Majority
p. 422Jackson, ex dem. Whitbeck and Gardiniere, against Deyo. ALBANY, August, 1808.
Headnote
tion of eject-merit against the legal estate. le land, and who it infeeds not entitled to a notice to quit, previous to tion^oT^eject'ment; but there must be a tenancy, or existing reíation of landlord and tenant. An equitable title cannot be set up in an ac-THIS was an action of ejectment, for land in Kinder-hook. The cause was tried before Mr. Justice Van Ness, a¡. t}le Columbia circuit, in October, 1807.
Thomas L. Whitbeck became seised oí the premises in 1788, and died in 1798, without issue, leaving his father, 0ne of the lessors of the plaintiff, his heir at law.
The defendant produced a contract, under the hand and geaj Qf Thomas L. Whitbeck, dated 5th °fuly, 1796, by . which, in consideration of 20/. he covenanted to convey the premises in question in fee, to Christenda Goes and Jldie Goes. The payment of the consideration money was _ , , . - . , „ proved, and also an assignment ot the contract, and all tpe interest of Christenda Goes and Edie Goes, to Paulus Kane ; and also a deed from Paulus Kane and his wife, to the defendant, dated 5th December, 1801, with covenants of seisin and warranty.
The counsel for the defendant contended, that the evidence made out a legal defence in an action of ejectment ; and that, at least, the defendant was entitled to a previous notice to quit; but, under the direction of the judge, the jury found a verdict for the plaintiff.
A motion was now made for a new trial.
p. 423
E. Williams, for the defendant.
The first question is, whether the heir of Thomas L. Whitbeck, being a trustee» can maintain an action of ejectment against the cestui que trust. This contract being under the hands and seals of the parties, and for a valuable consideration, its anee would be enforced in a court of equity.
Spencer, J. It was expressly decided by this court, in the case of Jackson, ex dem. Smith & Bowne, v. Pierce,[1] that where the legal title is in the plaintiff, in an action of ejectment, the defendant will not be allowed to set up an equitable title against the action at law.
Williams. Then we claim the benefit of a notice to quit, on the authority of the decision of this court, in the case of Jackson, ex dem. Benton, v. Laughead.[2] If a mortgagor who has a mere right of redemption, on payment of the money, cannot be turned out of possession, without a previous notice to quit, a fortiori, the defendant having a beneficial interest in the land, and being in possession, is entitled to notice. The defendant does not hold the land by consent.
Van Beuren, contra,
was stopped by the court.
The defendant has only an equitable title which cannot prevail against the legal estate.[1] And he cannot be entitled to a notice to quit, since the defendant claims to hold in fee ; and there is no tenancy whatever. It never has been decided, that a notice to quit was necessary, unless, where the relation of landlord and tenant existed. A mortgagor is quasi tenant at will. But here» there is no semblance of any such relation. We might as well require a previous notice to quit in every case.
Judgment for the plaintiff.
‡ ‡ 12Johns. 221.