Jackson ex dem. Wilkins v. Lamb — 7 Cow. 431

Majority

p. 430

*Jackson, ex dem. Wilkins, against Lamb.

UTICA,

August, 1827.

Headnote

A lease of a large tract of land, purporting to be the foundation for a conveyance by lease and release, being produced; with prool that the lease was found among the papers of the lessee at his death, and also proof of a corresponding possession of a small part of the premises for 40 years, and of two other small parts for 20 years, and the release of a rent and reversion of another small part, by persons claiming under the lessee, with payment of rent; held:, that this would warrant a jury in presuming a release; the possession and other acts, as far as they appeared, being in accordance with the lease.

Held, also, that the lease itself was sufficiently proved as an ancient deed

EJEOTMENT for part of lot No. 1, in the su1~c1ivision of lot No. 1, in the 9th allotment of the patent of Kayaderosseras; tried at the Saratoga circuit, on the 11th day of December, 1824, before WALWORTH, 0. ~Judge.

At ~he trial, the plaintiff deduced a title from Peter Fauconier, one of the patentees, to Thomas Clark and. Peter Winnie, for 1-13th part of the patent of Kayaderosseras, and showed that Winnie, being seized in fee of the one undivided half of the 13th, on the 28th of August, 1753, devised all his real estate to several persons; and died so seized, the devisees surviving. That on the 20th of December, 1770, the patent was partitioned. Lpt No. 1, in the 9th allotment, and one lot in eacirof the other 25 allotments of the patent, were drawn to the share of Peter Faacollier; the 1-2 of all which lots so drawn being set off in this form to Winnie, or his devisees.

The plaintiff then produced certain fragments, or mutilated parts of a lease from the devisees to Daniel Oampbell,

p. 431

bearing date the 7th day of September, 1774, of 1-2 the geveral lots which had been drawn to the share ofFauconier. ip^jg ieagg was for the term of one year, reserving the rent of a pepper corn; and recited that the object of giving it was the support of a release in fee. The lease was in four separate pieces. The counsel for the defendant objected to its being received in evidence, unless its execution was first proved, with the execution of a release from the lessors "named in it to Campbell, the lessee. But the counsel for the plaintiff stating that he would accompany the lease with evidence of possession under it, for more than 30 years, and evidence to show that a release was probably executed, and had been lost, the judge permitted the lease to go to the jury.

The plaintiff then introduced a witness, who testified that the pieces produced were found by him in possession *of Joseph 0. Yates, Esq., in a chest of old papers belonging, (as the witness ■ supposed,) to the estate of Daniel Campbell, (the lessee,) now deceased. That at the time he found them, they appeared in the same mutilated condition as now. That Joseph C. Yates was reputed to be one of Campbell’s executors. The plaintiff then introduced John S. Vroman as a witness, who testified that he understood the papers of Campbell had beeen buried, in the revolutionary war; had gotten wet;- and, in consequence, many of them had become mutilated; that he had seen them in a state of mutilation and apparent injury as early as 1801 or 1802; and conveyed them from Campbell’s to Judge Yates’, in that state, in 1812.

The judge permitted the plaintiff *s counsel to exhibit the lease to the jury, without any other proof; stating that if the plaintiff proved a possession conformable to the lease, he should leave it to the jury, as a matter of fact, to determine whether the pieces were parts of one instrument; and whether a release had been executed and lost by time and accident.

The plaintiff then proved the will of Campbell, dated July 16th, 1801, devising all his real estate not leased or under contract for lease, (which included the premises in

p. 432

question,) to his wife, Angelica Campbell, in fee; and a lease from her, dated the 14th of June, 1811, of the premises in question, to Wilkins, the lessor of the plaintiff. By the same will, D. Campbell devised all his rents in fee to his wife for life; and after her death to his brother John, and his three children, to wit, Edward, Alexander, and Sally, in fee. D. Campbell died in 1802.

