Jackson ex dem. Van Alen v. Rogers

On the argument for a new trial, in this cause, on behalf of the defendant, it was contended, that the lessor of the plaintiff ought not to recover. 1st. Because the lease from' Holland to M’Mechan amounted to a disseisin of Lowrens I. Van Alen, and destroyed his capacity to devise^

2d. That the second lease from Holland to M’Meehan, was still subsisting at the commencement of the suit, and was a 'legal impediment to the recovery.

3d. That the defendant, at all events, was to be deemed a tenant from year to year, and so entitled to six months’ notice to quit.

To constitute an actual disseisin or one in fact, there must be a tortious entry, and an expulsion. [1 Burr. 79. 1 Salk. 246.] No such fact appears, or was-pretended, in the present case,, nor was here a disseisin admitted by election. The distinction between a disseisin by election, as contradistinguished from a disseisin in fact, was taken for the benefit of the owner of the land, ¡and to extend to him the easy and desirable remedy by assize, instead of the more tedious remedy by a writ of entry. [1 Burr. 1Í0- Saunders on Uses, 240.] Whenever an act is done which of itself works an actual disseisin, it is still taken tó be an [*37] actual *disseisin, as if a tenant for years, or at will should enfeoff in. fee. On the other hand, those acts which are susceptible of being made disseisins-by election are no disseisins till the election of the party makes them so,

It may not be amiss for me to explain how I am to be understood, when I state it as a fact, that Van Aden aliened- in fee to Holland. It is obviouslyyto be collected from the proofs that Van Alen had made known his intention to give the lot for the benefit of Holland’s family; it is most probable, however, that he at first intended,the gift should.be by will, and, consequently, to wait until his own death, and that the pro- , perty -was to be secured in some manner, so that it should not be in the power of Holland-to dispose of it, but, finally, he consented that the gift should take place instantly, and to trust it to Holland himself; his declaration, or parols to Holland being, Well,' you may take the lot, and I will deduct sixty - pounds from- your wife’s portion.” This was a gift, still possibly to be viewed.as partaking of the nature of a sale; for although the lot was given, yet it was given at,a certain price or value, at which it was to have been charged, as an advancement to Holland’s wife. T do not, however,

1. Whether in a case of a parol alienation of land in fee, and an actual entry and consequent possession by the alienee, or his tenants thereupon, the alienor, although he may not have executed a deed, in writing, shall not, nevertheless, be deemed to be so out of possession, as to be incapable to devise it. Supposing the opinion of the court to be with the plaintiff on this question, then,

The questions between the parties are,

2. Whether the defendant may not affirm M’Mechan, his assignor, to have been a tenant for three years to Van Alen himself, from the 25th August, 1795, when the lease was renewed. by Holland to M’Mechan?

My reasoning on these questions will be concise, for it appears to me, the merits of them lie within a very narrow compass, It will be remarked, that I assume it, that until a deed in writing, whatever may have been the parol declarations of the alienor, the technical estate at law still remained in him, and on his dying intestate, it would descend to his heir, and that consequently, it never passed-to the alienee; the question, therefore, is more precisely this, can he also devise or otherwise dispose of it? Whether an estate in fee, could not have passed, by the common law, by parol only, need no longer be inquired into, since the statute for the prevention of frauds is express, that it cannot now pass, unless by writing. No other estate can pass to an alienee by parol, except the constructive estate at will, under the statute, and consequently, such alienee cannot pass

