12 Wend. 70 | N.Y. Sup. Ct. | 1834
By the Court,
It is said the record is defective because neither the summons nor the declaration recites or refers to the statute, (2 R. S. 334, § 1,) upon which this action is founded.
The action of waste at common law could only be brought “by him that hath the immediate estate of inheritance.” Co. Litt. 53, a. 3 Bl. Com. 227. See 13 Johns. R. 260, 11 id. 422, 1 Cruise, 70, § 40, 2 Saund. 252, a. n. 7. Our statute, 1 R. S. 750, § 8, 1 R. L. 527, has altered the law so far as to permit “ a person seised of an estate in remainder dr reversion,”
It is also perfectly settled that the plaintiff must set forth in the declaration how and in what manner he is entitled to the inheritance; thus, if he declares upon a lease made to the defendant by himself, he must allege a seisin in fee or in tail in himself; or if upon a lease made by the ancestor, he must state the seisin in fee of the ancestor, the demise to the defendant, and a descent to the plaintiff. Green v. Cole, 2 Saund. 235, 6, n. 2, and cases there cited. We have been referred to the case of Astor v. Whitehall, Cro. Eliz. 57, to show that the omission to set out the estate of the plaintiff would be cured after verdict. The report of that case is very obscure, and it is difficult to understand precisely the opinion of the judges upon the point, except that nothing was definitively determined. It'would seem that two of the judges were of opinion that no title need be set forth in the declaration, which is against the whole current of authority. Serjeant Williams . in the above note, says, it was in that case held by two judges, against the opinion of the other two, that the words “to: the disinheriting, ” in the declaration, cured the want of stating the quantity of the estate of which the plaintiff was seis-ed — but he obviously questions the soundness of the opinion ; and even the opinion of those two judges will not help the plaintiff here as these words are not found in the declaration in this case. In replevin the defendant is bound in his avow-ry, to set forth his title and the estate of which he is seised, to shew the authority under which he claims to exert the extraordinary power of distress, Harrison v. McIntosh, 1 Johns. R. 380, and Bain v. Clark, 10 id. 424, and the omission to do so is not cured by verdict. Idem. This case falls strictly within the principle upon which Bain v. Clark was determined. The title, and the only one that can give to the plaintiff this remedy is wholly defective; and there is no foundation for the presumption that it was proved and established by the verdict of the jury. It is not a title defectively set forth ; for the plaintiff has not undertaken to set out any title within the meaning of the rule in this action. He has no doubt been
Judgment reversed.