Armstrong v. Wheeler — 9 Cow. 88

Majority

p. 94

ARMSTRONG against WHEELER.

NEW YORK,

May, 1828.

Headnote

^ by a lessor, assignee °oTthe lessee, general suppoiTthe'aetion; as that the defendant is in posses-paS rent ^or claims and of-as his own,‘or

gained with the lessee and paid a consideration and sessLr&c^or any other^ acts assignment may be infer-This may as by showing that the defendant is an under tenant of th And^if "he is charged as as-whole, but is in truth assigpart, this is a VaButCe"where evidence enough is given, on a decíaW°as soie'as-

signee, to charge him 'prima facie as assignee, as that he bargained with the lessee and paid a consideration, and has been in possession for several years, though part of the time in common with another, but claimed the sole title, this is not rebutted merely by showing an actual assignment from the lessee to the one with whom he (the defendant) possessed in common. The assignee is liable for covenants broken only while he continues assignee; and ha may discharge himself of liability for any subsequent breaches, by assigning to another.

Error from the Dutchess common pleas. The plaintiff helow, Armstrong, declared in the court below in covenant ^or rent agaiñst the defendant there, Wheeler, as assignee of Jacob Loop, to whom the plaintiff below had leased certain premises, reserving an annual rent of ten dollars. The defendant below pleaded that he was not assignee of Loop ; r ° r on which fact the plaintiff below took issue..

the trial, the plaintiff below.proved the lease, to Loop in 1812; and that in 1815, ’16 or ’17, the defendant purchased the lot from Loop for a one horse waggon, and had *been in possession ever since, either by himself oras landhud, except one year. This proof was by parol. Edward Livingston and the defendant below occupied iointly from ” °. ' 1 J “ the spring of 1818 to the .spring of 1819. The defendant helow had frequently, since the occupation by Livingston, offered to sell the lot.

The defendant. below produced the original lease to pj00p) witp an assignment on it to Edward Livingston, dated the 12.th of June, 1818. It further appeared, that Livingston came to Red Hook, in the spring of 1818, and, as was reputed, purchased all the defendant’s real estate, . x including the lot in question. That he built a barn on this which was occupied by Livingston and the defendant below, till .the spring of 1819, when Livingston left Red Hook. Wheeler, the defendant, continued in the occupa- ^ the. barn and lot, till the fall of .1822, when he removed the barn. In 1823, the defendant below let the l°t on ¿hares, and received his share of the produce, and of the crop of rye, in 1824. a J

. . The court below charged the jury, that Lmngston was the legal assignee; and the mere occupancy of the prenn

p. 95

ess, by the defendant below, was not sufficient to charge him as assignee. The plaintiff below excepted, and the jury found a verdict for the defendant.

J. L. Wendell, for the plaintiff in error.

S. Sherwood, contra.

There is no question arising upon the pleadings. The declaration charges, in the usual form, that after the making of the lease, all the estate, interest and claim of the lessee, by assignment, came to and vested in the defendant. This fact is denied in the plea, and issue is taken upon it; and whether the evidence supports this allegation, is the only question.

Where the action is brought against the defendant, as assignee of a term, and the issue is on the assignment, it will be enough for the plaintiff to give .general evidence, from which an assignment may be inferred, as that the defendant *is in possession, or has paid rent.^[1] The defendant may show that he is not assignee; but only under-tenant to the lessee. (2 Ph. Ev. 89. 2 Stark. Ev. 437.)^[2] If the defendant is assignee of part of the estate, and is charged as assignee of the whole, the variance will be fatal. (Cowp. 766.)^[3] The assignee is only liable for covenants broken, while he is legal assignee; and he may discharge himself of his liability for any subsequent breaches, by making an assignment to another. (1 B. & P. 22. Dougl. 461, 2. 3 Burr. 1272.)

The evidence in this case is sufficient to warrant the inference of an assignment. Both the defendants below and the lessee declared that the defendant below had purchased, and the waggon was delivered as the consideration of the purchase. This was attempted to be rebutted by the actual assignment from Loop to Livingston. The evidence on that subject affords the presumption, that the assignment was the consummation of a contract of sale between the defendant and Livingston. He (Livingston)

[1] [1] Van Ranseller ex’rs v. Gallup, 5 Denio, 454 , 462.

[2] [2] 3 Phil. Ev. 3d ed. 150, 151. 12 Wen. 556. 2 id. 487 .

[3] [3] As to the pleadings, see farther, 3 Denio, 135 .

p. 96

ant was continually m possession, and after Livingston s departure, exercised acts of ownership as before Livingston came. He rented out the lot as his own, and received the rent. He offered to sell it as his own, not as agent for Liv ingston. This testimony so far from showing the defendant a sub-lessee or an agent, is prima facie sufficient, and, being uncontradicted, conclusive to show the defendant an assignee. purchased from the defendant all his real estate, as w~s reputed, in ~l8l8; and left the place in 1819, The defend-

In my judgment, therefore, the court below erred, and their judgment should be reversed.

Judgment reversed.