As to the second question, I have stated that the parol ■ gift of Van Alen was an alienation in fee, and in presentí,. as .distinguishable from a promise to alien in futuro ; l have, however, admitted that it was not effectual to pass an estate to Holland, except a constructive estate at will, and that Tan Alen might, at any time, have recalled his promise, and thereby have determined his will; I think notwithstanding, that it was sufficient to give Holland a right, or authority to enter, and .to make leases, equally effectual as if made immediately by Tan Alen himself; but the authority from Tan Alen" to Holland being by parol, the acts of Holland under that atithority, although in writing, cannot, as against Tan" Alen, have more validity than they could have, if they were by. parol only. The right, therefore, of "Van Alen to avoid the alienation of Holland, and the consequent acts of Holland, are to be subject to a right in "the lessees of Holland, if they choose to avail themselves-of it, to affirm themselves to be .tenants to Tan Alen for. three years, as .to every'lease which! might have been- made by Holland for that term,-or exceeding it; so that if at any time, during the . three first years of either of the leases, Tan Alen had questioned the right-of M’Mechan-to enter, and occupy,' M’Mechan might have pleaded- a lease from Tan Alen by .-parol, for three years, and have,-given the parol gift. of Tan "Alen :in evidence, in maintenance .of1 his plea: or, in other .words, as an act granting an .autho[*42] rity, *orpower to Holland, to make parol leases as durable, and in every respect as effectual against Tan Alen,

The grounds on which the present application is made, are, 1. That Lowrens Van Alen, under whose will the lessor of the plaintiff derives her title, was disseised previous to the time of making the devise, and so continued to the time of his death, and that his interest being thereby reduced to a right, nothing passed by the devise.

2d. That if there was no disseisin, then Holland or M’Mechan was tenant from year- to year, and entitled to notice to quit, or M’Mechan was tenant to Van Alen, under a subsisting lease, and, therefore, the plaintiff not entitled to recover. 1 •

3d. That the conduct of Van Alen savored of fraud, in hanging out deceptive lights to purchasers.

5th. That- the demise being laid previous to the election of the lessor of the plaintiff to be dispossessed, and not disseised, is erroneous, and that, therefore, the plaintiff ought riot to recover.

*5th. That the judge, who tried the cause, misdi- [*43] reeled the jury.

On the first point, the supposed disseisin was contended for, first on the ground of Holland’s being a tenant at will, and making a lease, for years, for which the case of Blunden v. Baugh (Cro. Car. 302) was relied on ; secondly, .because M’Mechan held adversely to Tan Alen-. It will be necessary to consider each ground. .

• It is unquestionable law that a disseisee- before re-entry, cannot convey, even by devise ; for by the disseisin, the fee is out of him. It is, .therefore, necessary to examine,-whether Tan Alen was disseised in either of the modes insisted on, or in any-other. That he-was not so by election is certain, for that.being for his benefit, and for the sake of the remedy merely, is effected only by bringing, an assize. ■ The disseisin, then, if any, must have been an actual or compulsory one,, that, is, in spite of him, or as it is termed, nolens volens; such as would have made the disseisor a good tenant to every prcecipe, without, taking away the right owner’s entry. To attempt an accurate definition of this species of disseisin with all its effects and consequences, would- be -vain, since ’we have the authority of L,ord Mansfield, ill the celebrated case of Tay lor, ex dem. Atkyns, v. Horde, for saying, that since, the abolition of military tenures, little of it is left us but the name, and that the more..we read, unless we are careful to distinguish, the more we shall be confounded. Thus much,.however, may be collected from the ancient writers' on the subject, that disseisin always implied a wrong, a personal trespass, and .'tortious ouster; but that all these might combine, without necessarily producing a disseisin. For according to Bracton, a freeholder by disseisin differed from a possessor by wrong, whom he calls an intruder, and describes as acquiring a naked possession, without any seisin ; and, in' the lan- , guage, of Lord Mansfield in the. case above cited, [*44J. i( this, species of disseisin must *mean turning the-ten- , . ant out of h'is tenure, and usurping his place and feudal relation, and at the present day, can exist only.in the ■case of fines with proclamation.”- .

