Lee v. Payne

By the Court, Pratt, P. J.

The action of waste, under the old English practice, was a remedy given for injury to lands, houses, woods, etc., by a *116 tenant thereof for life or years, to the injury or prejudice of the heir, or of him in the reversion, or remainder. It was either voluntary ov pemmsvoe ; the one by actual design, the other arising from mere negligence and want of sufficient care. The action was partly founded upon the Common Law, and partly- founded upon the Statute of Gloucester, and was a mixed action; real, so far as it recovered the realty injured j and personal, so far as it recovered the damages for the injury. Originally, and under the old practice, the action was brought for both of these specific purposes, and if the waste was proved on the trial, the plaintiff recovered not only the premises injured, but also the damages he had sustained by reason of the injury. The action for this double purpose-having fallen into disuse, was finally abolished in England by the Statute of 3d and 4th of William IY., Chap. 27.

In this country, although adopted in some of the States, if has been but very little used, having been, in practice, virtually superceded by the action on the case in the nature-of waste for the recovery of damages merely, or by a bill iff equity. In our own State, this action on the case is authorized by the statute. The first section of Chapter 110 of the Revised Statutes of 1846 expressly provides that, “ If any guardian, or any tenant by the curtesy, tenant in dower, or for term of life or years, or the assigns of any such tenant, shall commit or suffer any waste, during their several terms or estates, of the houses, gardens, orchards, lands or woods, or of any other thing belonging to the tenements so held, without having a lawful license in writing so to do, they shall respectively be liable to an action on the case, for such waste.” . The fifth section of this chapter provides, that such action may be brought by the person having the next immediate estate, in fee, or for life or years, in the premises in question : or by any person who has the remainder or reversion, etc.”

These provisions of our statute on this subject, are in. *117 accordance with the legal practice which has been adopted, aud long since fully established in England and in this country. It is, therefore, clear that if the plaintiff in the case under consideration has sustained any injury by the defendant in his reversionary interest, he may have his action in this form, to recover the damages he has sustained.

