17 Johns. 158 | N.Y. Sup. Ct. | 1819
delivered the opinion of the court. In Betts v. Badger, (12 Johns. Reg. 223.) we laid down this rule, that if the party producing an instrument, on notice, is one of the parties to the instrument, the custody of the paper affords high presumptive evidence that he holds it as a muniment, and, prima facie, it is sufficient proof of the execution. The same rule was adopted by the Court of Common Pleas in England, in Pearce v. Hooper, (3 Taunt. 60.) In that case the chief justice observed, “ the mere possession of an instrument does not dispense with the necessity which lies on the party calling for it of producing the attesting witness.” He puts the case of an heir at law being in the possession of a will, and the devisee brings an ejectment, and calls on the heir to produce the will; then the heir claiming against the will, it would be hard that it should be taken to be proved against him because he produced it. Phillips, (346.) says, the result appears to be, that where a party to a suit, in
The objection, that notice to quit ought to have been given, is untenable. The relation of landlord and tenant never existed between the parties. Benton purchased the interest of the lessor of the plaintiff, as a lessee in the lease from Romayne. He was not to pay him any rent, but was subject to pay the rent to Romayne. The lease was never assigned in such manner, as to vest Renton with the title, and, consequently, the lessor of the plaintiff had the legal estate under the lease. As between them, it was an agreement to sell, and in such case notice to quit is unnecessary. (3 Johns. Rep. 422. 13 Johns. Rep. 106.)
A new trial must be granted, with costs to abide the event, on the first point.
New trial granted,
See Harden v. Kretsinger, post, 293. Jackson v. Cody, 9 Cowen, 140.