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make a distinct and positive averment as to his title, and will have to prove it at the trial, as formerly, unless admitted or not denied by the answer. On this account it would be well, in all cases, to make that averment as specific as possible ; and so to frame it as that an admission or non-denial of it by the defendant, will amount to an admission of the whole case.
The subject of the notices which are requisite on the commencement of this and other real estate actions, will be found treated of at the end of the present chapter.
The next real estate action to be mentioned is that for partition of an estate-a proceeding of a peculiarly special and important nature, and to which, in fact, most of the last-cited decisions have reference. Precisely the same provision on this subject as that above cited with reference to real actions in general, is effected by sec. 448. The law in partition cases is still to be sought for in the Revised Statutes; the practice, in all cases where the proceeding is by action, is to be governed by the Code. The form of a complaint in partition, will be found in the Appendix.
Every party directly or indirectly interested in the corpus of the estate itself which is sought to be divided, at the time when the action is brought, must, of necessity, be joined, except incumbrancers, who may or may not be so, at the plaintiff's election.
Parties, however, who have parted with their title before the action is commenced, need not, and cannot be joined; and, if they are, the proceeding so taken cannot properly be sustained.- Vanderwerker v. Vanderwerker, 7 Barb. S. C. R. 221.
The complaint in partition must state distinctly and accurately the exact circumstances in relation to the interests of all parties; and, where those interests are derived under any pe. culiar or doubtful provision, it will be far better to set forth that provision verbatim, instead of merely abstracting it: which may be done with reference to instruments or circumstances of an ordinary nature.
Although every necessary party must be joined in a suit of this description, and it will often be expedient to make incumbrancers defendants, with a view to the due adjustment and apportionment of their charges, the plaintiff, in the latter case, should, if possible, obtain the consent of the other parties to such introduction ; for, if he held to have made it unnecessarily,
he will otherwise be liable for the additional costs.-Hamersley v. Hamersley, 7 L. O. 127.
Of a very similar nature to partition, is an action brought by a widow for the admeasurement of her dower. Relief of this nature was granted by the superior court, in Townsend v. Town. send, 2 Sandf. S. C. R. 711, and, objections having been taken that the defendants were not then in actual possession of the lands there in question, and also that the action was brought within six months after the husband's death, those objections were overruled.
The complaint in this case should contain a full description of the land on which the dower attaches, with definite and positive averments of the husband's seizin and death, and of the widow's right to dower; and also that such right has not been barred, either by express provision made for her, or release or consent on her part; or, if she have exercised her election between her dower and a provision made for her, that election should be specially pleaded. The prayer for relief should be in precise analogy to that given in the form of complaint in partition, "mutatis mutandis.”
By the recent amendment in sec. 307, a previous demand and refusal is made a necessary condition precedent to an action of this nature, as far as regards the recovery of costs, which cannot otherwise be claimed.
The former action of waste, and writ of nuisance, are abolished by sections 450 and 453. The proper form of proceeding in these cases, is now by an action for relief and damages, under the present forms. In waste, the relief demanded may include forfeiture of the estate of the party offending, and eviction from the premises; and, by section 451, the law in those cases, as laid down in the Revised Statutes, irrespective of the provisions which prescribe the form of the action to be brought, is specially saved. A limitation is, however, imposed by sec. 452, on the remedy of forfeiture and eviction, which cannot be obtained, unless the injury to the reversion shall be adjudged to be equal to the value of the tenant's estate, or to have been done in malice. A distinct averment to this effect should, therefore, be inserted in the complaint, in all cases where relief of this nature is sought, in order to ground the introduction of evidence upon the subject. In Linden v. Hepburn, 3 Sandf. S.C. R. 668, 6 How. 188, where the plaintiff sought a judgment of this nature
in connection with equitable relief, it was held that he could not obtain both in the same proceeding, but must be put to his election. The complaint should, therefore, under similar circumstances, be framed accordingly. Of course, the nature of the waste complained of, and the title of the party seeking the remedy, must be distinctly and positively stated, in order to ground the right to any relief at all. And, in an action for a nuisance, the nature and extent of the act complained of, and of the injury resulting therefrom to the plaintiffs, must also be clearly and positively averred; in order at once to ground a claim for adequate damages, and also for the guidance of the court in making a proper order for its cessation or removal.
By section 449, it is provided that proceedings to compel the determination of claims upon real property, under the provisions of the Revised Statutes, (2 R. S. 313), may be prosecuted by action under the Code. The very nature, however, of these proceedings, commencing as they do with the service of a special notice, and carried on, as they are, in a manner totally inconsistent with the ordinary forms of an action, seems to render this impossible in practice, and it was accordingly so held in Crane v. Sawyer, 5 How. 372; 1 C. R. (N. S.) 30. The remedy, therefore, in these cases, seems to be exclusively under the forms of the Revised Statutes, and not to be otherwise obtainable.