But it is contended on the part of the defendant in this cause, that there was never any legal privity between the plaintiff and the defendant; that inasmuch as the entire premises demised by the plaintiff in the lease were not assigned by Waite to the defendant, the relation of landlord and tenant between the plaintiff and defendant is not established, but that by reason of the exception, in the assignment of Waite to the defendant, of the house and lot, then occupied by the plaintiff the defendant became merely the under tenant and sub-lessee of Waite, and not his assignee of the premises, and that, as such sub-lessee he was only liable to Waite, and therefore could not be legally considered a tenant of the premises, under the lease of the plaintiff'. This cannot be sound legal doctrine on this subject. It is true that a mere under tenant or sub-lessee is not liable to the lessor. But what constitutes the legal distinction between an assignee and sub-lessee ? A lessee for years may assign his entire interest in the lease and premises, unless restrained by covenant not to assign without leave of the landlord, or he may underlet the whole or a part of the premises, for any less number of years than he himself holds. But if by deed he passes his interest for the whole term, it is, says Chancellor Kent, an assignment. But if it is for a less time than the whole term, it is an underlease, a sub-letting. The lessee so underleasing may distrain, or sue for the rent due on the underlease, but if he assigns over the whole term, he cannot distrain, because he has no estate left in reversion. It is true that the sub-lessee is not liable to the original landlord for the rent reserved in the original lease ; but at common law, his goods and chattels, while on the premises, may be *118 legally distrained for rent in arrear, by the original landlord* But an assignee of the lessee, for the whole term, is liable for the rent reserved in the' original lease ; or for any waste he may commit. The covenants to pay rent and keep the premises in • repair, etc., run with the land, and it is well settled that an assignee, at common law, is liable upon any of the covenants in the lease, that run with the land ; and when the defendant, in this case, went into possession of the premises, under the assignment of Waite, for the residue of the unexpired term, he voluntarily substituted himself in the place of the lessees, as tenant of the premises under the lease of the plaintiff, and assumed all the legal responsibilities of the lessees, to the lessor. The house and lot excepted from the assignment by Waite, in his assignment to the defendant, could make no legal difference. That does not constitute the true distinction between an assignee and sub-lessee. On this point, the case of Cox vs. Fenwick (4 Bibb, R., 538), is clearly analagous, and undoubtedly- settles the true legal doctrine on this point. In that case the declaration stated, that the plaintiff on the 31st day of October, 1803, demised to one Edwards, for the term of fifteen years, a tract of four hundred acres of land, with mills, etc., and for which Edwards agreed to pay annually a certain rent. Afterwards, and on the fifteenth day of October, 1806, the lessee assigned to the defendant the residue of the term, exce]3ting a small piece of the premises, on the east end thereof; averring a breach of the covenant by the defendant, in his failure to pay the rent reserved, etc. Judgment was rendered for the defendant on demurrer to the declaration; to reverse which the plaintiff sued out a writ of error, and removed the case into the Court of Appeals, where the Court, in its decision, say: “ The case must turn upon the point, whether the defendant is to be considered as a mere sub-lessee, or an assignee of the demised premises ; for if he is to be considered in the light of a mere sub-lessee, it is plain that he is only responsible to *119 his immediate lessor for tüe breach of such covenants as were entered into by him ; but if he is to be considered an assignee, then as the convenant to pay rent is one which runs with the land, it is equally plain that he is legally bound to perform according to the terms and conditions of the demise, and for any failure to do so, is responsible to the landlord, the same as the orignial lessee would have been. An assignee at common law i§ liable to an action upon any covenant, which runs with the land. Any one, therefore, who takes land as assignee of the lessee, must take it subject to all of its legal burdens. It is contended tor the defendant, that he was but a sub-lessee, and not an assignee, for the reason that the whole of the premises demised to the original lessee, was not transfered to him. But this (says the Court), does not constitute the true ground of distinction between a sub-lessee and an assignee ; for if a lessee transfer the premises for only a part of the term, he to whom they are tranferred is but a sub-lessee, and not liable to the original lessor. But if a lessee transfers only a part of the premises, but for the whole term, the person to whom the transfer is made must be, at common law, considered an assignee of the part of the premises transferred to him, and liable to the original lessor. ”

The assignment of "Waite to the defendant is full and explicit. By it, Waite, for the consideration therein expressed and acknowledged, “ bargained, sold, assigned and set.over to the defendant, all of his right, title and interest in or to the lease and the premises above mentioned (excepting the dwelling house and lot then occupied by the plaintiff), together with all of his estate, right, title and interest in and to the said lands, tenements and hereditaments, which he had by means of said lease, or otherwise, subject, however, to the rents and covenants in said lease contained.” The two prior assignments, the first, by Clark & Peck, the original lessees, to David C. Payne; and the second, by the said David C. Payne, to the said Johathan Gr. Waite, were each *120 substantially the same, in terms, to'the’last assignment made by Waite to the defendant, and equally full and explicit; both being the same as the last, subject to the rents and covenants contained in the lease. And, as appears by the evidence adduced by the plaintiff on the trial, and sent up with the case, the original lessees, and each of the assignees, went, in turn, into the possession of the premises, used and enjoyed the same; and that the defendant continued in the possession and use thereof up to, and including the time when the grist mill and distillery were destroyed by fire. In view of these facts, and the law of the case, no doubt can be entertained that the defendant entered into the possession and use of the premises, under the assignment to him, as assignee, and not as under tenant to Waite, and that in doing so, he did at once, in legal contemplation, enter into the relation of tenant to the plaintiff under the lease, and thereby rendered himself subject to all the the duties and obligations imposed by the lease on the original lessees. It must be so, for it is a well settled rule of law, that when the relation of landlord and tenant is once established, it attaches to all who may succeed the tenant, immediately or remotely. (Jackson vs. Davis, 5 Cow. R., 123; Jackson vs. Harsen, 7 Ib., 323; Byrne vs. Beeson, 1 Doug. R., 179.)

