author:
Learned, P. J.:
      Bocees, J.:

text:
    EDWIN ALLEN, Appellant, v. THE VILLAGE OF NORTHVILLE, Respondent.

      Widening of afreets in villages — proceedings, how regulated — 1870, chap. 291, and 1884, chap. 131.
    The proceedings for laying out and widening streets in villages, provided for by title 7 of chapter 291 of 1870, are not governed by the provisions regulating expenditures, contained in title 4 thereof.
    The damages awarded to the owner of the land, although exceeding in amount $500, not are an extraordinary expenditure, requiring a vote of tlie taxable inhabitants to justify their payment, as is required in the case of extraordinary expenditures by section 4 of title 4 of chapter 391 of 1870, as amended by section 1 of chapter J31 of 1884. (Boches, J., dissenting.)
    Appeal from an order made on the 21st November, 1886, vacating an injunction order, pendente lite, granted on tbe 7th day of November, 1885.
    The action was brought to restrain the defendant from appropriating the plaintiff’s lands for highway purposes, and from assessing and taking the plaintiff’s property to pay an award alleged to have been illegally made.
    The temporary injunction was vacated and set aside on the ground that the award was properly made and plaintiff’s lands legally condemned to public use.

      Lee 8. Aníbal and Andrew J. Uellis, for the appellant.

      McKnight <& Boyce, for the respondent.
   Learned, P. J.:

The description of the land in the petition is not as full and clear . as it might have been, but we think it is sufficient. One needs some acquaintance with the land described in order to understand any description, and we think that one who is acquainted with the village of Northville would have no difficulty in understanding just what land was intended. As the petition was for the widening of Bridge street, it is evident that the existing line of Bridge street formed one of the sides of the property which was to be added to the street.

A resolution was passed by the trustees July 2, 1885, which describes the improvement in full and thus avoids the defect passed upon in People ex rel. Johnson v. Whitney's Point (32 Hun, 508). The proper notice was served and posted and the present plaintiff appeared before the trustees. After a hearing they adopted another resolution referring to the former and deciding that the improvement be made. The plaintiff objects that this second resolution does not describe the lands. It is enough that the lands had been described in the former resolution, to which this refers. In the case last cited the lands were not described in any resolution.

We do not consider it necessary to inquire as to the regularity of the mode of summoning and swearing the jury. The plaintiff has exercised his right of petition to the county judge for the appointment of commissioners, and the commissioners have, after a proper hearing, made an award. That award is all that is of any force now. Merritt v. Portchester (71 N. Y., 309) does not apply. A point which the plaintiff urges is, that under the statute (Laws 1870, chap. 291, tit. 7, § 5) the damages will not be payable to him for a year and that, therefore, the provisions of the statute for taking land are unconstitutional. We think not under Chapman v. Gates (54 N. Y., 132). It may perhaps be that the owner of the land can claim that the commissioners, in’ awarding such damages “ as they shall deem just,” should take into account this delay of payment. In fact they may have done so.

The plaintiff again urges that the commissioners awarded $650 damages; that these damages (exceeding $500) cannot be paid except by a vote of the taxable inhabitants. (Title 4 of the act.) We do not think that this is correct. The widening of a street is not a purchase of land, and the decision in Latham v. Richards (12 Hun, 360) does not apply. The proceeding for laying out and widening streets and the like under title 7 are not governed by title 4. They plainly cannot be. It cannot be told in advance what the damages will be that shall be awarded to the owners of land taken for these purposes. Therefore, section 5 of title 4 is inapplicable. Besides, according to the language of the sections 2, 3 and 4, it is not the amount, but the nature of the expenditure, which makes it “ ordinary.” The section does not say that, if in excess of $500, the expenditure is “ extraordinary,” but only that an “ ordinary ” expenditure is not to exceed $500. Furthermore, these damages are to be specially assessed on the estates, real and personal, in the village. (Sec. 5, tit. 7.) And in the same section the trustees are required to pay the award. The positive requirement shows that no submission of a resolution to the taxable inhabitants is contemplated. For by the previous section the trustees, on the making of the .award, may take possession of the land and make the improvement.

We think that the learned justice properly denied the motion. And, indeed, we might have very well rested our decision upon his ;able and -well-reasoned opinion.

Order affirmed, with ten dollars costs and printing disbursements.

Landon, L, concurred.

Bocees, J.:

I concur in the opinion of Mr. Justice Learned, except as to the last point or question therein considered.

The expense of widening the street was an “ ordinary expenditure” (Laws of 1870, chap. 291, tit. 4, § 2, and tit. 3, §3, sub. 25), hence was limited to §500 by section 3 of title 4. If, in excess of this sum, the expense was an “ extraordinary expenditure ” (see § 4 of tit. 4, as amended in 1884, chap. 131), and to be lawfully incurred, required the sanction of an affirmative vote by the taxable inhabitants. (Tit. and sec. last cited.)

The land for the widening of the street, requiring an expenditure of a sum exceeding $500, could not, therefore, be appropriated for that purpose until an affirmative vote for the expenditure was given, as provided by law. Such vote not having been given, the prior proceedings were nugatory, and left the plaintiff’s title unaffected. (Dodge v. Village of Catskill, 66 N. Y., 648.)

Order affirmed, with ten dollars costs and printing disbursements.


source: Caselaw Access Project

author: Learned, P. J.: Bookes, J.

license: Public Domain

text:
    HORATIO M. DOTY, Respondent, v. LEMON THOMSON, Appellant.

      Evidence — when a written contract cannot be varied by parol evidence.

    Upon the trial of this action, brought by the plaintiff, as owner of a canal boat, to recover from, the defendant damages, in the nature of demurrage, for delaj' in discharging the cargo. It appeared that at the time the goods were delivered to the plaintiff there was given to him a written instrument, signed by the defendant, containing a description of the goods, the place of shipment and of destination, the mode of carriage, the name of the consignee, the price to be paid and the amount advanced to the captain. Upon the trial the plaintiff was allowed, against the defendant’s objection and exception, to prove that the defendant had agreed, as part of the contract, to unload the boat, at its destination, at his own cost, except that the plaintiff was to pay the cost of shoveling the cargo into the vessels into which it was to be removed.

      Held, that the court erred in receiving the evidence, as the parties were bound by the written agreement. (Bocees, J., dissenting.)

      Gage v. Jaqueth (1 Laus.,207) overruled; GoviU v. Rill (4 Den., 323) distinguished.
    Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee.

      The action was brought by the plaintiff, as owner of a canal boat, to recover from the defendant for freight and towage and damages by way of demurrage for delay in unloading the boat.
    TJpon the trial the plaintiff, to prove the contract of affreightment, introduced in evidence two shipping bills, one signed by the defendant’s agent, which is as follows:
    “Thomson’s Mill, Saratoga Dam, N. Y., June 9, 1882.
    “ Shipped by Lemon Thomson on board of canal boat Thos. Shallow, Captain H. Doty, the following property in good order, ■to be delivered in like good order as consigned in the margin.
    “ For Knickerbocker Ice Co., Charles H. Yan Zandt, Agt-., Albany, N. Y., 80-]-§£ Cds. sawdust.
    “ To be reshipped.
    “Pay Capt. freight on safe delivery, one dollar twelve one-half cents per ton, less forty-eight and dollars advanced Capt.
    “ Forty-eight and dollars advanced Capt.
    “LEMON THOMSON.
    “B.”
    The referee found and decided, upon oral evidence offered by the plaintiff and duly objected to by the defendant, that the real contract between the plaintiff and defendant was that the defendant ^ would discharge the cargo and that the plaintiff would pay for so much of the labor of discharging the same as consisted in shoveling it into the vessels in which it was to be removed from the boat, and that the plaintiff was entitled to recover the full amount of freight as specified in said shipping bills, less the amount admitted to have been paid, and less ten dollars and fifty cents allowed defendant for such shoveling.
    The referee also found and decided that, by reason of the neglect of the defendant’s consignee, the boat was delayed in discharging her cargo four days beyond a reasonable and customary time for discharging like cargoes, and that the plaintiff was entitled to recover ■therefor at the rate of ten dollars per day.

      J. Lawson, for the appellant.

      Llyland c& Zabrisltie, for the respondent.
   Learned, P. J.:

When a writing appears to be intended to express the whole contract, oral evidence cannot be admitted to prove an undertaking necessarily connected therewith, and one of the elements of the contract. (Eighmie v. Taylor, 98 N. Y., 288.)

