Jackson ex dem. Smith v. Stewarth

6 Johns. 34 | N.Y. Sup. Ct. | 1810

Per Curiam.

This is a clear case for the plaintiff, The defendant entered into possession under the plaintiff, and acknowledged his title. He now attempts to shelter himself under a lease for ever, executed by Joseph Smith, the father of the plaintiff, in 1769. As an outstanding title in some third person, it was certainly not available. It was a lease, with a reservation of rent, and a clause of re-entry. The original lessee died in 1775, without wife or child, and we have no evidence of any continuation of the possession under him; and 22 years before the trial, we find the lessor taking possession again, and continuing it until the repent disclaimer by the defendant.

In such a case, a regular re-entry was to be presumed, as was done in Jackeon ex dem. Goose, v. Demarest, (2 Caines, 382.) and which offered less ground for the presumption, than the present case. The defendant equally failed to show title in himself under that lease ; for there was no evidence that the plaintiff had ever assigned his reversionary interest. The claim, or the exercise of a power, tó make such an assignment by Clifford or Hitchcock, as attorneys for Smith, cannot affect Smith, without due proof of their authority from him, or of his recognition of their acts ; and there was not the least proof of either.

The attempt of the defendant, to question the authority of the attorney for the plaintiffs, in bringing the suit, was also unavailing. It is the course of the IC. B. said Ch. J. Holt, (l Salk. 86.) when an attorney takes upon himself to appear, to look no further, but to proceed, as.if the attorney had sufficient authority, and to leave the party to his action against him.

The plaintiff is, therefore, entitled to judgment.

Judgment for the plaintiff,