Of the several modes of passing estates, by the act of parties, that by devise is most favored, because it is considered as being made in extremis, and oftentimes in articulo mortis. Thus we find in the case of Poussly v. Blackman, (Cro. Jac. 659,) that on a bargain and sale of lands conditioned to be void, on the payment of a sum of money, and that the bargainee should not enter until failure of the condition, and the bargainor failed to make payment, and the bargainee did not enter, but devised the lands, and died, this was held a good devise, on which the devisee could maintain ejectment. In Taylor, ex dem. Atkyns, v. Horde, this case is cited by Lord Mansfield, who observed, that from the manuscript report it appeared, that the point of decision was that the owner 'by making a devise, showed his election not to be disseised. So in the present case, Van Alen by devising the premises, elected not to be disseised.

*From these authorities, it necessarily results, that [*45] Van Allen was not disseised by Holland’s lease to M’Mechan. In the course of the examination of the second point, I shall show, that after the expiration of the lease for nine years, M’Mechan became tenant at sufferance, and so

2. The second point .is, whether the plaintiff is debarred from recovering by the want of notice, or by the subsisting lease for five years, in the concluding argument of the defendant’s counsel, the idea of Holland’s being a tenant at will was abandoned, and it was contended that M’Mechan was tenant from year to year, and, as such, entitled to a notice to quit. The only authority cited which in any manner applies to this part of the casé, is that of Dagget v. Snowden, ( 2 Black. Rep. 1224 .) The reports of Sir William Blackstone, though the production of an able judge, are not of the highest authority. They are posthumous works, edited by his executor who does not appear to have been a lawyer, and who has given them to the world, without their having undergone the last revisal intended by the author. The case, however, goes no further than to say, that certain tenancies at will are construed into tenancies from year to year, and that in such cases, a six months’ notice to quit is required, unless where a special agreement, or. a particular custom intervenes.. But it was not shown that the tenancy in question was of this description ; that it is not will appear from an examination of the latest authorities on the subject. The rule applies to those tenancies at will only, which are susceptible of a construction/ that will place them on a footing with tenancies from year to year; such as where an annual rent is reserved, and a holding over, by consent of the landlord. But when the lease is determinable on a certain event, or at a particular' period, no notice to quit is necessary; as was determined in the cases of Messenger v. Armstrong, and Right v. Darbey & Bristow, (1 Term Rep. 53, 159.) [,*46] *Neither is it necessary, where the tenant has done an act, disclaiming to hold as tenant to the landlord.

To apply this doctrine we must advert to the facts in the case'before us.' It is conceded that Holland never had. an interest in the premises, and that the only evidence, which looks like his having had an authority over them, was Van

The jury have, also, properly determined, that the second lease to M’Mechan, to wit, that for five years, was an unauthorized act on the part of Holland which Van Alen never had assented to or sanctioned. When, or from whom he received the information of it does not appear; it was not, however, from Holland, but *frbm strangers; [*47] and, finding the rent was reserved to Holland, who was addicted to liquor, and, of course that it would not benefit his children, he declared his disapprobation, and his intention of taking the property into his own hands. His death, which happened about nine months after the execution of the lease, most probably prevented the

I shall now proceed to show, as was intimated when the first point was under consideration, that, on the expiration of the first lease, M’Mechan if not a tenant at will,' stood in the relation of tenant at sufferance to Van Álen, and as such was not a disseisor, nor had he such a possession as would prevent the transmission of the inheritance. (1 Roll. Ab. 659. pi. 15.) “ If lessee for years, holds over his term, yet he is no disseisor, for this, that he comes in by act of the party; but he is tenant at sufferance.” In Co. Litt. 57 b. and the case of Rous v. Artois, 2 Leo. 45, the same law will be found.

That the possession of such a tenant" is no impediment to the passing of the landlord’s interest is established by the cáse of Poussly v. Blackman, before cited; as well as by the case of Willis v. Jermine, (2 Leo. 97.) A lease was there made to Jermine, rendering rent, and for default of payment to be void. The rent was afterwards demanded, but hot paid, and the lessor without entry, leased the lands to Willis, Jermine being in the actual possession, and it was held good, for that he was but tenant at sufferance; and Harris the counsel for the defendant agreed, that if Jermine was but a tenant at sufferance, the second lease was good. The interest of a tenant at sufferance is of so little consideration in law, especially when set up against the rights of his landlord, that his descent will not toll an entry. (Allen v. Hill, Cro. Eliz. 238.) His possession and pernancy of the profits, is insufficient, where he sells the inheritance, to protect himself against a prosecution for maintenance. (Pike v. Hassan, 3 Leo. 233.)