The written paper in this case contains a description of the goods, the place of shipment, the place of destination, the mode of carriage, the name of the consignee, the pri&e to be paid, the part of the price which had been paid. It contains, therefoi’e, every one of the elements of the contract for carrying the goods. To show a verbal arrangement about towage and unloading was in conflict with a settled rule of law.

But the plaintiff insists that this paper was not binding on plaintiff, because signed only by the defendant. And the plaintiff relies on Gage v. Jaqueth (1 Lans., 207), where the court say that no person is bound upon a written contract unless he has signed it. But this cannot be correct. The cases are numerous to the contrary. A few are: Putnam v. Furnam (71 N. Y., 590); Long v. New York Central Railroad Company (50 id., 76); Hinckley v. New York Central and Hudson River Railroad Company (56 id., 429); Belger v. Dinsmore (51 id., 166); White v. Ashton (51 id., 280). [Receipts given by railroad companies and accepted by the shipper have been held to bind him so that he could not prove a different contract.

Would it be claimed in this present case that the plaintiff could have proved by parol a different rate of freight than that specified in the writing ? Was he not bound to do the freighting for the price mentioned in the paper specifying the terms, which was delivered to him with the cargo and accepted by him ? Could he prove by parol that instead of delivering the cargo at Albany as specified in the writing he was to deliver it at Cohoes ? Certainly not. If the paper specified all the terms of the contract and was delivered and accepted with the cargo, it is not material that he did not sign it.

If a deed of land states that the land is subject to a mortgage, which a grantee agrees to pay as part of the consideration, the acceptance of the deed binds the grantee, personally, although he does not sign it.

Let us reverse the position. Suppose this paper had been signed by plaintiff, the carrier, and delivered to defendant on receipt of the cargo, could the defendant then have shown by parol that the goods were to be carried to New York instead of Albany?

The case of Covill v. Hill (4 Denio, 323), cited to sustain plaintiff’s position, only explains what a bill of lading is. It' is not necessary to say that the paper in question is a bill of lading. The only question is, whether as between the parties, it was the written evidence of the contract, completely stating its terms. If so, it cannot be contradicted by parol evidence. It seems to me that the authorities hold that such a writing, signed by one party, and delivered to and accepted by the other, at or before the commencement of the work to be done, is the written evidence of the contract.

, The judgment should be reversed, new trial granted, referee discharged, costs to abide event.

Landon, J\, concurred.

Bookes, J.

(dissenting):

The referee held that the parties were not concluded by the shipping hills as to the terms of affreightment, and allowed parol evidence to be given showing that, as part of the contract of shipment, the defendant agreed to unload the boat at its destination, at his own cost, except that the plaintiff should pay so much of the expense of unloading as it should cost to shovel the cargo into the vessels in which it was to be removed. The admission of such parol evidence, and the finding of the referee based thereon, aro urged as ground of error calling for a reversal of the judgment. Admitting that the shipping bills bound the parties, and constituted the contract of affreightment between them, the point of error would be well taken.

It was laid down in Eighmie v. Taylor (98 N. Y., 288, 297), that when an agreement in writing covers both sides of a contract, and is designed to signify its terms and is adequate for its purpose, it cannot be varied or affected by parol proof adding new stipulations.

This is a very familiar rule of law — quite too familiar to require a citation of cases in its support. But it is said that the shipping bills here put in evidence were signed by but one party — the consignor, and not by the plaintiff, the master or captain of the vessel — hence not conclusive against the latter as an expression of the contract of affreightment. This point seems to be settled in favor of the plaintiff by the decision of Gage v. Jaqueth (1 Lans., 207), and in Covill v. Hill (4 Denio, 323). Adhering to the doctrine of these cases, we must hold that the point of error above stated is not sustained.

To show the weight of the cargo, the plaintiff offered the weigh-master’s certificate, which was admitted in evidence against the defendant’s objection, that it was “ incompetent.” No other than such general ground of objection was stated The fact sought to be proved was one proper to be established. The evidence, in its essential nature, was competent. If the ground of objection was that the evidence offered was secondary or hearsay merely it should have been so stated, non constat, but if the ground of objection now urged had been stated, it would have been obviated by the production of the weighmaster himself. (Quinby v. Strauss, 90 N. Y., 664; Tooley v. Bacon, 70 id., 34.) The ground of objection not having been stated, the alleged error, now urged, must be held ineffectual.

An objection was taken to the bills held by the plaintiff for tow-age. They were admitted as an aid only in fixing dates. Their admission for such purpose only was not error.

As bearing on the question of alleged delay, the plaintiff was permitted to show that i-t was customary for consignees to have derricks for use, in discharging cargoes from boats, at places along the Hudson river, the place of destination in this case being one of them. The evidence, as we think, was clearly admissible, if confined in its application to the place where the cargo was to be discharged. Here again the objection interposed was that the evidence was “ incompetent, improper and immaterial.” The specific ground of objection now urged was not stated. To be now available, as ground of error, it should have been pointed out at the trial. (Quinby v. Strauss and Tooley v. Bacon, above cited.)

In conclusion, we are of the opinion that the record is free from' error calling for a reversal of the judgment.

Judgment affirmed, with costs.

Judgment reversed, new trial granted, referee discharged, costs' to abide the event.


author:
Landon, J.:
      Learned, P. J.

text:
    CHARLES S. SMITH, Respondent, v. JAMES A. COLE, Appellant.

      Deed — when one of several grantees may he compelled to ha/oe it recorded.

    This action was brought by one of the grantees in a deed, against the defendant who was also a grantee, to compel him to deliver the deed to the county clerk for record. It appeared that the deed, which was executed and delivered to the defendant in 1873, conveyed to the parties to this action and other grantees different interests in a tract of land ; that the defendant had retained the deed for ten years and had refused to allow it to be recorded. Part, if not all, of the purchase-money had been paid to the grantors. The defendant claimed that the deed had never been delivered ; that he had received it for the purpose of examination, and that he and anotuer of the grantees objected to it. No grounds for the objection were stated.

      Held, that a judgment requiring the defendant to deliver the deed to the county clerk for record should be affirmed. (Learned, P. J., dissenting.)
    Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee.

      MoKnight & Boyce, for the appellant.

      Charles X. Damson, for the respondent.
   Landon, J.:

The plaintiff is one of the grantees in a deed ; the defendant and several other parties are also grantees. The defendant has the custody of the deed, and has had it' since its date, more than ten years prior to the commencement of the action. One of the two grantors is dead. The judgment is “that the defendant give possession of said deed to the county clerk of Saratoga county to the intent that the same shall be duly placed on record in said clerk’s office in behalf of and for the benefit of the plaintiff,” also for costs. Before the action was commenced the plaintiff made request of the defendant that he either cause the deed to be recorded or allow plaintiff possession of it for that purpose. This the defendant refused to do. The defendant, by his answer, alleged that the deed was not satisfactory to himself and some of the other grantees; that he never accepted it from the grantors as a satisfactory deed, but only conditionally and for examination.

The purchase-money was $2,000, of 'this, $1,500 are shown to have been paid, and it is probable that all was paid. The defendant gave evidence tending to support his answer; but the referee found that there was a full and legal delivery of the deed by the grantors and an acceptance thereof by the grantees. This acceptance the referee found from the fact of the long retention of the deed. "What the defendant’s objections to the deed were, does not appear.

Stating the case more favorably for the defendant' than the referee has found it to be, the defendant has held for ten years without having it recorded, a deed of real estate in which the plaintiff and defendant and others are the grantees. The plaintiff is content with the deed and wishes to have it recorded, to the end that he may have the protection the record affords. The defendant, and possibly the other grantees, are not content with the deed and do not wish to have it recorded. No valid reason is shown why the plaintiff should not have the protection he seeks.' The defendant may expose himself and the other grantees to whatever risks may result from withholding the deed from record, but he has no right to impose the like risks upon the plaintiff without his consent. The law accords to the plaintiff the right to have his muniments of title recorded, and does not accord to his co-tenant or co-grantee the privilege to withhold from him that right. One co-tenant may not compel the other to deliver to him the common grant of title (Clowes v. Hawley, 12 Johns., 484), but it is manifest one should not so use it as to deprive the other of any right under it.

