Allen v. Brown, 60 Barb. 39

Allen v. Brown

60 Barb. 39 | N.Y. Sup. Ct. | 1871

Potter, J.

The estate which James J. Allen held in the premises in question before his relinquishment thereof to Henry White, the trustee, was an estate of inheritance, a freehold estate, capable of alienation—capable of being mortgaged—and was an estate in which the plaintiff, his wife, held an inchoate right of dower. This right she possessed by virtue of her husband’s being the lessee, for the life of certain persons whose names are mentioned in the lease. To defeat, or to protect her in this inchoate right, she was. made a party to the foreclosure suit. She was rightfully a party to this action. This foreclosure was upon a mortgage executed by her husband upon this leasehold estate. It was an estate, though defeasible, capable of being mortgaged. The mortgage was a conditional alienation of the estate. The mortgagee, thereupon, stood in the place, and possessed the rights, of James J. Allen, lessee, subject to the condition in the mortgage, and subject to the equities of Allen, and to the reversion of the'remainderman at the termination of the lives named. The rights of this mortgagee the landlord *43could not impair by any act of his; and his tenant, Allen, had no power by any voluntary act of his, to forfeit the estate he had aliened by mortgage. To the extent of that mortgage interest, the mortgagee possessed rights that the remainderman could only obtain by legal steps, as against him. Had Allen conveyed the whole estate, instead of a conditional one, it would hardly be claimed that he could forfeit an estate he did not own or possess. The question is not directly before us as to what judgment a court would or ought to render, in a case of willful waste committed by a tenant under such a covenant, after the tenant’s alienation of the estate; but I think it quite clear that the tenant could not, by a mere confession of waste, to the landlord, and without judicial action, without giving the mortgagee his day in court to protect or defend his rights, surrender up or convey away rights that he himself had previously aliened to another. His mortgagee possessed rights that the mortgagor could not confess away. True, Allen could ¿onfess away his own title to the. estate by a proper instrument; he could surrender his possession without writing, but not his title,. nor the title of his alienee. The surrender of an estate is required to be in writing. (2 R. S. 134, § 6.) The calling it a forfeiture, and agreeing it shall be á forfeiture, cannot dispense with the requirements of the statute, or change- its character. It was in effect the creation of a new estate, or an attempted creation, without the evidence of it being in writing. Ho such surrender is alleged or proved. (See Sackett v. Barnum, 22 Wend, 607; Bing, on Real Estate, 256.)

But I am unable to see how the plaintiff", who must be held to have entered into possession of the estate with her husband, and thereby acquired her inchoate rights, had not been foreclosed by the proceedings at law to which she was a party, and of which she had full and actual notice. The plaintiff, therefore, is in- no better condition in this respect than her husband. She was a party to the *44foreclosure suit. The merits of that suit, it must be presumed, have been adjudged, and she cannot resist the process issued to carry into effect that judgment against her right of possession. It ,was not alleged in her complaint, nor proved on the trial, that the claimed forfeiture had been adjudged by any court, or determined by any judicial proceeding; or that the mortgagee had been a party, or had given his consent; or that the surrender had been by writing. The condition in the- lease was not a limitation of the estate, which would authorize a landlord to take peaceable possession at its determination ; but the estate was a conditional one, which, I think, can only be determined by a trial and adjudication upon the rights of all the parties in interest. The mortgagee has had no judgment forfeiting his rights ; and has made no surrender of his interests. I think the judgment was right, and must be affirmed.

[Third Department, General Term, at Binghamton, June 6, 1871.

Miller, P. J., and Parker, J., concurred in the result.

Judgment affirmed.

Miller, P. J., and Potter and Parker, Justices.]