Jackson v. M'Evoy — 1 Cai. 151

Majority

p. 206

Jackson, on the demise of Winter, against M'Evoy, tenant in possession.

Headnote

In order to be admitted as a defendant in ejectment, a privity must be shown between the applicant and tenant. It is not enough for the party applying to swear he claims title, and has a real and substantial defence.

Woods applied to vacate the judgment entered against the casual ejector, and to admit Henry Masterton to be made defendant, on such terms as the court might be pleased to order.

The affidavit of Masterton set forth that the suit was instituted to recover possession of forty-five acres of land in the county of West Chester, to which he claimed title, and has a real and substantial defence to malee; that, on the 26th day of July last, the deponent discovered in the book of common rules of this court, that a rule for judgment against the casual ejector has been entered in the above cause, on the 12th day of May preceding; that the tenant in possession never informed the deponent of any declaration in the said suit having been served upon him, till a long time after the rule for -judgment had been entered ; that the deponent believed the knowledge of it was withheld from him, owing to a good understanding between the lessor of the plaintiff and the tenant in possession, to prevent that defence being made which the lessor of the plaintiff was, previous to the commencement of the above suit, told by the deponent he would make, and that on search he finds no record has been filed in the above cause.

These facts and allegations, he contended, were tanta

p. 207

mount to a positive assertion of title; that it was impossible without one to have a real and substantial defence. That nothing would be lost by the plaintiff, as a trial might be had at the circuit in September. That the question would then fairly come up whether the deponent or Winter was really entitled.

Woods.

Perhaps the affidavit does not go quite far enough in stating that expressly, but surely it may well be gathered from the whole.

*Emott, contra.

The deponent does not swear [*152] to any title; he only says he has a claim; he does not swear that he is the landlord; not even that there is a privity between him and the tenant. If, then¡ there is no title, if he is not landlord, and if there is no privity, how can he be made a defendant? If a man may thus come in and vacate a judgment, without any complaint from the tenant, there is not one which may not be set aside. There is nothing stated which shows that notice of the ejectment ought to have been given to the deponent. The tenant is not obliged to hunt out all persons who have claims; he can only be expected to communicate to his privies.

There does not appear to be any relation between Masterton and the tenant.

The party can take nothing by his motion.

Motion denied.^[1]

Lewis, Ch. J., absent.

(a) (a) The claim of the landlord to defend, is thought to be by statute. 1 Rev. Laws, 145, s. 30. Lord Holt says it is of right, Fenwick's Case, 1 Salk. 257, but though before the statute a landlord might have been let in to defend, the second provision of the section seems new. It has been determined that neither a devisee, where the ejectment is by the heir, nor a mortgagee, who has never received rent, Bull N. P. 95, nor a cestui que trust; who has never been in possession, Lovelock v. Doncaster, 3 D. & E. 783, are ’andlords within the statute; that a devisee in trust, Nonis v. Doncaster, 4 D. & E. 122, a mortgagee, Doe v. Cooper, 8 D. & E. 645, though the report does not say he had ever received rent, and a lord claiming by escheat, Fairclaim v. Shamtitle, 3 Burr. 1290, are landlords within. From this last *208 cited case, it would seem, that all who stand behind the tenant may come in to defend for their own interests. See Jackson, ex dem. Cantine and others, v. Stiles, (George Clark, tenant,) 4 Johns. Rep. 493 , as to admitting alien landlords. Slites v. Jackson, 1 Wend. Rep. 316 ; 6 Cow. 589 ; 5 Id. 447; Jackson v. Flint, 2 Cow. 594 ; 11 Johns. Rep. 407 ; Jackson v. Babcock, 17 Johns. Rep 112 ; N. Y. Code, s. 122.