The record in behalf of the plaintiff will not, unless they so elect, affect the other 'parties. The defendant objects that the plaintiff did not, at the time of the demand, tender to him the amount of the charges for recording or for any other expense. The defendant is not obliged to pay the fees for recording and it does not appear that any other expense will be incurred.

"We conclude to affirm the judgment. We have some doubt whether costs ought to have been awarded in the court below, especially if the defense to so novel an action was interposed in good faith. We exercise our discretion by withholding costs of the appeal.

Judgment affirmed, without costs.

Bocees, J., concurred.

Learned, P. J.

(dissenting):

John O. Lyon and'another contracted to sell three-fifths of a lot of land to Rooney, Smith and defendant. Defendant bought out Rooney’s interest, and then sold a portion of his interest to McNab, Judson, Place, Ileacock, Yeghte, Wells and Wade. Afterwards, June 27, 1873, a deed was executed by Lyon and the other grantor, and soon after was handed to defendant. This deed was to plaintiff Smith (not the Smith of the contact), defendant McNab and the others above named. It purported to convey tliree-fifths of the lot, as follows:. Ten-fiftieths to Smith, one-fiftieth to defendant, nineteen-fiftieths to McNab and the others.

There is no proof of what took place at the time the deed was handed to defendant, except his own testimony. He says he received it for examination, .took it to his counsel, who examined it and 'advised him not to accept it, as it was not a proper deed; that Ileacock refused to accept it.

The referee finds that there was an acceptance, by reason of the fact that the defendant kept the deed for some twelve years without returning it. By the judgment entered on the referee’s report the defendant was required to deliver the deed to the county clerk in order to have it recorded.

It seems to me that there is a very serious difficulty in this case. If recorded, the deed will show that defendant has only one-fiftieth, that McNab and the others have nineteen-fiftieths, and the plaintiff ten-fiftieths. Whether the deed states the true proportions or not, it will so appear on the record, and any doña fide purchaser from these respective parties will get the share stated in the deed or record as belonging to them.

The defendant says he did not accept the deed; that he was not satisfied with it. It may be found that it did not state his share properly. At any rate, he refused to accept it or to record it. What right has the plaintiff to compel the defendant, against his wishes, to put on record a deed which conveys all but one-fiftieth of the' land to other parties, and thus deprives him (it may be) of the proportion which he claims ? Again, McNab and the others have something to say. They are interested that there shall not be recorded a deed conveying to the plaintiff ten-fiftieths, when, for all that we know, McNab and the others may claim that plaintiff’s share is less than ten-fiftieths. We have no right to force on record a conveyance which they have not accepted and to which the evidence is that one (Ileacock) objected.

There is nothing to show that this defendant was authorized to accept the deed for the other tenants in common. And there is nothing in the relation of tenants in common which gives one the right to decide upon, or to vary, the proportion belonging to another. And it seems to me clear that the recording of this deed will, as to all purchasers, affect the rights of the grantees. Certainly McNab and the others would not be able to sell more than nineteen-fiftieths, whatever their true rights might be. Besides, the deed contains an acknowledgment on the part of the parties of the second part of the validity of the title to the lands, which practically takes away the covenant of warranty. This may be according to the agreement, but it is unusual.

It is urged (and the referee’s decision rests on this) that the defendant has kept the deed twelve years or thereabouts. It would seem that there has been an equal neglect on the plaintiff’s part. There seems to have been a mistaken idea that another deed had been executed and recorded. Probably, too, the speculation was not a success. But the difficulty is that the plaintiff has no right to compel defendant to record a deed to which he objects. If thedefendant were in possession of a deed conveying property to plaintiff solely, the case would be different. Or if all the grantees had accepted the deed, and the defendant were only the custodian. But we have no proof that McNab and the others have accepted ; a positive proof that Ileacock has not. If plaintiff is entitled to ten-fiftieths of this land, he can obtain a deed from Lyon and can record it himself.

I think the judgment should be reversed, referee discharged, new trial granted, costs to abide event.

Judgment affirmed, without costs.


author: Learned, P. J.: Land on, J.: Bookes, J.:

text:
    ALLETTA A. AKIN, Appellant, v. SARAH A. KELLOGG and Others, Respondents.

      Denser — effect, under sections 13 and 14, 1 Revised Statutes, 741, 743, of a failure to enter within a year — when the implied election may be set aside on account of fraud — how it is affected by the insolvency of the estate.

    In this action brought by the widow of Benjamin Akin, deceased, against his daughter, his grandchildren and a tenant, the complaint alleged that by false representations made to the plaintiff, with tlm knowledge and on behalf of the daughter, as to the value of the estate of the plaintiff’s husband, she was induced to and djd omit and neglect to renounce the provisions made for her by the will, and to enter upon the lands of which her husband died seized, or take proceedings to have her dower assigned. It also alleged that the estate was insolvent, and prayed that she might be relieved from the election which she was deemed by sections 13 and 14 of 1 Revised Statutes, 741, 743, to have made, and that her ■ dower might be assigned to her.

      Held, that it was error to sustain a demurrer, interposed to the complaint by the daughter and tenant upon the ground that the facts stated did not constitute a cause of action. (Boches, J., dissenting.)
    That the election which,under the said statutes, the widow is deemed to have made, by failing within one year to enter upon the lands or commence proceedings, is not absolutely conclusive as against her so as to prevent her being relieved therefrom when she has been induced to omit such action by fraudulent representations. (Boches, J., dissentiug.)
    That the statute deems the election to have been made only in case provision be actually ' ‘ made for her by willas in this case the widow could not, by reason of the insolvency of the estate, take the provision made in the will, she was not to be deemed to have made an election. (Landon, J.)
    Appeal from an order and a judgment sustaining a demurrer interposed to the complaint on the ground that it did not state facts sufficient to constitute a cause of action. The action was in the nature of a bill in equity, for relief from the effect of the following provisions of the Revised Statutes (1 R. S., 741, 742):
    Seo. 13. If lands be devised to á woman, or a pecuniary or other provision be made for her by will in lieu of her dower, she shall make her election whether she will take the lands so devised or the provision so made, or whether she will be endowed of the lands of her husband.
    Seo. 14. When a woman shall be entitled to an election under either of the two last sections, she shall be deemed to have elected to take such jointure, devise or pecuniary provision, unless within one year after the death of her husband she shall enter on the lands to be assigned to her for her dower, or commence proceedings for the recovery or assignment thereof. (1 R. S., 741, 742.)
    The following, among other facts, were alleged in the complaint : That the plaintiff is the widow of Benjamin Akin, deceased; that said Benjamin Akin, during the time of his marriage with plaintiff, was seized in fee simple and of an estate of inheritance in the lands described in the complaint; that the defendant Sarah A. Kellogg claims title to all the said lands, and, since the decease of said Benjamin, has collected and received the rents and profits thereof, and that at the commencement of this action she actually occupied a portion thereof, and the defendant George Allen the remainder thereof as her tenant; that said Benjamin Akin died October 10, 1881, leaving a will, a copy of which is annexed to the complaint, by which a provision was made for the widow in lieu of her dower; that plaintiff was ignorant of the nature, value and extent of the estate of the said Benjamin Akin at the time of his death, and for a long time thereafter, and until the executor filed his accounts, and asked for a final settlement, which the executor was alleged to have done on the 5th day of May, 1884; that the plaintiff in ignorance of the real situation, and in reliance upon the statements and representations of one Asa B. Kellogg, made in the presence of defendant Sarah A. Kellogg, and the payments made to her by said Asa, who was also executor of said Benjamin Akin’s will, was induced to and did omit and neglect to renounce the provisions made for her by said will, and was induced to and did omit and neglect to enter upon the premises described, or to commence proceedings for the recovery of her dower therein, within one year from the death of her husband, as she would have done if she had not relied upon such statements and representations, or if she had been informed of the actual condition of the said estate ; that such statements and representations so made by the said Asa B. Kellogg in the presence of defendant Sarah A. Kellogg, and while acting as her agent and for her benefit, were false, and were known to the said Asa B. Kellogg to be false, and were fraudulent; that the defendant Sarah A. Kellogg and her husband well knew when the said representations were made; that in fact the estate was insolvent, and the plaintiff’s share under the will would amount to little or nothing; that the said Asa B. Kellogg filed his accounts May 5, 1884, with the surrogate of Rensselaer county, and petitioned the surrogate for final settlement, and that said accounts make no mention of the premises described in the complaint and show the estate to be insolvent, and show that the plaintiff would receive nothing whatever under said will, as widow of said Benjamin Akin, deceased.
    The plaintiff then prays to be relieved from the penalty imposed by statute for not having, within one year after.the death of her said husband, entered upon the lands to be assigned to her for her dower, or commenced proceedings for the assignment thereof, and that she may now be permitted to make her election and to renounce the provision made for her under the said will, and to elect to take her .dower with the same effect as if she had made such election within the time allowed by statute; and that she may be adjudged to be entitled to dower in all the real estate described; and that her dower may be set off to her; and that the defendant Sarah A. Kellogg may be adjudged to account for and pay over to the plaintiff one-third of all the rent's and profits, etc., and for other relief.

