[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 59 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 61
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 62 We deem it unnecessary to decide the interesting question argued at the bar, respecting the construction of a grant by the State of lands bordering on the river St. Lawrence above the ebb and flow of the tide, which bounds the granted premises by the margin or shore of the river, and whether under such a description the title of the grantee extends to the margin of the water at its low stage, or only to high-water mark. The judgment against the infant defendants, who are the only appellants here, must be reversed upon a preliminary question. Assuming that the plaintiffs' title under the Macomb patent extended to the line of low-water, and that they established title to the water front and to the land under water to low-water mark, lying south-west of and adjoining the premises embraced in the deed of July 5, 1861, from John W. Fuller to David and William Woodworth, under which the defendants claim, we think nevertheless the appellants were entitled to a dismissal of the complaint on the ground that it did not appear on the trial by the pleadings or evidence that they were in possession of the demanded premises, or claimed title thereto as remaindermen or otherwise at or before the time of the commencement of the action. Upon the death of Ellen Cumming, January 31, 1875, the title to the Woodworth lot descended to her two children, the infant defendants, subject to a life estate in Peter Cumming, the husband, as tenant by the courtesy. Ellen Cumming acquired title to the lot by deed from David Woodworth, November 10, 1871, which described the land by metes and bounds. The south-west line was near to high water mark on said river, but the river was not referred to in the description. By said deed the conveyance was made, subject to a reservation (so called) to Fuller (the original grantor of the Woodworths) contained in the original deed from Fuller to them, of "all his rights to the land now under water and to the water front beyond or south-west" of the south-west line of the lot conveyed. She entered into possession under her deed from Woodworth, and occupied the lot and the house upon it with her husband and children *Page 63 until her death. The premises in controversy are those embraced in this reservation. It neither appears that Ellen Cumming ever entered upon or that she claimed any right or interest in the premises in question. There is evidence that subsequent to her death Peter Cumming, her husband, one of the original defendants in the action, entered upon the premises in dispute and built a hog-pen and privy thereon, and tore down a wharf constructed by the plaintiffs between the lot conveyed to Ellen Cumming and the river. It may be admitted that enough was shown to entitle the plaintiffs to maintain ejectment against Peter Cumming. He has submitted to the judgment below and has not appealed, and his rights are not now in controversy. But the case discloses no ground upon which a judgment against the infant defendants can be supported. There is no pretense of any act on the part of the infants by way of assertion of title in themselves to the premises in question, nor is there any evidence that they have ever questioned or disputed the title of the plaintiffs. The complaint alleges that the defendants, after the death of Ellen Cumming, wrongfully entered into possession of the real estate described, and wrongfully withheld the same from the plaintiffs, and that the defendants, "or some of them," claim to own the same, and deny the plaintiffs' title thereto. These allegations are not admitted by the infant defendants in the answer, but are denied, and they expressly aver that they have no interest in any lands except those of which their mother, Ellen Cumming, was seized at the time of her death, to wit, the lands embraced in the Woodworth deed, and they insist that the action cannot be maintained against them. It is clear, we think, that the infant defendants are not bound by the acts of their father, the tenant for life. It is true that both his rights and the rights of the infants in the land conveyed to Ellen Cumming are derived through her. But as we have said, the deed to Ellen Cumming carried no part of the premises in dispute, which lie wholly outside of the boundaries in the deed. The evidence also tends to show that Peter Cumming, in entering upon the land in controversy, *Page 64 was asserting a supposed right as riparian owner to use the shore between high and low water mark adjacent to his land. But his acts must be referred to his own interest and title, and not to the title of the remaindermen. The infants could not control his conduct, and it would be grossly unjust to make them responsible for wrongs committed by him without their sanction or authority.
The joinder of the infant defendants is not justified by section 1503 of the Code. That section authorized any person claiming title to, or the right to the possession of real property sought to be recovered in an action as landlord, remainderman reversioner or otherwise, adversely to the plaintiff, to be joined as defendant. The infants, so far as appears, neither claimed title to or the right to the possession of the land in controversy, nor did they do any act in hostility to the plaintiffs' title, and the complaint as to them should have been dismissed.
The judgment should be reversed as to the appellants and a new trial ordered, with costs to abide the event.
All concur.
Judgment reversed.