This was followed, on the part of the plaintiff, by proof of a release from Edward Campbell, one of D. Campbell’s devisees, dated in 1813, to Nathaniel Daniels, of the rent due upon, and reversion in lot No. 5, in the 17th allotment. The plaintiff also introduced and proved various leases in fee, from Daniel Campbell; one to F. W., dated April 20th, 1785, for part of lot No, 5, in the 14th allotment; one to H. P. A., for part of the same lot 5, dated February 4th, 1794, under which the lessee had been in possession "x"for more than 20 years: with two other leases; one of a lot in the 14th, and another of a lot in the 21st allotment. The plaintiff also proved that the tenants had paid rent on the above leases, to Daniel Campbell, and afterwards to his devisee, Angelica, for many years. These lands so leased were among the lands drawn to the share of Fauconier, and which were included in the mutilated lease to Campbell.

It was also proved by the plaintiff, that a part of lot No. I, distinct from the premises in question, was held under D. Campbell, and a clearing made by one Wilsie, 40 years before the trial; and that the possession had been continued to the time of the trial, under the same title.

The judge charged the jury that the testimony relative to the mutilation of papers, in connection with the fact, that part of this lot had been held under the Campbell title 40 years; and that all the other lots of which any evidence had been given, were held in fee under this title, and the pepper corn lease reciting that it was given to support a release in fee, would justify them in finding that a release was given, and that it had been lost by time and accident. That if they were satisfied of that fact, it would show a

p. 433

title in Mrs. Campbell at the time of giving the lease to w-1vir|S

The jury found for the plaintiff.

Various evidence was given, and various points raised at the trial, and at bar, beside what related to the proof of the lease, and the right of the jury to presume a release; but, as the supreme court regarded them as matters of fact, properly submitted to, and disposed of by the finding of the jury, it is not necessary to notice them here.

S. G. Huntington, for the defendant,

now moved for a new trial, on the ground (among others) that the plaintiff had failed in making out a conveyance to D. Campbell, He cited 10 John. 475 ; 3 John. Cas. 109.

J. L. Viele, contra,

referred to 1 Phil. Ev. 121, and the cases there cited; Cowp. 102; 11 East, 488; 9 John. 169 ; 10 John. 377 .

All that was wanting to complete the plaintiff’s title, was a release from the devisees of Peter Winnie. The facts are certainly sufficient to warrant the presumption of a release. The lease for a year, preserved for a long time among Campbell’s papers, the possession of 40 years upon part of lot Ho. 1, and the possession of other lots in the patent belonging to the same right, are abundantly sufficient to authorize the presumption.^[1]

Hew trial denied.

[1] [1] It has been strongly intimated, though not directly decided, that delay by a landlord for twenty years, to enter for a forfeiture of his tenant's right, by the non-fulfilment of a condition, shall, under the statute of limitations, operate as a bar to his right of entry. (Per Lord Kenyon, C. J., and Ashhurst, J., in Doe, dem. Tarrant, v. Hellier, 3 T. R. 172, 173) That long delay would be a powerful argument for waiver of the right, in connection with other circumstances; and that it would in time, per se, be full evidence of a waiver, there can be no doubt: (Doe, dem. Tarrant, v. Hellier, 3 T. R. 162; Malone v. Malone, 1 Ball & Beat. 32, note (a);) a distinct act, or even a declaration directly incompatible with the idea of insisting on the forfeiture, done or made after, and with knowledge that it is incurred, will be adopted *434 as a waiver. (Milfax v. Baker, 1 Lev. 26. Malone v. Malone, 1 Ball & Beat. 32, note (a) But, for this subject at large, see vol. 2. So, on the other hand, a re-entry for breach of condition, regular and formal at the common law, may be presumed from the lapse of time during which the lessor has possessed. This has been done after 14 years. Jackson, ex dem. Goose, v. Demarest, 2 Cain, Rep. 382 . Jackson, ex dem. Smith, v. Stewart, 6 John. Rep. 34 .) But it was denied that nine years’ possession would warrant the presumption. (Jackson, ex dem. Donnally, v. Walsh, 3 John. Rep. 226 .) And in a subsequent case, it is declared that any time short of 14 years is not enough. (Jackson, ex dem. Myers, v. Elsworth, 20 John. Rep. 180 .) After one lease given for 81 years to one, and then a second and third lease by the reversioner to another, the original lessee being out of possession, leaving the latter lessees or their assignees in possession, who paid rent for a long time, a surrender or assignment of the first was presumed. (We stropp's lessee v. Moore, 2 Fox and Smith, 363.)