      Matthew Ilale, for the appellant.

      L. Lafiin Kellogg, for the respondents.
   Learned, P. J.:

This is an action, brought by the widow of Benjamin Akin, deceased, against Sarah A. Kellogg, his daughter, and Edna Akin and Maud C. Akin, his grandchildren, and against George Allen, tenant of Sarah A. Kellogg. The complaint alleges that by false representations made to the plaintiff, with the knowledge and in behalf of Sarah A. Kellogg, as to the value of the estate, she was induced to neglect, for a year after the death of her husband, to enter on the lands or take proceedings for dower. She alleges that the estate is insolvent, and asks to be relieved from the election which she is deemed to have made, under the statute, and to have dower assigned. (1 R. S., 741, §§ 13, 14.) The defendants Sarah A. Kellogg and George Allen demurred on the ground that the complaint did not state facts sufficient to constitute a cause of action. The Special Term sustained the demurrer, and the plaintiff appeals.

One point which is stated in the opinion is that the complaint • states no fraud against Edna Akin and IVIaud C. Akin, and, therefore, shows no ground of relief against them. They have not demurred, and they are in no way before us. It is unnecessary to consider their rights until they shall have been heard.

The important question is whether the election which, by section 14, above cited, a woman is deemed to have made, is absolutely conclusive against her, or whether she may be relieved therefrom.

The courts have relieved a woman from an actual election evidenced by a written paper. (Hindley v. Hindley, 36 Sup. Ct. N.Y.; 29 Hun, 318.) In Manice v. Manice (1 Lans., 348) the remark was made that as the annuity abated (held void) any election the widow had made should not impair her right to dower. The same is said in Hone v. Van Schaick (7 Paige, 221, at 233). After that case had heen affirmed in the Court of Errors (20 Wend., 564) it came before the vice-chancellor (Howland, Exr., v. Hecksher, 3 Sandf. Ch., 519). It there appeared that the testator died in 1832, the widow in 1838. The trusts of the will were held void ; her administrator was ordered to make an election. She had not made any election during her life. Certainly, then, she could not have taken proceedings for dower during the year after her husband’s death. Yet the right to election was held not to have been lost, inasmuch as the annuity to her had fallen with the trusts. The reversal of the case of Manice v. Manice (43 N. Y., 303), does not seem to touch this point. (See pp. 327, 328.)

With these decisions of this State as a guide, we may consider the meaning of the statute. It is not a statute of limitations. It only declares that a failure to claim dower for a certain time shall be deemed an election to take under the will. Now, let us suppose that, without waiting the year’s time, the widow had, by some proper instrument, declared her election to take under the will; and let us suppose that this election had been procured by fraud of the devisees, or that the provisions of the will, which she had elected to take, should be subsequently declared void. Now, is there any reason why the widow should be deprived of the dower to which she would otherwise have been entitled ? In the one case, that which she elects to take has no existence; in the other her choice was not a fair one, but was influenced by fraud, practiced by those who would relieve themselves from her claim of dower.

Now, if such would be the rule in case of an actual election, why should not a similar rule prevail as to the constructive election of the statute. The rights of bona fide purchasers and incumbrancers are not in question. Nor need we say here that this constructive election can be set aside as to those defendants, Edna and Maud, who are charged with no fraud. But certainly a constructive election ought not to be more absolute than an actual election, and if the latter can be set aside for fraud so may the former.

The decisions of other States are not authoritative. But we find that the same view has been taken elsewhere. In Smart v. Waterhouse (10 Yerg., 94), a ease of fraud; recognized as sound in Waterbury v. Netherland (6 Heiskell, 512), and in McDaniel v. Douglas (6 Humph., 229); the last two being cases where there was no fraud. In Thompson v. Egbert (17 N. J. Law, 459), and Osmun v Porter (39 N. J. Eq., 141) the property taken by the widow under the will had been subsequently, that is after she had taken it, sold for his debts; and she was allowed to claim dower, although the statutory time had elapsed. Even in Nicholas v. Nicholas (Ky. Decis., 338), cited by defendant as an authority for the contrary view, the court expressly declined to decide whether the widow had lost her right to dower iti land. The decision touched personal property only.

We thinn tiiat it tne widow was prevented by fraud of the heirs or devisee from making her election within the statutory time, she may be relieved.

The defendants urge that sufficient facts are not stated in the complaint to show fraud. We think they are sufficient as a matter of pleading. The statements made to plaintiff are alleged to have been false and fraudulent and known to be so ; and to have been made by one who stood in, what may be called, a confidential relation to the plaintiff, viz., the executor.

A further point is made, viz., that the plaintiff has received money under the will, and that she retains it without offering to restore.

The allegation of the complaint is simply that Asa B; Kellogg, who is the executor, did pay certain sums to plaintiff which he stated were portions of the share of the income to which plaintiff was entitled under the will. Now, it is not averred that he paid these sums from the estate, or that he paid them as executor. Indeed, as the estate has proved insolvent, the plaintiff could not have been entitled to any income under the will, so that these sums could not have been rightfully paid by Kellogg from the estate, and cannot come out of any share thereof belonging to the devisees or legatees. There is nothing, therefore, which they are entitled to have returned to them from the plaintiff. And the executor cannot, in his accounting, credit himself as against the devisees and legatees with payments made to another legatee out of an insolvent estate. Whether the plaintiff may be bound to return these moneys to Asa B. Kellogg is a matter with which defendants have nothing to do. ■

The judgment and order should he reversed, demurrer overruled, judgment for plaintiff with costs, with leave to defendants, in twenty days after notice of this order, to withdraw demurrer and answer on payment of all costs, including costs of appeal.

Land on, J.:

The rule seems to be, that when the material part of the pecuniary or other provision made in the will for the widow, in lieu of dower, is adjudged to be void, the widow may still be permitted by the court to elect to take her dower, although the year has elapsed in which to make the election. (Manice v. Manice, 1 Lans., 348; Hone v. Van Schaick, 7 Paige, 221.) This, probably for the reason that, as the result shows, no such provision is, in fact, made for her by the will, as the will recites ; therefore, the statutory condition requiring her to elect, never, in fact, existed. The statute says, if the provision be made for her by will,” it may be merely recited, and because unlawful, or because the testator was insolvent, not made. The statute deems the election to have been made by the widow only in case the statutory conditions existed. In this case, because of the insolvency of the testator, the widow cannot, if she so elect, take the provisions made for her in lieu of dower. She is not, therefore, deemed to have made an election.

It cannot touch any vested right if she be permitted to make the election now. She therefore seems to be entitled, as she prays in her complaint to have it adjudged, that she is entitled to dower in the lands whereof her husband was seized, and that the same be set off to her, any impotent or incompetent provisions in the testator’s will to the contrary, notwithstanding.

But if wrong in the foregoing views, I am inclined to concur with the presiding justice, notwithstanding the very able opinion of Mr. Justice Bookes. Unless we are coerced by authority, the plaintiff should not be bound by an election which, if she assented to it, was procured by misrepresentation. I doubt whether the word “ deemed,” as used in the statute, necessarily imports absolute conclusiveness. It may mean a high presumption — conclusive unless overthrown — but not excluding all possibility that the fact is otherwise. If so, the statute is not such a bar as to exclude the truth, or to deny relief against the fraud which brought the plaintiff within it.

