Majority
p. 34Jackson, ex dem. Smith and another, against Stewart. NEW-YORK, May, 1810.
Headnote
Where a pePsoii has entered into the possession of land under another,and acknowledged his title, he cannot set up, in defence to an action of ejectment, an outstanding title in -a third person. A lease was ex-reservin'” mu’ ■tvitii a clause ot re-entry for non-payment of tlie lessee died wife or children! no1 evidonc!?"oT a continuance of possession under him, or of payment of rent, and the ken0' possession held!8in'mg! ib'-1 ” nori-pa'\i ment of rent by tne lessor, 17nsto be presumed. Where an attorney undertakes to appear for a party in a cause, the court -will look no further, as to his authority.
THIS iras an action of ejectment, for lands in Kings- bury, in Washington county. The cause was tried at the Washington circuit, in June, 1809, before the. chief justice.
At tlie trial the plaintiff proved, that the defendant entered into possession under a contract to purchase, made by Zina Hitchcock, as attorney for the plaintiff, by virtue of a letter of substitution, from Clifford; of Philadelphia, who was believed to have been authorized to make such letter of substitution. The defendant acknowledged he held under the lessors,
It was proved, that about 22 or 23 years before, one Phnt was in possession, and acknowledged that he enter£d without title, and h.e surrendered, to Hitchcock, as agent to Joseph Smith, deceased, the father of the plain- , v 4 r tiff, (both of whom resided in Englandwho continued . N a y m possession until about 14 or 15 years before, when the, defendant applied to Hitchcock, as agent of Jo sePh Smith, deceased, to purchase. Hitchcock consentec^ t^lat ^le defendant should take possession, and the defendant agreed, verbally, for the purchase. The de
p. 35
iendant entered into possession, in which he has remained ever since. No writing was signed by him. The defendant frequently requested indulgence as to the payment of the purchase-money.
In November, 1808, before the commencement of this suit, the agent applied to the defendant, to have the contract for the sale reduced to writing, and to secure the payments. The defendant refused to do any thing; and alleged, as a reason, that he had agreed for an adverse title to the land from John Thurman.
It was further proved, that the defendant admitted that Orton Smith, the lessor, owned the land, and was son and heir of Joseph Smith, deceased.
The defendant then produced the counterpart of a lease from Joseph Smith to John Griffith, dated the 26th June, 1769, for the premises, which had been delivered by Clifford to Hitchcock, as agent. He then offered in evidence an assignment, on the back of the lease, -dated 28th May, 1807, of all the lands included in the lease, to Thomas Bradshaw. The assignment was executed by “ Orton Smith, by Zina Hitchcock, his attorney.” The defendant then offered to show, that the lease was regularly assigned by Bradshaw, and, after passing through several hands, came, by assignment, to the defendant.
This evidence was objected to, on the ground, that it did not appear that Hitchcock had authority from Smith to make the assignment, or that if he had, that he pursued his authority. Hitchcock then, on being asked, said, he thought he had authority, though not immediately from Orton Smith; that he had authority from Clifford, who assumed to be the agent of Smith ; and that he had sold to Bradshaw, under the authority from Clifford; and he produced a power of substitution, executed by Clifford. No original power from Smith was shown. The judge then rejected the assignment, as not proved to have been executed by Smith.
p. 36
The defendant then offered to prove, that Hitchcock, as agent of Smith, directed the suit to be commenced; but this evidence was rejected.
The defendant then produced the original lease, from ■ Joseph Smith to Griffiths. It was for 999 years, reserving one shilling per acre for rent, and with a clause of re-entry for non-payment of rent; and proved that 30 or 40 years before, Griffiths went into possession, and continued in possession until 1775, when he died without wife or children ; that during the war, a person, by the name of Tully, entered into part of the lot, and continued there about a year, but by what authority did not appear.
The judge permitted the lease to be read, as an ancient deed, but said that as it appeared to have lain dormant so long in the hands of the lessee, a re-entry was to be presumed; and a verdict was, thereupon, taken for the plaintiff, subject to the opinion of the court.
Weston, for the plaintiff;
Foot and Shepherd, contra.
This is a clear case for the plaintiff, The defendant entered into possession under the plaintiff, and acknowledged his title. He now attempts to shelter himself under a lease for ever, executed by Joseph Smith, the father of the plaintiff, in 1769. As an outstanding title in some third person, it was certainly not available. It was a lease, with a reservation of rent, and a clause of re-entry. The original lessee died in 1775, without wife or child, and we have no evidence of any continuation of the possession under him; and 22 years before the trial, we find the lessor taking possession again, and continuing it until the repent disclaimer by the defendant.
p. 37
In such a case, a regular re-entry was to be presumed, as was done in Jackeon ex dem. Goose, v. Demarest, (2 Caines, 382.) and which offered less ground for the presumption, than the present case. The defendant equally failed to show title in himself under that lease ; for there was no evidence that the plaintiff had ever assigned his reversionary interest. The claim, or the exercise of a power, tó make such an assignment by Clifford or Hitchcock, as attorneys for Smith, cannot affect Smith, without due proof of their authority from him, or of his recognition of their acts ; and there was not the least proof of either.
The attempt of the defendant, to question the authority of the attorney for the plaintiffs, in bringing the suit, was also unavailing. It is the course of the IC. B. said Ch. J. Holt, (l Salk. 86.) when an attorney takes upon himself to appear, to look no further, but to proceed, as.if the attorney had sufficient authority, and to leave the party to his action against him.
The plaintiff is, therefore, entitled to judgment.
Judgment for the plaintiff,