor to the defendants. Have they suco ceeded to the title and interest of the defendants’ vendors ? Did Gideon Freeman acquire the possession and contract to purchase from those whom they now claim to represent? There is no evidence in the case showing that Rhoades, William H. Weed, and Charles W. Weed ever owned the premises as copartners, and there is no evidence showing any authority to Charles W. Weed to contract to sell any one’s interest in the property except his own. Indeed, there is no evidence in the case to show that they, or any of them, had any title whatever to the property, except so far as it may be presumed by way of estoppel against Gideon Freeman by reason of the contracts above referred to. We have no right, therefore, to start with the assumption that the three owned the property, and that, therefore, Charles W. Weed was acting for them as well as for himself. There is not a particle of evidence to show that either of them, except Charles W. Weed, ever made any claim to the property, or ever knew of the existence of the deed from Morris to them. Nor does Charles W. Weed, in the contract, assume to sell any interest belonging to them. He contracts to sell the whole title as if he owned it. He assumes to act for himself only, and Gideon Freeman contracted with him alone. Rhoades died in 1849, and therefore it is clear that, in making the contracts above alluded to, Charles W; Weed was not acting for him, nor for a firm of which he was a member. It is true that Weed is described as “ assignee,” but the plaintiffs’ counsel claims that that is a mere descriptio personae, and I think it must be so treated. Clearly, it is not any evidence that he was claiming to act for Rhoades, Weed & Weed, nor does it indicate that he was acting for any one bnt himself.
I think it very clear that Gideon Freeman contracted with Charles W. Weed as the owner of the premises, and received his possession from him as such owner. He was the vendor, and, as against him, Gideon Freeman, and also the defendant Nelson H. Freeman, are estopped from setting up title in another or in themselves. Whatever idea Nelson may have had of Charles W. Weed’s title when he took the deed from Gideon, the possession which he had thus acquired came from Charles W. Weed, and so long as he holds it he must hold it in subordination to Charles W. Weed’s claim. Tompkins v. Snow, 63 Barb. 525; Dyke v. Spargur, 143 N. Y.
The evidence discloses that all of the plaintiffs except two, viz. Martha E. Weed and Charles H. Dougliss, claim to be owners and interested in the premises as heirs at law of either Lyman Rhoades or William W. Weed. In that character they do not stand in the position of vendors to the defendant. They have not shown that the defendant contracted- to purchase from their ancestors, nor that he derived .his possession from them. And, having utterly failed to show any title in their ancestors or in themselves, they have failed to maintain the claim which they make in this action. There is no force in the suggestion that in bringing this action such plaintiffs have ratified the contract made by Charles W. Weed, and therefore stands as vendors to the defendant. It is a sufficient answer that Charles W. Weed never assumed to contract for their ancestors or for them, and hence there is no contract for them to ratify.
The question remains as to what effect the fact that two of the descendants of Charles W. Weed are plaintiffs herein should have in (he disposition of this pase. One of these descendants, Charles H. Dougliss, is a son of a daughter of Weed. His mother is dead, and, as he testified, by will gave all her property to her husband, his father. The father is dead, leaving a will. How he disposed of this property does not appear. Under such circumstances, it is quite clear that Charles H. Dougliss has not shown that lie succeeded to the title, or any part thereof, which Charles W. Weed had in the premises. As to these plaintiffs, therefore, the order dismissing the complaint was clearly right. The other plaintiff, Martha E. Weed, is a daughter of Charles W. Weed, and, inasmuch as we must assume that he died intestate (Mitchell v. Thorne, 134 N. Y. 541; 32 N. E. 10), she inherited a share of his rights in these premises. In the complaint she claims that she owns an undivided one-twelfth of them. The evidence shows that she has inherited at least an undivided oue-twelfth of Charles W. Weed’s interest therein, which interest, as against this defendant, must be deemed to be the whole title. Code Civ. Proc. § 1500, allows a person entitled to the possession of land as a. tenant in common to maintain an action to recover his undivided share therein. Under this section, therefore, it seems that the plaintiff Martha E. Weed made out a prima facie case against these defendants for such undivided share of the premises as she inherited from Charles W. Weed, and that the dismissal of the complaint, as against her, was an error.
All concur.