Bookes, J.:

I am of the opinion that the judgment for the defendants, o.n the demurrer, should be affirmed; and for the reasons stated in the opinion of the learned judge at Special Term. A few suggestions should, perhaps, be added, having relation to the cases cited by the appellant’s counsel bearing on the leading point raised by the demurrer.

In Hindley v. Hindley (29 Hun, 318), the plaintiff (the widow) brought her action for the admeasurement of her dower, and in that action sought to remove an impediment to her recovery, to wit, to set aside a paper purporting to be an election by her to accept the provision in the will of her husband made her in lieu of dower. The case, as reported, does not show but that her action claiming dower was brought within the year allowed her by law to make her '•election. If in time with her action, the only difficulty in the way of her recovery was the paper sought to be annulled; and this seems to have been the subject, and the only subject, considered and decided. It does not appear that any question arose in the case on the limitation declared by the statute. Certain it is that no such ■question was, in fact, decided. The case is not, therefore, in point. Nor is the decision in Manice v. Manice (1 Lans., 348) here applicable. There the widow was not put to her election under the statute, for the reason that the provision made for her in lieu of dower had failed, hence the will stood freed from the provision. The same may be said of the cases wherein the ITone will was considered. (Hone v. Van Schaick, 7 Paige, 222; 20 Wend., 564; 3 Sandf. Ch., 519.) So, also, in Thompson v. Egbert (17 N. J. L., 459) and in Osmun v. Porter (39 N. J. Eq., 141) the provision for the widow in lieu of dower failed. In these cases, therefore, the widow was not put to her election under the statute.

In Macknet v. Macknet (29 N. J. Eq., 54) the widow was permitted to withdraw her dissent and refusal to accept the provision of the will made her in lieu of dower; but this was relief against her own act; not relief from the provision of a statute. The retraction was there allowed because just in itself under the circumstances of the case, and it would leave the widow in statu quo. Not so here, when the statute barred the plaintiff’s right to dower, because she had not, within one year after her husband’s death, taken the necessary step to secure such right. Thus it is seen that the case cited does not touch the question of limitation prescribed by our statute; nor does the decision Richart v. Richart (30 Iowa, 465), or in Wells, Fargo & Co. v. Robinson (13 Cal., 133) do so.

If Smart v. Waterhouse (10 Yerg., 94) is to the effect claimed for it by the appellant’s counsel, I am unwilling to yield to it my assent, as it would be contrary to my judgment, and, as I think, in hostility to the following authorities: 3 Redfield on Wills (ed. of 1877, 430; star paging, 383); Nicholas v. Nicholas (Ky. Dec., 338); Waterbury v. Netherland (6 Heisk., 512); McDaniel v. Douglas (6 Humph., 229); Collins, Administrator, v. Carman’s Executor (5 Md. Ct. of App., 504).

The subject was fully considered in the last case cited (when the widow was insane), both on principle and authority, and the conclusion was reached that when the time within which a right was allowed to be exercised or asserted was limited by a statute, such right could only be exercised or asserted within the time declared by law. In this case the learned judge remarked, “ we wish to be understood as not intimating any opinion upon the question whether a court of equity can or cannot make an election or renunciation for an insane widow during her life and in proper time.”

In Van Steenwyck v. Washburn (59 Wis., 483) it was held that this might be done by a court of equity, if done within the time limited by law for that purpose. In none of the cases above referred to, unless in Smart v. Waterman, has it been decided that the time within which a widow is required by statute to make her election by her own act, as by entry or by proceeding for the recovery or assignment of her dower, can, for any cause whatsoever, be extended beyond that fixed by law.

The statute here under consideration is a statute of limitation. The Chancellor says, in Hawley v. James (5 Paige, 446), that “the object of the legislature undoubtedly was to compel the widow to make her election to take her dower instead of the jointure or other provisions made in lieu thereof within a limited period after the death of her husband; ” and in Palmer v. Voorhis (35 Barb., 479, 483), Judge Brown says: “ In this respect the statute operates as a limitation of her right of action.”

This statute must, therefore, be treated like other statutes of limitation, such as those applicable to the bringing of actions and appeals, when the time for so doing is limited by law.

As said in Humbert v. Trinity Church (24 Wend., 586-604), it is of the nature of the statute of limitation, in effect, to mature a wrong into a right by cutting off the remedy; and further, that “ the statute bases itself upon time.” (See opinion of Cowen, J., in this case.)

The prayer for relief in the complaint is that the plaintiff may be relieved from the statute. In effect, therefore, the action is an action in equity to repeal a statute of limitation as regards this particular case.

It has been said in some of the cases that the widow should be held to an election made by her, only when congnizant of all the ■facts ; but this remark is applicable to- those cases where relief is sought against her own acts ; not to a case where relief is sought by her against the express provisions of a statute.

It may be here remarked that the plaintiff is not without remedy. She may have her action against the party who perpetrated the fraud at any time within six years thereafter; but not after that .period has elapsed, even by showing the strongest equity in her favor, whether of a fraud practiced on her or for other cause as a reason for the omission to bring her action in time.

I also suggest that the omission here to notice in detail other points deemed of significance in the opinion of the Special Term, is no intimation that they are considered groundless. I think quite otherwise of them.

In my opinion, the judgment appealed from should be affirmed, with costs.

Judgment and order reversed, demurrer overruled, and judgment for plaintiff, with costs below and of appeal, with leave to defendant in twenty days after service of copy order, to withdraw demurrer and answer over on payment of all costs, including costs of appeal.

      The opinion of Judge Westbrook at Special Term, after stating the facts, proceeds: “It is proposed in this opinion to state briefly the reasons why the demurrer should be sustained without any formal or elaborate argument.

        First. The alleged fraud of Sarah A. Kellogg and her husband cannot alter or change the statute. Fraud may relieve a person from an agreement, but it cannot extend the statute time for bringing an action or to make an election one day. To recover her dower the plaintiff was bound to commence her action or proceeding within one year after the death of her husband, and the court is powerless to extend the time. If an actionable fraud has been perpetrated, damages by way of compensation may be awarded, but the court cannot relieve from a statute bar.

        Second. Even though the court could enlarge the time to recover dower against the perpetrators of the alleged fraud, Sarah A. Kellogg and her husband, it could not do so against parties not implicated therein. The defendants Edna Akin and Maud O. Akin, grandchildren of the testator, are, according to his will, equally interested with the defendant Sarah A. Kellogg, in the premises in which the dower is asked to be assigned. There is no allegation in the complaint that their interest has been assigned to Sarah A. Kellogg. It is true it is averred that said Sarah “ claims the title to all of said lands and premises,” but it is not charged that the interest of the grandchildren has been transferred to her; on the contrary, it is charged “that the defendants Edna Akin and Maud O. Akin, have, or claim to have, some title or interest in said premises.” As these parties are implicated in no fraud, the plaintiff cannot have the relief she asks because thereby, as against confessedly innocent parties, the statute time for bringing an action is enlarged.

        Third. There is no averment in the complaint that the statement made to the plaintiff was for the intent or purpose of influencing her action; and it was not the statement of a fact, but the expression of an opinion.

        Fourth. The plaintiff has received a part of the income of the estate under the will, and she is in no condition to repudiate the election which she made, without restoring or offering to restore its fruits.
      For these reasons the demurrer must be sustained, with costs. The plaintiff to be allowed, on payment of costs, to serve an amended complaint


author: LANDON, J.: Learned, P. J.

text:
    WILLIAM BRADT, Respondent, v. WALTER S. CHURCH, Appellant.

      Evidence — presumption that a perpetual lease still exists — that a party enters under the lawful title — what acts of a tenant are required, to render his holding an adverse one— admissibility of a judgment to show a peaceful entry — when a recovery cannot be allowed, under a claim hostile to that alleged, in the complaint.

    This action was brought to recover the possession of a farm which was, on May 5, 1794, subject to the terms and conditions of a perpetual lease executed at that date by Stephen Yan Rensselaer to Peter Snyder. The plaintiff claimed title under a quit-claim deed executed in 1808, by the sons of one St. John, by whom and St. John the farm had been occupied since 1850. The plaintiff continued to occupy the farm until 1881, when he put his son Jeremiah on the farm, w'ho worked it as his tenant, on shares. While the son was in possession the defendant, who then owned the said lease and all the interest and title of the Yan Rensselaers in the farm, commenced an action of ejectment against him, to which the plaintiff was not made a party, to recover the farm for nonpayment of rent, in which he procured a judgment by default, upon which an execution was issued, under which the defendant was put in possession by the sheriff, and so remained at the time of the commencement of this action.
    Upon the trial this judgment was received in evidence. No rent had been paid upon the lease for many years. It did not affirmatively appear how St. John originally came into possession, nor that either he or the plaintiff ever paid any rent or in any way recognized the existence of the lease.