On the subject of the second question, presented by the case for the opinion of the Court, very little need be said. The instrument in writing, purporting to be an assignment of a certificate of purchase therein recited, etc., offered in evidence on the part of the defendant, at the trial of the cause in the Court below, was properly rejected by the Court, for several reasons:

1. The assignment, although duly proved, was not evidence of the genuineness of the. certificate of purchase • therein recited, nor could the recital be received as evidence in the place of the original certificate, without laying the proper *121 foundation for the introduction of such secondary evidence, and therefore properly rejected.

2. The certificate of purchase recited in the assignment, purported to have been executed and issued by “ J. C. Frink, for John D. Pierce, Superintendent of Public Instruction.” This was not an execution authorized by law. The certificate purported to have been issued on the 27th day of March) 1841. At that time certificates of purchase were issued by the Superintendent, under the provisions of the Revised Statutes of 1838, which expressly directed and required the Superintendent “ to make out and deliver to the purchaser a certificate, in the name of the People of this State, in his official capacity.” (R. S. of 1838, p. 252, Sec. 12.) This provision of the statute had not, at the date of the certificate, been repealed, or in any manner altered, by any subsequent Act of the Legislature, nor did the statutes contain any provision authorizing the appointment of a deputy, or the employment of a clerk by the Superintendent. The certificate was not, therefore, legally executed, not having been executed by the Superintendent himself “in his official capacity,” as required by statute; hence the evidence offered was properly rejected by the Court below on this ground.

3. Where the relation of landlord and tenant legally exists, the tenant is upon principle estopped from denying title in the landlord. If the original lessees of the premises in question had never assigned, and this suit had been brought by the plaintiff against them on the lease, clearly they would have been estopped from denying title in the lessor. “It was,” says Professor Greenleaf, “ an early rule of feudal policy, that the tenant should not be permitted to deny the title of his landlord, but as long as that relation existed, the title of the landlord was conclusively presumed, against the tenant, to be perfect and valid. And, though the feudal reasons of the rule have long since ceased, yet, other reasons of public *122 policy have arisen in their place, thereby preserving .the rule in its original vigor. A tenant, therefore, by indenture, is not permitted at this day to deny the title of his lessor. It is the essence of the contract, that the paramount ownership of the lessor shall be acknowledged by him during the continuance of the lease, and that possession shall be surrendered at its expiration. He could controvert the lessor’s title, without breaking the faith which he had pledged.” (1 Greenl. Ev., § 25. See also 2 Starkie on Ev., 305.) If the original lessees, in such a case, would have been estopped, the defendant Qlearly must be, for it is a well established principle of law, that where a party to a deed is estopped, all other persons claiming under or through him are equally bound by the estoppel. This principle was well settled in the case of Stow vs. Wyse. (7 Conn. R., 214.) The defendant was, therefore, properly prohibited, by the Court below, from introducing evidence, otherwise unexceptionable, which tended to affect or impeach the plaintiff’s title to the premises.

The next question presented by the case for the opinion of this Court, is, in some respects at least, a most extraordinary question for reservation. It contains four distinct propositions, upon which the Court is asked to charge the jury :

1. “That the evidence shows, that the only evidence of title which the plaintiff ever had in the premises, was, at the commencement of the suit, owned by George Barnes, of the city of New York.” The defendant, as appears by the case, offered certain evidence for the avowed purpose of proving this fact, which was rejected by the Court; hence, the evidence was not legally before the jury, or in the case, for any purpose. But if it had been admitted, clearly it would not have been within the legal province of the Court to instruct the jury, what the evidence, in fact, proved, as requested by the counsel for the defendant. Whether the evidence establishes the fact, sought to be proved by it, is a matter exclusively for the jury to determine, and not for the Court.

