Lush v. Druse

By the Court, Savage, Ch. J.

The objection to the sufficiency of the proof of the lease was correctly overruled; the testimony given was all that is required by the rules of evidence. (4 Johns. R. 467.) I can see no possible objection to the allowance of interest. The value of the wheat became due on the first of February in each year, in consequence of the default of the defendant in not delivering the wheat according to contract; and interest is as much the right of the creditor after the principal becomes payable as the principal itself.

The defendant objected to the sufficiency of the proof of the value of the wheat, but on what ground is not stated. The proof was by a witness who had inquired of merchants dealing in the article, and examined their books. This, uncontradicted, was sufficient.

The defendant then objected that the plaintiff, having stated the seisin of her testator, was bound to prove it: which the judge overruled, and correctly. The defendant was es-topped from denying the title of the lessor.

It was also contended that the plaintiff should shew the appointment of some place in the city of Albany for the delivery of the wheat and notice to the defendant. It was the duty of the defendant to have called on the plaintiff to know where the plaintiff wished to have the wheat delivered, and then to have delivered it at such place. (Co. Litt. 210. 4. Cowen, 452.) In the case of Remsen v. Conklin, (18 Johns. R. 450,) this court seemed to intimate that upon a lease like the present, a tender upon the land would have been good, because rent issuing out of the land is payable on the land *318 where no place is appointed; but here a place is appointed, ancj 50 miles from the land. The authorities relied on in 18 Johnson, 450 , are Co. Litt. above referred to, and Bacon’s Abr. Tender, C. which refer to Coke. I understand both Littleton in the text and Coke in the commentary to be speaking of rent payable, but no place appointed; and in that case money, if the rent be payable in money, must be tendered to the landlord, if in the kingdom of England; if the rent issue out of the land, it is payable on the land, and a tender there is good. Here, however, the rent is payable in Albany; but the particular store house where the wheat is to be deposited is not named. What then is to be done 1 I hold the tenant is in the situation of an obligor, where the condition is to deliver 20 quarters of wheat, (to take the case put by Coke,) the obligor in such case must seek the obligee to know where he will appoint to receive it, and there it must be delivered.' If the landlord could not be found, still the wheat must be delivered at Albany; and any place in Albany, under such circumstances, would probably be sufficient. This discussion may be unnecessary, because in this case there is no pretence of a tender upon the land or any where else.

As to the other objection, that the defendant was not shewn to be in the possession of the premises, it is sufficient that he claimed to be the assignee, and asserted an interest in the premises, (9 Cowen, 89,) besides, it appeared that he afterwards paid rent.

The next and principal objections are, that there is in the lease a misdescription of the premises, and that there is a deficiency in the quantity of acres, entitling the tenant to an apportionment of rent.

The lot in question belongs to a small patent containing but four lots, being numbered from the north. That part of the description which gives the number of the lot is correct; but where the lease describes the lot by metes and bounds, it describes lot No. 4 of the same tract, which was never owned by the lessor, nor in the possession of the lessee or the defendant. The rule laid down by this court in 7 Johns. R. 228, as to the construction of grants, is this: “ If there are *319 certain particulars once sufficiently ascertained, which desígnate the thing intended to be granted, the addition of a circumstance, false or mistaken will not frustrate the grant.” The same rule is adopted in 17 Johns. R. 156, and 6 Cowen, 372. Every grant must be so construed, if possible, as to give effect to the intention of the parties. This lot is sufficiently described by the number and patent; and had the description stopped there, there could have been no ground of objection. The subsequent description by metes and bounds contains premises which the lessor never owned and did not intend to grant; nor did the lessee or the defendant ever suppose that any other premises than lot No. 2 were intended to be included in this lease, nor had they possession of any other premises. Here has been a practical location by the parties, which shews the mistake in the latter part of the description of the premises.

As to the last objection, it is answered that there has been a long acquiescence in the location, and payment of rent for the whole farm. There is no pretence of any eviction by a paramount title. The rent, moreover, is not payable by the acre ; 18 1-4 bushels are to be paid for the farm, which the lessor says contains one hundred acres. This assertion of quantity belongs to that part of the description which is not applicable to the lot really intended by both parties to be included in the lease. I reject all that follows after the number; and if the parties intended and supposed there were 100 acres, the quantity is mere description. It is the lot which is conveyed, and whether it contain more or less is not inquirable into in this action. (2 Johns. R. 37.)

I am therefore of opinion that the plaintiff must have judgment upon the verdict, with interest upon the rent after it was due till judgment.