      Held, that, from the fact of the existence, of the perpetual lease in 1794 the law would presume its continued existence.
    That in the absence of all evidence to the contrary, St. John must be presumed to have entered under this lease.
    That this presumption was not affected by the execution of the quit-claim deed, nor was it of any consequence whether or not the plaintiff had knowledge of the existence of the lease.
    That the evidence failed to show any adverse claim or possession by the plaintiff or his grantors [sufficient to start or establish a title by adverse possession as against the defendant, his landlord.
    That the judgment-roll in the action brought by the defendant against the plaintiff’s son was competent evidence, not as an adjudication affecting the plaintiff, but as tending to show that the defendant came peacefully into possession of the premises under his lease.
    That even if the plaintiff’s title under the lease could not be forfeited without the entry against him of a formal judgment in ejectment, yet, as in this action he claimed in hostility to the lease, it would be error to award to him a judgment for the recovery of the farm, subject to the terms and conditions of the lease.

      Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee.
    The action was one of ejectment to recover lands in the town of Berne, Albany county.

      8. IV. Rosendale, for the appellant.

      TV. (É Q. W. Youmans, for the respondent.
   LANDON, J.:

We do not think this judgment can be upheld.

It was admitted on the trial that the land described in the complaint was, at the date of the lease, from Stephen Yan Rensselaer to Peter Snyder, subject to the conditions thereof. This lease was dated in 1791. It was the usual manorial lease in fee, and, as found by the referee, of the kind described in the cases of Van Rensselaer v. Hays and Van Rensselaer v. Ball (reported in 19 N. Y., 68, 100). It also appeared that before the commencement of this action, and before this defendant entered into possession of the land, the said lease and -all the interest in and title to the land of the said Yan Reitsselaer had been duly transferred to and vested in the defendant, and that his- entry into possession of said land was peaceful; also that no rent had been paid upon the said lease for many years.

The plaintiff’s title is as follows : St. John was in possession of the land from 1850 to 1863. In 1863, St. John, by quit-claim deed, conveyed the land to the plaintiff. Plaintiff was in possession until 1881, when his son, Jeremiah Bradt, went into possession as his tenant. While Jeremiah was thus in possession, this defendant brought an action against him to recover possession of the land for non-payment of rent under the said original lease, and upon Jeremiah’s default, recovered judgment for the possession, and execution being issued upon this judgment, the sheriff, by virtue thereof, delivered the possession of the land to this defendant. This plaintiff was not a party to that action. It does not affirmatively appear how St. John originally came to enter into possession, and it does not appear that either he or the plaintiff ever paid any rent or in any way recognized said lease.

The admission of the parties shows that the lands were subject to the lease- in 1794. From that admission we know the lease was then operative, and that the relation of landlord and tenant existed between Van Rensselaer and Snyder. The lands being once subject to the lease, and the lease being, by its terms, perpetual, the presumption is they still continue subject. (Tompkins v. Snow, 63 Barb., 525; Lyon v. Adde, Id., 89; Lyon v. Odell, 65 N. Y., 28.) The lease being perpetual, the presumption results that every one entering into possession enters under the lease. (Whiting v. Edmunds, 94 N. Y., 309; Crooked Lake Nav. Co. v. Keuka Nav. Co., 37 Hun, 9; Jackson v. Davis, 5 Cow., 123.) Hence St. John, the grantor of the plaintiff, unless he can show the contrary, is presumed to have entered under this lease. He may have paid no rent for twenty-three years, but the only effect of this would be to limit his landlord’s recovery of rent to the twenty years immediately before action brought. (Central Bank v. Heydorn, 48 N. Y., 260; Lyon v. Odell, 65 id., 28.) No presumption arises that the covenant to pay rent has been released or discharged. (Id.)

For the same reasons the presumption exists that the plaintiff, notwithstanding his quit-claim deed from St. John, entered subject to the lease. 'Whether he knew of the existence of the lease is of no consequence. His ignorance could not extinguish it. (Whiting v. Edmunds, supra.) There is no evidence that the lease has been extinguished. The plaintiff, however, asserts title by adverse possession. This claim must fail because there is no proof that ■ an adverse possession was ever started. Once in as tenant, the tenant cannot, without surrendering to his landlord, and then entering under a hostile claim, start an adverse possession. (Jackson v. Spear, 7 Wend., 401; Kenada v. Gardner, 3 Barb., 589; Hill v. Hill, 4 id., 419.) He must bring home to his landlord knowledge of his adverse claim. (Whiting v. Edmunds, supra.)

The Code, section 373, declares the possession of the tenant to be the possession of the landlord, until expiration of twenty years after the termination of the tenancy, not after the non-payment of rent, not after the giving a deed consistent with the lease. No covenants are implied in a deed. (1 R. S., 738, § 140.) A quit-claim, therefore, implies no hostility to the landlord’s title. As no adverse possession was ever started, none has ever ripened into title.

The judgment-roll of Church v. Jeremiah Bradt was competent evidence, not as an adjudication affecting the plaintiff, but as tending to show that Church came peacefully into possession of the promises, claiming under his lease. (2 R. S., 507, § 1.) Its admissibility rests upon the same ground as the deed from St. John to the plaintiff. The defendant was no party to that deed, but it was competent evidence to show what claim of title the plaintiff had.

The rent being in arrear and the lease in force, the defendant, as landlord, had the legal right to recover possession against any one withholding possession from him. Whether the plaintiff was assignee of the whole estate or term of the original tenant is not material. The action is not to recover upon a covenant to pay rent. If the plaintiff did not withhold the possession, the defendant had' no occasion for contention with him, and, therefore, could peaceably enter into possession. As the defendant took possession under a judgment his possession was lawful. (Jackson v. Rightmyre, 16 Johns., 314, 325.) The defendant being peaceably and apparently lawfully in possession, the plaintiff to eject him must show his own titje, and upon comparison of titles, the better title. The plaintiff’s title is subject to the lease, and as he does not by his complaint ask possession under the lease, but in hostility to it, he has not shown the better title. The plaintiff urges that the claim under the lease is stale, and therefore should be rejected. If the lease is perpetual, it is presumed to last as -long as the land does, unless shown to be extinguished.

The plaintiff, however, contends that under the lease the title to the premises is in him, and, though the premises were vacant, the rent in arrear, and the landlord peacefully entered, yet the plaintiff’s title under the lease cannot, thus be forfeited, and can only be forfeited by judgment in ejectment. He cites Allen v. Brown (5 Lans., 280), and Jackson v. Elsworth (20 Johns., 180). These were actions in which this doctrine was held in favor of rights asserted under the lease, not in hostility to it.

If in this action the plaintiff had recovered judgment awarding him possession under the lease, the cases cited would tend to support such a judgment. But the judgment recovered is hostile to the lease, and if permitted to stand, forever bars the defendant of all rights under it. (Code, § 1524.)

The judgment must be reversed. If upon a new trial the ' plaintiff elects to recognize the lease, an amendment of the complaint upon just terms may be open to him.

Judgment reversed, new trial granted, costs to abide event, reference discharged.

Bocees, J., concurred.

Learned, P. J.

(dissenting) j

The plaintiff makes title to the land, as follows : Prom 1850 to 1860 it was occupied by Stephen St. John. After 1860 it was occupied by his sons Enos and Adoniram St. John, till 1863. In that year, being in possession, they conveyed in fee, by quit-claim, to plaintiff, and the deed was recorded March 20, 1863. Plaintiff continued to occupy under this deed till about 1881, and then put his son Jeremiah on, who worked the farm as tenant for plaintiff, on shares, until he moved off in that same year.

This makes an apparent title in plaintiff.