*123 2. “That the plaintiff cannot recover, unless he shows himself the reversioner in fee, or owner in fee, or entitled to an estate for years,” etc. It is a well settled principle of the common law, which has not been abrogated, or in any manner changed by statute, that in the action of waste, by the landlord against his tenant, the tenant by reason of privity, cannot plead that the lessor hath nothing in reversion. [Oohé’s Inst., 356 ; 7 Sao., Abe. 279.; 2 Ear. <& John. E-, 113.) If he cannot legally plead it, most assurredly he caiinot give evidence of the fact at the trial. In such an action, the lessor, in legal contemplation, is entitled to the reversion, so long as the tenant remains in possession of the premises, although he holds over the term. (1 Campbell's Nisi Prius R., 360; 8 East., 203; 9 East., 210.) In this suit, and as between these parties, the plaintiff is the legal claimant of the estate in reversion, and he alone has the only right of action against the defendant, for the waste alleged.

It clearly appears, by the evidence sent up in the case to this Court, that the plaintiff had been in actual possession and occupation of the premises a number of years prior to the execution of the lease thereof by him to Clark & Peck. This fact, in connection with the proof of the execution of the indenture of lease; the possession and occupation of the premises under it, by the original lessees; the execution of the several assignments, and the possession and occupation of the premises by the several assignees in succession under them, down to and including the defendant, constituted sufficient prima facie evidence of title, and a reversionary interest in the plaintiff. And the additional proof of the destruction of the grist mill and distillery by fire, through the carelessness and negligence of the defendant, while in possession of the premises under the assignment of Waite to him, together with proof of the plaintiff’s damage, was, beyond all doubt, sufficient to enable him prima facie to *124 recover in this action. The Court below was, therefore, right in refusing to instruct the jury, as requested on this point.

3. “ That there was no privity between the plaintiff and defendant, and that the defendant was not the tenant of the plaintiff, but the tenant of Jonathan G-. Waite, and that this action cannot be maintained against a sub-lessee.” It is-true, that if the defendant was merely the sub-lessee of Waite, there was no privity between the plaintiff' and defendant; consequently the plaintiff could not have maintained an action against him for waste; but it is not true in law, that the defendant was not the tenant of the plaintiff, The proposition, therefore, was double, and, as an entire distinct proposition, incorrect; and th-e Court properly refused to charge the jury as requested by this proposition. But this Court has already sufficiently expressed its opinion,, on both branches of the proposition.

4. “That the plaintiff’s only remedy, for the waste complained of, is given by chapter 110 of the Revised Statutes ; and that the plaintiff not having brought himself within the provisions of that statute, is not entitled to recover.” It is certainly very difficult to perceive, by this proposition, the object which the counsel had in view. Chapter 110 does not contain all the law in force, in relation to waste; nor is-it to be presumed that the Legislature intended to embrace- and codify, in this one chapter, all the law on that subject.It is in part a remedial statute, furnishing, among other new' remedies, a remedy to landlords, by actions on the case,, against their tenants for life, or years, for permissive waste,, which were unauthorized by the common law. The action then, in the case under consideration,, is clearly authorized by this chapter. But how, or in what manner in particular, the plaintiff has failed to bring himself legally within its-provisions, does not appear by the case, nor has the counsel furnished the information in his brief submitted. It was the business of the "counsel, in raising this objection, to have *125 stated wherein, and in what particular, the plaintiff had so failed; but not having done so, he can take nothing by the objection. On this ground alone, the Court below was justifiable in refusing to charge the jury as requested.

The fourth and only remaining question reserved for the opinion of this Court, is, whether the Court below errred in charging the jury, as stated and set out in the case. This is another very singular question for reservation; the entire charge of the Court below, on all the legal questions involved in the case1, is set out at length. If any exception was taken by the counsel to any particular part or point thereof, he was bound to specify, and state the grounds of his objection. But it is unauthorized by any practice which has ever been established, to bring,- by a case made and agreed upon, the whole of a lengthy charge of the Judge to a jury, and ask this Court to look it all over carefully, and see if any errors can be discovered in it. This Court, however, in this case, takes the question as reserved and presented, and say that, after a full and careful examination of the entire charge, no errors can be discovered in it.

Let it be, therefore, certified to the Circuit Court for the County of St. Joseph, as the opinion of this Court, that the motion for a new trial should be denied with costs.

Present, Pratt, Johnson, Copeland, Wing,- Creen, Douglass, J. J.