Livingston v. Haywood — 11 Johns. 429

Majority

p. 429

H. Livingston, by his next friend, M. Livingston, against Haywood.

NEW YORK,

October. 1814.

Headnote

^'-The statute, sot. sess. 36. c. ing the revermabderman^6" ¿0rn| ^ the'm ^¡'^tandin^' an mtervenmg or for years; g¡ves pgf. son in rever d°^°IJe^t¡oa ^ stranger only,

THIS was an action of trespass, tried at the Columbia circuit, before the late Chief Justice, in October, 1813. The premises on which the trespasses were committed were m the to wn of Grainger, and were lands leased by Henry IV. Living ston, now deceased, the father of the plaintiff. Part of the premises were leased to Moses Biosby, on the 1st of October, 1799, for the lives of Biosby and his wife. The other part was leased on the 1st of May, 1805, to Henry Pitcher, for the lives of himself and his wife. The leases contained covenants on the part of the lessees, their heirs and assigns, against cutting down, taking, or carrying away, any more wood or timber than should be actually used on the premises; and against committing, or suffering any waste or destruction thereof. The lessor, Henry W. Livingston, devised the premises to Mary Livingston, his wife, for life, and after her death, to the plaintiff, his heirs and assigns for ever. After the death of the lessor, the defendant sold, and permitted to be cut and carried away from the premises, at one time, fifty loads of wood. The defendant was in possession as assignee of the lessees.

The defendant’s counsel moved for a nonsuit, on the ground that the statute, under which the suit was brought, which gives an action of waste, or trespass, to the reversioner, for any injury done to the inheritance, did not apply to this case; but ivas intended to give the action of trespass against strangers only; and the Chief Justice be ing of that opinion, the plaintiff was nonsuited»

E. Williams, for the plaintiff.

By the act, (N. R. L. vol. 1. p. 527. sess. 36. c. 56. s. 33.) it is declared “ that it shall and may be lawful for any person, or persons, seised of an estate, in remainder or reversion, to maintain an action of waste or trespass for any injury done to the inheritance, notwithstanding any intervening estate for life or for years.”

The reason of this statute was, that as no person was entitled to an action of waste against a tenant for life, but he who had

p. 430

the immediate estate of inheritance, expectant on the determination of the estate for life, if between the estate of the tenant for life, who had committed waste, and the subsequent estate of inheritance, there was interposed an estate of freehold to any person in esse, the action of waste was, during the continuance of such interposed estate, suspended; and if the tenaz1- for life died during the continuance of such intervening estate, the action xvas gone for ever.^[1]

The statute gives the action of waste or trespass, and the plaintiff has elected to bring trespass. The judge xvas, therefore, incorrect in nonsuiting the plaintiff.

That covenant lies also in this case, is no objection to this action.^[2]

Van Burén, contra.

By a fair construction o'f the statute, it xvas intended to give the reversioner, or remainderman, an action of waste only against the tenant, and an action of trespass against a stranger. It is not pretended that there was any injury done to the freehold. If the judge was not correct in his construction of the statute, it would be most unjust, and ought to be repealed.

delivered the opinion of the court. This Is an action of trespass against the defendant, xvho holds the locus in quo, as assignee of the tenant for life, under a lease given by the ancestor of the plaintiff. The plaintiff claims as devisee in remainder, under the xvill of his father, in which the locus in quo is devised to his xvife, Mary, during her life, and after her death to the plaintiff) Henry Livingston, his heirs and assigns for ever.

The question is, xvhether an action of trespass xvill lie, by the devisee in remainder, during the continuance of the life estate. The statute, (1. N. R. L. 527.) which is supposed to authorize the action, is in these words : “ That it shall and may be lawful for any person, or persons, seised of an estate in reHiainde? or reversion, to maintain an action of waste or trespass, for any injury done to the inheritance, notwithstanding any intervening estate for life or years.” This statute creates a nexv remedy. The action of xvaste could not be maintained against a tenant for life, except by him xvho had the immediate estate of inheritance expectant on the determination of the

p. 431

estate for life. So that, if between the estate of the tenant for life, who commits waste, and the subsequent estate of inheri lance, there was interposed an estate of freehold, to any person in esse, during the continuance of such interposed estate, the action of waste was suspended. (1 Cruise, 70. s. 40.)

The plaintiff, Henry Livingston, stood in that situation, and. during the continuance of the life estate of Ms mother, could not, without the aid of the statute, maintain the action of waste. But the action of waste lies only against the tenant, or his assignee or heirs, and cannot be maintained against a stranger. Nor could any person, unless he was in the actual possession of the land, maintain trespass for an injury done to the inheritance. The statute must have been intended to provide for these two cases; to give the action of waste to the reversioner or remainderman,’against the tenant, notwithstanding any intervening estate for life or years; and the action of trespass against a stranger, notwithstanding he had not the actual possession. No other rational construction can be given to the statute. It cannot be pretended that it gives an action of waste against a stranger; and yet, from the words of the statute, this might be urged with the same propriety as that it gives trespass against the tenant. It must be understood, as giving to the remainder-man, or reversioner, an action of waste, where waste is the appropriate remedy, and trespass, where trespass is the appropriate remedy, notwithstanding any intervening estate for life or years. According to this construction, the plaintiff cannot maintain the action of trespass, and the motion to set aside the nonsuit must be denied.

Motion denied,