The defendant makes title, as follows : He shows a grant in fee, reserving a perpetual rent-charge made by Stephen Yan Rensselaer to one Peter Snyder, May 5, 1794, and it is admitted that at that date the premises were subject to that lease. He shows that, before the action against Jeremiah Bradt, the interest of Yan Rensselaers in that lease had come to him ; that in 1881, many’years rent were due thereon, and that he commenced an action of ejectment March 21, 1881, against Jeremiah Bradt, solely for non-payment of rent; that Jeremiah made no defense; that he (Church) took judgment by default, issued execution, and was put into possession by the sheriff.

It is found that this plaintiff was not a party to that action and had no notice of it.

No evidence is given connecting the St. Johns or the plaintiff with the lease to Snyder.

The judgment against Jeremiah Bradt is not binding on this plaintiff. (Code Civ. Pro., §§ 1680, 1503.) According to Finnegan v. Carraher (47 N. Y., 493), this plaintiff Was a necessary party to that action, inasmuch as Jeremiah was his tenant, and he himself claimed adversely to the plaintiff in that action. (Code Civ. Pro., § 452; Bennett v. Leach, 25 Hun, 178.) To make this judgment binding on the plaintiff would be to revive the old fiction of the casual ejector. (3 Bl. Com., 203.)

Whether Church came peaceably into possession of the premises is not material in this case. Here the question is one of title, that is, whether the plaintiff or the defendant has title to the premises. So that it seems to be immaterial whether or not Church entered by a judgment against one under whom the plaintiff does not claim, or whether he entered by force.

This judgment did not even determine, as against' plaintiff, that there was rent in arrear on the Snyder, lease. And there is no evidence given that, at the time the present action was commenced, April 11, 1883, there was any rent in arrear on that lease. The only testimony on this subject refers to the 1st day of January, 1881, and not to April 11, 1883.

The defendant claims that the plaintiff is an assignee of Snyder. Assume that this be so, f'or the sake of the argument, then the plaintiff would be entitled to possession of the land. He could be deprived of it only by ejectment for non-payment of rent. (Jackson ex dem. Myer v. Elsworth, 20 Johns., 180.) And after judgment in such an action he would have six months in which to redeem. (Code Civ. Pro., § 1508.) This right he has lost, if tlia defendant’s position be correct. The defendant avers that the plaintiff can now redeem. But the six months have elapsed, and the privilege, it will be seen, is given to the defendant in the action, or one who has succeeded to his interest. This plaintiff was not the defendant in the ejectment action, and has not succeeded to the interest of the defendant therein.

But is there any evidence that plaintiff is an assignee of Snyder or claims under him ? The presumption that the lands continue subject to the lease exists as to all who claim under the lessee. That is all which is decided in Tompkins v. Snow (63 Barb., 525); Lyon v. Adde (Id., 89), or Lyon v. Odell (65 N. Y., 28). In every one of these cases it is stated that the party, as a fact, claimed under the lessee. The same is said in Whiting v. Edmunds (94 N. Y., 309). In that case Wellman was a tenant of Winehell, and the question discussed was whether Royal Torrey did not, as a matter of fact, buy the lease of Wellman and enter under it, instead of entering under another title. The court do not intimate that the fact of entering on the premises was presumptive evidence that Torrey entered under the lease. And the circumstance which tended to show that he did so enter was his alleged purchase of the lease. So, also, to the same effect are Crooked Lake Navigation Company v. Keuka Navigation Company (37 Hun, 9) and Jackson v. Davis (5 Cow., 123). In all these cases it has been a question of fact whether or not the party entered under a previous lease. The mere existence' of such a lease does not determine that question. When it is once shown that the party entered under a lease, then, of course, the presumption is that he holds under it, until that presumption is rebutted. But until it is shown that the party entered under the lease, there is no presumption arising from the existence of a lease, to which he was no party. His privity must be shown, and cannot be presumed without evidence. No case which is referred to by the defendant’s counsel shows that after a lease is once proved, every succeeding occupant becomes a tenant, whether he takes under the lease or not.

It is true that, once in as a tenant, a party cannot set up an adverse possession without first surrendering to the landlord or without some equivalent act. But then the point is that the plaintiff is not shown to have ever been in as a tenant. If the defendant’s position is correct it would be impossible for any person to enter on this land adversely to the defendant. Bor the defendant says that every pos. session of the land is presumed to be under the lease and therefore, cannot be adverse. But certainly it is a possible thing for one who is not an assignee of Snyder, and does not claim under him, to assert an adverse possession.

We must keep in mind that, while it may be convenient to speak of the instrument of 1794 as a lease, the courts have held that it operates as a deed of assignment with a rent charge reserved. (Van Rensselaer v. Dennison, 35 N. Y., 393.) The title, then, which the defendant rests upon is, by his evidence, shown to be in Snyder, subject to the rent charge. The defendant, therefore, cannot claim the fee by virtue simply of the assignments from Yan Rensselaer to him. There was no reversion in Yan Rensselaer.

The question, then, seems to be whether the referee was bound to hold, as a matter of law, that St. John and his sons and their grantee held under the deed of 1791, from the mere fact that their possession of the land was later in point of time than the date of the deed. He held the evidence failed to show that the plaintiff or his grantors entered under Yan Rensselaer or under Snyder, or that they had ever paid rent or recognized the existence of the relation of lessor and lessee of the premises, or that, while in their possession, the land was subject to the provisions of the lease.

The defendant should, if he could, have gone further and should have shown that St. John took title from Snyder or entered under him. But the defendant seems to wish to treat the plaintiff as tenant enough to be bound by the recovery against Jeremiah, but not as tenant enough to have a right to redeem the premises.

The judgment should be affirmed, with costs.

Judgment reversed, new trial granted, referee discharged, costs to abide event.


author: Learned, P. J.:

text:
    WALTER S. CHURCH, Appellant, v. JOHN T. SEELEY, Respondent.

      Rent charge — effect of a recovery, by the owner, of a portion of the land — apportionment of the rent — when it can be made — what amount is required'for redemption.

    In 1883 the plain tiff, who was the owner of the rents reserved in one of the Yan llensselaer leases, recovered in ejectment, for non-payment of rent, all of the land included in the lease except ten acres, and took possession thereof, which possession he still retained at the time when this action was brought, which was after the expiration of the time fixed by section 1508 of the Code of Civil Procedure for redemption. The amount due for rent at the time of the recovery in the first action was about $4,973.78, which amount, the court assumed, had been stated in the judgment as required by section 1507 of the said Code. The referee in this action, which was brought by the plaintiff to recover the remaining ten acres, found that the amount due at the time of the commencement thereof, on the whole lot, was $4,978.81, and that the amount due on the ten acres was $350.61, and gave judgment for the plaintiff for the latter amount.
    Upon an appeal by the plaintiff from the judgment entered thereon :

      Held, that it would seem that the plaintiff, by recovering and taking possession of a portion of the farm, had extinguished the whole rent; but as the defendant did not appeal, that question was not decided.
    That, assuming that this was not so. it was proper to apportion the rent, as well that accruing before as that accruing after the recovery in the first action, according to tbe value of the land held by the parties, and that the amount of the rent, as so apportioned, determined the amount which the party owning the part of the land which had not been recovered by the plaintiff m the first action would be required to pay to redeem such part of the land.
    Appeal from a judgment in favor of tbe defendant, entered upon tlie report of a referee.

      S. W. JRosendale, for the appellant.

      W. (& G. W. Youmans, for the respondent.
   Learned, P. J.:

The plaintiff is the owner of the rents reserved on two of the Yan Rensselaer leases; one called the Abbott and Russ lease, covering 152J acres, known as lot 402 ; the other called the Tubbs lease, covering 160 acres, known as lot 378. In 1882, the plaintiff recovered in ejectment, for non-payment of rent, all of the land included in the Abbott and Russ lease, except ten acres, and took possession of the same and still retains it, unless he has sold the property. Tn 1 SSI, the plaintiff recovered in ejectment, for nonpayment of rent, all of the land included in the Tubbs lease, except sixty acres, and took possession and still retains it, unless he has sold the property.

As the plaintiff is in possession, no redemption can have been made from those recoveries, and the time for redemption has passed. (Code, § 1508.)

The plaintiff being thus in possession of 140 acres of the first lease and 100 acres of the second lease, and being no longer liable to have them redeemed from him, commenced this action in 1883 to recover from the defendant ten acres of lot 402, and sixty acres of lot 378, occupied by him, for non-payment of rent.

