Jackson ex dem. Walker v. Flint — 2 Cow. 594

Majority

p. 594

Jackson, ex dem. Walker, against Adolphus W. Flint

Headnote

One claiming in opposition to the title of the tenant is not entitled to be admitted defendant in ejectment with the tenant.

Nor, semi, is he entitled to be admitted 'a co-defendant with the landlord of the tenant, though he claim as tenant in common with such landlord, who is willing and .ing to im join-defend-

It was moved in this cause, that Alonzo Flint be admitted defendant, with his brother, A. W. Flint, the now defendant. and an affidavit of A. Flint was read, stating that this action was commenced against one Fowler, who was the tenant of A. W. Flint, who was, with the plaintiff’s consent, substituted as defendant instead of Fowler. That when Fowler entered under A. W. Flint, A. Flint was a minor, but is now of age, and claims an interest as tenant in common, with the defendant, A. W. Flint, both being heirs of E. Flint, their late father, with whose widow, the mother of the defendant and the deponent, one Henry intermarried. The affidavit set up that Henry fraudulently conveyed the premises in question to one Packard, and took a mortgage of Packard, and Packard then conveyed to A. W. Flint, the defendant; that A. W. Flint, before he was of age, made partial payments on the mortgage, but, on coming of age, and on learning the fraud, refused to make any further payments; that Henry had no just right to the premises, but that the same belonged to the heirs at law of F. Flint, of whom the deponent is one ; that Henry held, as guardian in socage of the heirs, so that in contemplation of law, they had never been out of possession ; that A. W. Flint had requested the deponent to join him in defending the suit.

For the plaintiff, an affidavit was read, that the defendant, A. W. Flint, entered into possession under a title from Packard, in 1816, claiming title to the whole premises, and continued to claim thus till about two years ago, when he leased the whole to Fowler, and received the rent to- his sole use, for several years in advance, and that A. Flint had never before the commencement of this suit claimed any title to the possession ; that the lessor of the plaintiff is an assignee of the mortgage, for valuable consideration paid to Henry; and as such assignee, brings this action.

p. 595

L. Beardsley, for the defendant and A. Flint,

said the term landlord, in the statute, (1 R. L. 443, s. 30,) extends to every case, where the person applying claims to defend on a title connected and consistent with the title of the defendant in possession. (Fairclaim v. Shamtitle, Burr. 1290, 1294. Adams on Ejectment, ed. by Mr. P. Ruggles, 228,230, 232, note (d), aud the cases there cited. Driver v. Lawrence, W. Bl. Rep. 1259.) The only exception is where the person applying claims adversely to the tenant. (Id.)

J D. Hammond, contra.

At common law, even a landlord could not be admitted to defend an ejectment brought against his tenant, without the consent of the latter. (Adams on Ej. 226.) By the statute, landlords may be admitted to defend with, or instead of their tenants ; and the utmost liberality of the Courts has never extended beyond the admission of landlords who claim title consistent with the possession of the occupier. (Adams on Ej. 231.) But where the person claims in opposition to the title of the tenant in possession, he can in no light be considered as landlord. (Id. 230.)

Now, Fowler, the tenant, claimed the whole of the premises, under a lease from A. W. Flint, who claimed the whole under a conveyance from Packard. The claim of Alonzo to part, as one of the heirs of his father, is clearly at war with the claim of Fowler to the whole; and, therefore, not within the rule.

The title set up by Alonzo Flint, and upon which he applies to be made co-defendant, is in plain hostility to that under which the defendant claims. The latter is a purchaser of Packard, who purchased of Henry and gave a mortgage, as assignee of which the lessor claims. The object of Alonzo is to defeat the title acquired under Packard. There is nothing like the relation of landlord and tenant between Alonzo and Fowler, or Alonzo and Adolphus.

Motion denied.