[*48] *3. The arguments on the third point, proceed rather on the ground of inconvenience than of law. The supposed imposition on purchasers, arising from Van Alen’s permitting certain lessees under Holland to enjoy their tenancy .during his life, would not be a sufficient reason for granting the effect of the present motion, were the facts as the defendant’s counsel have stated them. It is incumbent on every purchaser to look to the title of'the property he ac

4. The fourth ground of the application is, that the plaintiff has laid his demise -two years previous to the commencement of the suit, which determined his' lessor’s .election; hence it is inferred, if I understand the scope of the argument, that the demise is laid before the title accrued. Were this inference just, it would be decisive against the plaintiff in this action, and the case relied on, of Goodtitle v. Herbert, (4 Term Rep. 680,) would be in point. If 1 am accurate, as to the train of reasoning, the effect of an election has certainly been misunderstood. It has no relation to the title, but to the remedy alone. _“ When *the easy specific [*49] remedy was by assize,” says Lord Mansfield, in the case of Taylor, ex dem. Atlcyns, v. Horde, “ where the entry was not taken away, the injured owner might, for his benefit, elect to'consider the wrong as a disseisin. So, since an ejectment has become the easy specific remedy, he may^elect to call the wrong a dispossession.” And again, he observes, “where an ejectment is brought, there can be no disseisin ; because, the plaintiff may lay his demise when his title accrued, and recover the profits from the time of the demise.” This is precisely the case before u,s.

I have already shown from various authorities, that Tan Alen was neither disseised actually, nor by-election. To have" granted a nonsuit, therefore, on that ground, or to have charged the jury with a fact that did not exist, would have been erroneous in the extreme. The reference of" Holland’s interest to -the jury, was right upon "every principle. Whether he was or was" not a disseisor, is not, as has been mistakingly supposed, a question of law but of fact. Disseisin, says Lord-Mansfield, in the case last cited, is a fact to be [*50] found by a jury. The idea of ^Holland’s being a mere agent or attorney for his father-in-law, was first suggested by me in overruling the motion for a nonsuit; and, in the course of the- trial, was substantiated by an authority produced by" the plaintiff’s counsel. It-was controverted by the defendant, who insisted that Holland, if not a disseisor, had an interest which entitled him to notice; and that M’Mechan stood in his.place, by -virtue-of the lease for five years which was " produced in evidence. In this view, his interest'became a material object of the charge ; and when it is remembered that it was derived, if it-existed at all,, from a parol agreement the terms of which were to be collected from the testimony" of the witnesses, it was most indisputably a fact on which the jury alone were competent to decide. • It was also proper

It was also insisted, that I ought "to have'charged the jury, that there was sufficient evidence of Van Alen’s having authorized, or approved of the second lease to M’Meehan. This objection is a little singular, since the ground.of any authority was. not relied on at the trial; it may, nevertheless, be open to investigation.. I do not know that it is the duty of a judge peremptorily to decide on the weight of testimony, where there is room to "doubt; this is peculiarly the province of a "jury. The judge may, and, perhaps, ought to lay down to them the rules of investigation ; .but the cases which will justify his directing their determination are extremely rare in controverted causes. This was not a case of that description ; on the contrary *the acquiescence, if any, • [*51] was a matter of inference and for their exclusive inquiry and decision.

Under whatever aspect I view this cause, and I have endeavored to examine it in every light of which it is susceptible, on account of the important principlés it- involves, I am satisfied with the verdict, and that the defendant ouo-ht r O to take nothing by his motion.

Lansing, i Ch. j. declared himself to be of the same _ opinion.

Radcliff, J. having been concerned as counsel for the plaintiff, declined giving any opinion.

Rule refused.