The amount due for rent on the Abbott and Russ lease, lot 402, at the time of the recovery, in the ejectment action, was about $4,972.78 (the precise amount is not important), and that amount, it is assumed, was stated in the judgment therein, pursuant to Code, section 1507. The amount due for rent on the Tubbs lease, lot 378, at the time of the recovery, in the ejectment action, was about $2,953.82, and that amount was, it is assumed, in like manner stated in the judgment in that action.

The referee in this action finds that the actual amount due on lot 402, at the commencement of this action, was $4,978.81, and that the amount due on the ten acres sought to be recovered was $350.61; that the actual amount due on lot 378 at the commencement of the action was $2,975.45, and the amount in arrear on the sixty acres sought to be recovered was $410.50, making the total in arrear to the plaintiff, $761.11, and gives judgment for the plaintiff accordingly.

The plaintiff appeals and insists that the referee should have found that the total amount dne was $4,978.21 on lot 378 and $2,975.45 on lot 402, making in all $7,954.26. It is evident that, if the plaintiff is correct, a very great wrong is to be done to the defendant. The plaintiff, by his two preceding actions of ejectment has entered upon and acquired an irredeemable title to 240 acres out of the 310£ included in the two leases. lie now seeks to compel the defendant to pay $7,954.26 for the privilege of redeeming seventy acres; so that when the defendant shall have thus redeemed, and shall have paid all the rent which plaintiff claims to be in arrear on both leases, the plaintiff will retain his 240 acres and the defendant will have only the enjoyment of seventy. For no way is suggested by which the defendant can, by a redemption, gain any title to the 240 acres, or any rights against the plaintiff or against any other person.

The plaintiff claims that on one of such leases he may bring several actions of ejectment for rent in arrear; that, in the judgment recovered in each, he may state the full amount of rent in arrear on the whole lease, so that the redemption in each case shall require the payment of the whole rent. If this can be done where two persons are occupying separate parts of the leased premises, why may not several actions be brought against the same person for distinct portions of the same leased premises? -Whether Seeley, or some other person, was the occupant of the 240 acres is immaterial, so far as regards the justice of the plaintiff’s claim on this appeal. He has taken back (it matters not from whom) 240 acres of the leased premises, and now he would compel Seeley to pay the full arrears for the privilege of enjoying seventy acres.

The rent reserved in such leases has been decided to be a rent charge. (Van Rensselaer v. Hays, 19 N. Y., 68; Coke Litl., §§ 217, 218; Bacon’s Abrigt., Rent “ A.”) It does not seem to have been noticed that, since distress has been abolished, the rent has strictly become a rent seek. The peculiarity of a rent seek is that no distress is incident to it. And a rent, which was not a rent seek in its creation, may become such subsequently. (Coke Litl., § 225.)

The rule of the common law was that, while a rent service might be apportioned, a rent charge could not, with a few exceptions. (Coke Litl., § 222.) Indeed, the plaintiff’s argument rests on this proposition ; for he claims that the referee had no right to apportion the rent in this case, but was bound to state the whole as due the plaintiff. But it is worth noticing that, under the old common law, this proposition was applied in another way. If a man had a rent charge and purchased a parcel of the land, it was said, not that he could collect the whole rent out of the residue, but that all the rent charge was extinguished, and the annuity (that is the personal liability) also. (Id.)

Again, if the gran tee of a rent charge purchase any of the land, he is absolutely without remedy. (Bacon’s Abrigt. Annuity, C Rent, M. 1.) To the same effect, in Gilbert on Rents, 179. Because, says Gilbert, the rent issues out of every part of the land, and by the act of the grantee (-i. e., the landlord) it is impossible that the grant should operate in this manner. . That is, the landlord, by taking away a part of the land, has prevented the rent from- issuing out of the whole. Therefore it is extinguished. To the same effect, Brooke’s Abridgement, Apportionment, 28. So, too, if the landlord releases a part of the land. (Brooke’s Abrigt. Apportionment, 17.) Lord Coke explains the reason in the same manner. (Coke Litl., 147, b) This is recognized in Nellis v. Lathrop (22 Wend., 121.)

And, again, if a man grant a rent charge out of two acres and the grantee (that is, the so-called landlord) recover one acre by paramount title, the rent shall issue out of the other. (Coke Litl., 148, a.) Because this was the fault of the grantor (i. e., the tenant) to grant a rent out of what he did not own.

There were some cases where, either by agreement of parties or of necessity, a rent charge was apportioned. For instance, if title to a part came to the landlord, not by his own act, but by inheritance. (Coke Litl., § 224.) So if B make a lease for life to A. of one acre, and A. own another acre in fee, and grant a rent charge to B. out of both, and.then do waste in the first acre and B. recover that acre for the waste, the rent is apportioned; because A. shall not take advantage of his wrong in doing waste. And the whole rent cannot issue out of the other, because B has taken the one acre under the estate of A. (Coke Litl., 1486.) Bat the whole rent cannot issue, even in this case, from part of the land.

Again, in Bradley on Distress (p. 33), it is said that the grantee of a rent charge cannot sever any part of the land from the rent without extinguishing the whole rent. It has sometimes been said that if a part of the land is recovered by title paramount, the rent shall be apportioned. (Mayor v. Ketchum, 67 How. Pr., 161.) This was a case of rent service. (Lawrence v. French, 25 Wend., 443.) This statement does not notice the distinction made by Lord Coke, between the grant of a rent and the reservation of a rent. (Coke Litl., 148, b.) Even in the case of a lease for life or years, with clause of re-entry, if the lessor enter into any part, he cannot re-enter for rent in arrear after. (Brooke’s Abrigt. Condition, p. 193; Viner’s Ab., Bent, a 2; Brooke’s Abridgt. Apportionment 7.)

It may illustrate this matter further, to notice the remedy of the landlord. Where, as in a rent seek, he could not distrain, a demand and refusal made a disseissin ; and he could have an assise. (Coke Litl., § 233, fol. 153 b.) “ And in assise for rent seek, which sometimes was a rent service, all the tenants must be named, as in a rent charge, albeit he was disseised by one sole tenant.” (Coke Litl., 1506 and 155 b, note e [2d Am. Ed.]) Again, “where a man is disseised of a rent charge, or of a rent seek, it behoveth that all the tenants of the tenements charged be named in the writ of assise and all the land put in view, although he was disseised by one tenant only; but it is otherwise of a rent service.” (Fitz. Nat. Brev., 178 D.) This was, doubtless, for the reason above given, viz., that the rent charge or rent seek could not be apportioned; and a recovery of part of the land would extinguish the whole rent.

In the present case the defendant has not appealed. The question, therefore, whether, after the recoveries, any recovery could be had against this defendant does not arise. He is contented with the apportionment. It is the landlord who claims the -whole rent.

The defendant was not a party to the leases. He is only an assignee of part of the land. His personal liability is to be apportioned according to the value of his land. (Van Rensselaer v. Jones, 2 Barb., 643; Van Rensselaer v. Bradley, 3 Denio, 135; Van Rensselaer v. Gallup, 5 id., 454.) Now, if the extent of the defendant’s liability on the covenants as assignee of a part of the land is to be apportioned according to the value of the premises occupied by him, it seems most reasonable that only the sum thus ascertained should be stated as the amount to be paid by him for redemption.

We have already pointed out that the plaintiff, by his own acts, has put it out of the defendant’s power to redeem the whole premises. The plaintiff has thus forced upon the defendant an apportionment, assuming that the rent was not by plaintiff’s acts entirely extinguished.

The plaintiff urges that, admitting such apportionment to be just as to rent arising after the former recoveries, it does not apply to the previous rent. • We think this is not correct. The payment ■of the whole rent in arrear must be a redemption of the whole premises. (Code, § 1509.) If the plaintiff has prevented that ¡result, then the defendant, in order to redeem his part, cannot be liable to pay anything beyond a just apportionment. It does not lie with plaintiff to enforce against the defendant the doctrine that .a rent charge cannot be apportioned, when he has taken back to himself the greater part of the land out of which the rent was to issue, and when he has thus prevented a redemption of the whole premises by the payment of the rent in arrear on the "hole lease.

Judgment affirmed, with costs.

Bockes and Landon, JJ., concurred.

.Judgment affirmed, with costs.