Farmers' Loan & Trust Co. v. Kursch

Heacock conyeyed the premises in question in this suit to the defendant Kursch, who was in possession under Heacock’s deed, when this suit was commenced against him. Kursch refused, at first, to' defend the suit, but permitted Heacock to defend in his name. Heacock, accordingly, employed an attorney and counsel, and defended the suit, in Kursch’s name, but judgment was nevertheless rendered in favor of the

In Jackson v. Van Antwerp ( 1 Wend. 295 ), it was decided, that a landlord defending an ejectment in the name of his tenant, may he compelled to pay the costs of the suit; hut it is said, that this decision was overruled in subsequent cases. Mr. Justice Bronson did not intend to overrule it, nor to question its correctness, by what he said in Miller v. Adsit ( 18 Wend. 674 ). He notices the case, and regards the action of ejectment as standing on peculiar grounds. Miller v. Adsit was an action of replevin; and Bendernagle v. Cocks ( 19 Wend. 151 ), which is supposed to he at variance in principle with Jackson v. Van Antwerp, was an action on contract. Ryers v. Hedges ( 1 Hill 646 ) was an action of ejectment, in which the plaintiff moved that Bogert, who was alleged to be the defendant’s landlord, should be ordered to pay the costs, on the ground that he had defended the suit, unsuccessfully, in his tenant’s name; but the relation of landlord and tenant between them was denied both by Bogert and the defendant, and their denial was fortified by other affidavits, “ too strongly,” says Mr. Justice Cowen, “to warrant us in granting this motion, upon the present state of the proofs;” he further observes, that the decision in Jackson v. Van Antwerp was contrary to the principle of Miller v. Adsit; but in this he evidently differs in opinion with Mr. Justice Bronson. In another case, decided at the same term (Livingston v. Clements, 1 Hill 648 ), Cowen, J., says, he should doubt whether the landlord who defends a suit in the name of his tenant, can be called on by the plaintiff to

*The case of Jackson v. Van Antwerp was decided in 1828; at that time, and long before, there was a statutory provision, requiring the defendant in ejectment, holding the land as tenant of a third person, to give immediate notice thereof to his landlord; and authorizing the landlord to appear and' to become a defendant to the suit, jointly with the tenant; or alone, if the tenant refused to appear. (1 R. L. 443.) If, after becoming a defendant, he failed in his defence, judgment and execution went against him for the costs. The intent of the statute was, to give him an opportunity of defending his title, and to charge him with the costs, if he failed. The landlord has, frequently, and indeed, most commonly, a greater interest in defending the suit, and preventing a change of possession, than his tenant; and the statute secured him against collusion between the tenant and the plaintiff. The decision in the case of Jackson v. Van Antwerp (although the reason is not stated) is well founded on the principle that the landlord ought not, by collusion with, or favor of the tenant, to obtain the benefit which the statute gave him, without subjecting himself to the burden it imposed upon him. There is no statutory provision of the like nature in relation to actions for personal property. Miller v. Adsit was a case of that kind; and if the rule in that case influenced the subsequent cases Ryers v. Hedges, and Livingston v. Clements, I think, it was misapplied; and that the case of Jackson v. Van Antwerp was rightly decided, upon the distinction between the cases to which the statute referred to applied, and those to which it did not.

But the relation of landlord and tenant did not exist between Kursch, the defendant, and Heacock, who is

Ordered accordingly.