The last proceeding of the above nature is that of foreclosure. A form of complaint in this proceeding is given in the Appendix.
It is essential that the nature of the security, its due record, and the defendant's failure to pay the amount of principal and interest, should be distinctly averred, and a full description of the premises must be given, in order to form an adequate ground for the relief to be obtained on the decree.-See Rule 49 of the Supreme Court. Every junior incumbrancer known at the time of the bill, should be made a party, and, for this purpose, the records should be carefully searched ; if not, the whole proceeding would be nugatory, as far as regards the rights of the parties omitted. The wife of the party entitled to the equity of redemption, and also the widow of any deceased party so entitled, must also be joined, or the decree will be of no force pro tantoDenton v. Nanny, 8 Barb. S.C. R. 618; where, too, a widow had actually been made a party in another capacity, no issue being raised as to her right of dower, and, in that capacity, suffered judgment to be taken against her pro confesso, her right to dower was held not to be affected. Her claim in that respect was paramount to the mortgage, and therefore she had no right to suppose that that claim would be called into question, whatever might be the case as regarded her subsequent interest.Lewis v. Smith, 9 L. O. 292. In no case are senior incumbrancers necessary parties, and it would seem from the last case that they are not even proper ones, unless for the purpose of ascertaining the amount of their incumbrances, in order that the same may be duly provided for on a sale taking place. Where infants are interested in the estate sought to be foreclosed, the nature of their interest, and whether it is paramount or subordinate to that of the plaintiff, must be shown by specific allegation. The ordinary allegation that such infants claim some interest in the premises is not sufficient, as the facts cannot be taken as admitted as against them, and there must be some averment to sustain the requisite proof.-Aldrich v. Lapham, 6 How. 129; 1 C. R. (N. S.) 408.
The above points, must, of course, be carefully borne in mind in preparing the complaint in cases of this nature, and, in general, where any party is interested in more than one capacity, care must be taken to frame the statements so comprehensively as to include every possible interest which such party may possess. Of course, too, any peculiar circumstances connected with the security, as for instance, if the mortgagee have been in possession, must be distinctly averred; and in the latter case, the results of any accounts between these parties, which will tend to show the exact sum then due in respect of the security, must be correctly stated ; and it may be expedient to annex copies of the accounts themselves to the complaint, with a view to obtain an admission or non-denial of their correctness. The observation made in a previous part of the chapter, with regard to fixing the venue in these cases, will have been noticed. It must be in the county, or one of the counties, where the premises are situate, irrespective of that in which the loan itself may have been actually transacted.
The long and complicated question, as to the proper averments in the different forms of complaint, having thus been disposed of, we arrive, in the third place, at a subject of even greater importance, though not of equal complexity, i. e., the proper demand of the relief sought for. The observations on this subject have, however, been in a great measure anticipated by the considerations upon sec. 167, stated at the outset of the chapter. It has there been shown that the nature of the action will be determined by this part of the complaint; and that however the statements in the body of the pleading may show a title to any peculiar species of relief, apart from that formally demanded, the relief so omitted to be asked for cannot be obtained. See, especially, Spalding v. Spalding, 3 How. 297 ; Dows v.Green, 3 How. 377; Chapman, v. Webb, 1 C. R. (N. S) 388; Otis v. Sill, 8 Barb. S. C. R. 102; and Cahoon v. The Bank of Utica, 4 How. 423; 3 C. R. 110, before cited. In The Commercial Bank v. White, 3 How, 292, it was considered that alternative relief could not be demanded in respect of the same transaction, where the two forms of relief asked for fall under two distinct classes of the actions enumerated in sec. 167, incapable of being joined under the provisions of that section.
The proper classification of the action is, therefore, above all, most important to be attended to by the pleader, in framing his prayer; where there is either any doubt as to the exact remedy obtainable, or where any election has to be made between different forms of remedy, obtainable under the same state of circumstances. In this latter case, above all, the most careful exercise of judgment will be found necessary. Objections of this nature fall, however, more peculiarly under the head of demurrer, and, therefore, it would be premature to enumerate them here in detail. In the chapter devoted to that branch of pleading, the subject in general and the decisions in reference thereto, will be found fully entered upon.
Where a simple money recovery is sought, the demand of judgment for the amount claimed, with interest from the date of the original claim, or last settlement of account, is all that is necessary. In actions where pecuniary damages are alone asked for, unaccompanied by other relief, the form is even simpler, the demand of interest being, of course, incompatible; where, however, as in actions in respect of waste or nuisance, relief is required as well as damages, it must not be forgotten to be asked for. It is in actions for relief as such, that the exercise of ingenuity and thought will, above all, be required, as regards this portion of the complaint, on the due framing of which everything will, in fact, depend. Every possible remedy which the court may have in its power to grant under the