Jackson ex dem. Livingston v. Kisselbrack — 10 Johns. 336

Majority

p. 340

Jackson, ex dem. Livingston, against Kisselbrack.

ALBANY,

August, 1813.

Headnote

greement^ia%míoi^,ra¿ ■between t. St K« stated that L. “ hath set lenmto Jtr^aii y? ‘\forthe rent of so good winter wheat, %?dduring tlie term of the natural ■Ufe of K. and tiie plácete be ^or'before °the is# June next, said K. is to for%esamef’ &c. K.having held possession for 14 pakíven "unment*it?was heidto amount present demise¡ having passed ro l evid’ence wastñadmis memoran.1___zxf ~~ „ _

THIS was an action of ejectment for lands in the town of Gallatin, in the. manor of Livingston. The cause was tried in September, 1812, before Mr. Justice Van Ness.

The title of the lessor to the manor of Livingston was admit - ted. The defendant gave in evidence the following instrument: “ Memorandum of an agreement made the 15th January, 1798, between Henry Livingston, of Ancram, and Yury Kisselbrack, of the town of Livingston, witnesseth, that the said Henry Livingston hath set and to farm let unto the said Yury Kisselbruck that farm, &c. situate, &c. in the manor of Livingston, See. .for the rent of 20 bushels of good winter wheat and four fat hens, yearly and every year, for and during the term of the natural life of him the said Yury and Elsie his wife, the place to be surveyed before the 1st day of June next ensuing this date, and then the said Yury Kisselbrack is to take a lease for the same: and in consideration that the said Yury has never paid the said Henry purchase-money, it is mutually agreed between them, that if the said Yury sells or assigns over the place, he or his heirs shall . , __ . . , - , „ , pay the said Henry, or his heirs, the one third part of the money be sells or assigns the same for. It is further understood by the to these presents, that the first rent is to be paid on,the 1st day of January, 1799, and the farm to contain 80 acres of land, In witness,” &C.

The defendant also gave in evidence a receipt, dated February, 1810, for 41 bushels of wheat, for rent.

The plaintiff proved a notice to quit served by him on the defondant, dated 17th August, 1811, for the 1st March, 1812? The demise laid in the declaration was on the 1st January, 1812.

To show a disclaimer, the plaintiff called a witness who stated that in the winter of 1811, the defendant said the lessor owned only two pieces of land in the manor of Livingston, neither of which included the premises. In the spring of 1811, the witness informed the defendant that his lease was made out, and advised him to take it and pay his rent as usual; and the defendant refused to take his lease, and comply with the terms of his agreement ; and expressly denied the plaintiff’s title. Several other witnesses were sworn to the same point.

p. 341

A verdict was taken for the plaintiff, subject to the opinion of the court on a case containing the above facts.

The case was submitted to the court without argument.

delivered the opinion of the court. The question presented by this case is, whether the instrumentproducedamounted to an actual lease, or only to an agreement for a lease. There are words of present demise, to wit, “ Hath set and to farm let” The estate granted and the terms of the demise are quite definitive and explicit; but it provides that a lease shall be given at a future day. This last circumstance has generally given a character to •the instrument, of an agreement for a lease, as contradistinguished from a present demise. None of the cases will be found to contradict the position that where there are apt words of present de. mise, and to these are superadded a covenant for a further lease, the instrument is to be considered as a lease, and the covenant as operating in the nature of a covenant for further assurance. In Goodtitle v. Way, (1 Term Rep. 735.) Doe v. Clare, (2 Term Rep. 735.) Doe v. Ashburner, (5 Term Rep. 163.) Doe v. Smith, (6 East, 530.) there were no words aptly and precisely importing present demises, and it was held that in providing for the execution of leases, in futuro, it was the intention of the parties that the instruments should not operate as leases. In Doe v. Ashburner, (5 Term Rep. 163.) the case of Barry v. Nugent, in error from the king’s bench in Ireland, was admitted by Lord Kenyon to be correctly decided. The words were, “ be it remembered that J. Barry hath let, and, by these presents, doth demise.” The instrument contained an agreement that leases, with powers of distress and clauses of re-entry, &c. be drawn and signed at the request of either party. On this case the court of king’s bench was clearly of opinion that the articles operated as a present demise; and that the agreement for a more formal lease was merely in further assurance. In speaking of this case, Lord Kenyon said the words were express and unequivocal, and could have no other meaning than that given to them, namely, that they should operate as a present demise. The case of Baxter v Browne (2 Bl. Rep. 973.) is much in point. The agreement was to grant a lease to Browne of the premises, and they did thereby set and let to him all, &c. provided that the said lease shall be void, on non-payment of rent, &c. and that such lease shall contain the usual covenants, &c« The defendant entered in

p. 342

pursuance of the agreement, and paid rent; and it was held b~' all the judges, that it was clearly a good lease in presenti, with au agreement to execute a more formal and perfect lease in fitturo. They observed that the operative words let and set are in the present tense; they laid stress on the fact that there had been a possession of 14 years, and the acceptance of rent, observing, “ that under such circumstances, if the words of the lease can import an immediate legal demise, the court will support it as auch;” and they add, “ that it will be evident from the cases cited which we have looked into and compared.”

In the present case, the lease contained words of present demise, and the defendant has held under it for about fourteen years. It is impossible to distinguish this case from Baxter v. Browne; and I presume, after so long a possession under the instrument, and an acquiescence by the lessor of the plaintiff, the court will give it the construction contended for by the defendant, if they legally can. It is unnecessary to compare and examine the various cases which have been determined, involving the consideration of a lease, or an agreement for a lease; it is believed that there is no case of a present demise, by apt words, followed by a possession, in which the instrument has not been held to pass an immediate interest.

If an interest passed, no subsequent disclaimer by parol can abrogate it, for a freehold interest cannot be devested by words in pais. (3 Cruise, 367.)

Judgment for the defendant.