Jackson ex dem. Simmons v. Chase — 2 Johns. 84

Majority

p. 83

Jackson, ex dem. Simmons and others against Chase.

Headnote

This was an action of ejectment, to recover land in Westfield, in the county of Washington. The cause was tried on the 16th of June, 1806, at the circuit, held in that county, before Mr. Chief Justice Kent.

The plaintiff gave in evidence a deed from William Harris to Osgood and Lewis, two of the lessors of the plaintiff, for the premises in question, dated the 15th of

A conveyed land to B and took a mortgage from B for the same land, to secure the purchase money. B a, greed to let (5 have the land, and C took

p. 84

June,'1797, a release from Lewis to Osgood, dated the 22d of February, 1804, and a deed from Osgood to Simmons, the other lessor of the plaintiff,- dated the 18th of March, 1804. The possession of the defendant, as to ten acres, parcel of . the premises, was admitted.

possession undei* this agreement. A aiid. '> afterward agreed to cancel their respective deeds, and B gave back the deed which was cancelled, and A returned the mortgage to B to bfe also can-, celled. In an action of ejectment brought by persons holding by conveyance fromA against C to recover the possession, it was neld, that the legal title was in A, and thatIhe person claiming under him must recover, and 'hat C not being a tenant or morgagor, was not entitled to a previous notice to quit.

The defendant proved, by William Harris, that two or three years prior to the conveyance to Osgood and Lewis, he had conveyed the land to one Samuel Slow, from whom he took a mortgage of the same land, as a security for the payment of the purchase money. That some time afterwards, and before the conveyance to Osgood and Lewis, Stow returned the deed to Harris to be cancelled, and Harris gave up-the mortgage to Stow for the same purpose. Whether Stow cancelled the mortgage or not, did not appear. The defendant also gave in evidence, a certifícate in writing, dated in 1805, from Stow, in which he certified that he had received from the defendant, twelve dollars, and that he had agreed to give him a conveyance for the land, but had not done so. Harris also testified, that at the time he executed the deed to Osgood and -Lewis, there was a.parol agreement between them, that they would convey to the defendant the ten acres, which he had been in possession of for two or three years, and of which he took possession, under a contract with Stow, when he held the fee of the land. The counsel for the defendant then moved for a nonsuit, on the following grounds. 1st. Because William ^Harris had parted with his interest in the land before he conveyed it to Osgood and Lewis. 2d. Because the defendant had an equitable title to the premises, and ought to be protected in his possession. 3d. Because the defendant had received no notice to quit the possession prior to the commencement of the suit.

The judge overruled these objections, and the jury found a verdict for the plaintiff.

A motion was now made to set aside the verdict, and for a new trial.

p. 85

Shepherd, for the defendant.

The contract made with the defendant ought to be considered in the sanie manner as if it were a contract to transfer personal property, unless it be within the statute of frauds. Here there was a part performance of the parol agreement, by the defendant’s taking possession in pursuance of that agreement. This is sufficient to take it out of the operation of the statute.- Where a chose in action is assigned, and notice of the assignment is given to the debtor, the assignee may recover the money in a court of law. This is a departure from the former strict rules of the common law. The present is a cause equally entitled to the equitable interference of a court of law; for it would be hard to turn the defendant out of possession, and compel him to seek rpdress in a court of chancery. A court of law will not suffer a legal estate to be set up in ejectment to defeat the interest of the cestuy que trust.^[1] If ever there was a case, in which a tenant ought to be protected, it is the present. It was expressly agreed between the person under whom the lessors of the plaintiff claim, and the defendant, that the ten acres should be conveyed to him. A person, holding under another, is bound by the acts and agreements of the person under whom he claims.

■ 2. The legal estate was shown to be in Stow. The cancelling of the deed did not destroy this legal estate ; the deed was not produced, nor proved to have been destroyed. The title derived by the défendant from Stow, was not defeated or destroyed by mortgage.

3. The defendant was entitled to notice to quit. He came into possession by the permission-of a person who had the power and right to give liim possession. He must be considered as entering bn the premises with license frpm a person having the legal title. The case of Jackson ex dem. Livingston v. Bryan^[2] was decided on this principle.

Foot, contra.

The lessors of the plaintiff being bona fide purchasers, without notice, have as much equity as

p. 86

the defendant, and having also the legal title, they ought to prevail. The defendant ought to have taken due care to obtain, a title before he went into possession.

2. The parties agreed to cancel the release and the mortgage. If one deed is to be considered as cancelled, the other must also be deemed cancelled. The legal estate was not out of Harris; for the same legal title he conveyed to Stow was immediately re-conveyed to him by the mortgage.

3. In the case of Livingston v. Bryan, there was a tenancy, or an use and occupation by the defendant. Here the defendant took possession as a purchaser; he cannot be considered in any sense as a tenant, so as to be entitled to a notice to quit.

delivered the opinion of the court. Admitting that Chase had an equitable interest, still that interest cannot prevail at law against the legal estate. If it appear that the legal right exists in the lessors of the plaintiff, the first and second objections wholly fail. The giving up and cancelling the deed and mortgage between Harris and Stow, either made those deeds perfect nullities, or vested the title again in Harris. If the latter be the case, then the plaintiffs, having deduced a title from Harris, are entitled to recover. If, on the contrary, such re-delivery did not devest the property which had passed by the deed and mortgage respectively; then Harris had the legal estate by virtue of his mortgage from Stow, and by his deed to the lessors, that legal estáte passed and became vested in them. I am inclined to think the latter is the title on which the plaintiffs are entitled to recover. The mere cancelling a deed of lands, does not devest property which has once vested by transmutation of possession,^[1] and, therefore, Harris in my estimation only conveyed to the lessors, or to those under ^0111 t^ey c]a¡m, the right derived under Stow's mortgage to him. The legal estate passes, to the assignee of

* 2 H. Blk. 263, 264, Bolton v Calile. 3 Term. 156.

p. 87

a mortgage, or grantee of the mortgagee, and he can maintain ejectment thereon.^[2]

The third point, and which was urged with apparent confidence, upon the argument, is that Chase the defendant, was entitled to a notice to quit. He is not a mortgagor in possession, and therefore not within the principle decided in the case of Jackson v Laughhead,^[3] relative to a notice to quit to a mortgagor in possession. The relation of landlord and tenant does not subsist between him and the lessors of the plaintiff, for there is no privity between them ; indeed, he claims to hold under a title adverse to theirs. He is not then entitled to notice. Tlae opinion of the court therefore is, that a new trial ought not to be granted.

Rule refused.

† † 3 East, 349, Weaver v. Belcher.

‡ ‡ Ante, p. 75.