Ely v. Ballantine

7 Wend. 470

Opinion

By the Court,

Sutherland, J.

The counts moved to be stricken out may be necessary to enable the plaintiff to recover, and must be retained. If not retained, the recovery may be defeated by shewing a conveyance out of Ely, the plaintiff named in the first count; and although there cannot be a recovery in the names of the persons stated as plaintifis in the counts asked to be stricken out, if at the time of the conveyanee to them the premises were held adversely, still if named as plaintifis, and adverse possession is insisted on as rendering the conveyances to them inoperative, there can be a recovery in the name of Ely ; for the title, if not passed to his grantees? remains in him.