¶1I concur in the opinion of Mr. Justice Lambert in so far as he holds that the interlocutory judgment appealed from should be reversed and the demurrers sustained, with costs. The action .is in ejectment. The reply demurred to alleges' that the deed from Michael L. Flynn to Dollard was without consideration, as was the *502deed from Dollard to Mary M. Flynn, and that they both knew at the time Michael L. Flynn executed and delivered his deed that he was insane. There is, however, no allegation to the effect that Michael L. Flynn had then been adjudged insane, and in.the absence of such an allegation and proof.of the same at the trial the plaintiffs cannot maintain the action. As*was said in Blinn v. Schwarz (177 N. Y. 252): “ Although the decisions of the courts upon the subject are not uniform, according to the weight of authority in this State as well as elsewhere, the deed of a lunatic before office found, is voidable-only and not void.” The deed of Michael L. Flynn was regular upon its face, properly executed and delivered, and, therefore, is presumed valid, and the title to. the property affected passed to the grantee therein named until by an adjudication of a court of equity the deed is declared void. If the deed is only voidable, then relief from it can only be granted by a court -of equity, and until such relief be granted, the grantee named in the deed, or those claiming under him, is entitled to possession.
¶2Therefore ejectment, which must depend upon the right to possession when the action is commenced, cannot be maintained.