19 Wend. 175 | N.Y. Sup. Ct. | 1838
By the Court,
I do not collect from the case that the question of excess in Lawrence’s survey, of three or four acres over the two hundred intended to be conveyed to the defendant, was either submitted to the jury or passed upon by them. Certainly it could not be made available as in itself the ground of recovery: The words of exact restriction to two hundred acres and no more in the deed to the defendant could never be allowed to supersede or control a palpable description, so easily traceable as was the Lawrence survey, through its monuments, courses and distances.
The acquiescence of John S. Suffern for a length of time in the lines as run by Lawrence, was put to the jury as ev
The remaining question respects the demises laid in the declaration. John Suffern having by his deed transferred all his title to John S. Suffern and wife, the demise from the former became unavailable; and it was objected upon the trial, that the title residing in the two latter, the declaration should have stated a joint lease from them to the plaintiff. No doubt the plaintiff was bound to show such a title as enabled him to make a separate demise, as he has laid it in his declaration. Doe, ex dem. Marston v. Butler, 3 Wendell, 149. In examining the power of the lessor to demise, the first question is, whether he have a right of entry, Adams’ Eject. Tillinghast’s ed. 10; and it was not denied, in this instance, that such a right passed by the deed to John S. and wife- Could the former alone make a lease ? All the books agree in the nature of the estate and seizin created by such a deed. Each of the grantees holds the land in fee—■ not in moieties, but in severalty, (per tout et non per my, as it is technically expressed,) with the right of survivorship; and so familiar was this feature, that I have met with but two of our states, among many whose courts have had it under consideration, which have refused to recognize it in the construction of their conveyances. These are Connecticut and Ohio, both of whose superior courts, however, admit that it is the well settled rule of the common law. Whittlesey v. Fuller, 11 Conn. R. 337. Sergeant v. Steinberger, 3 Hamm. R. 305. Various legal consequences' ari
But if otherwise, I am not prepared to admit that one joint tenant is unable to demise his share, and so recover it in ejectment, without the concurrence of his co-tenant. A separate lease by him is considered a severance, at least pro tanto. Doe, ex dem. Marsack v. Reed, 12 East, 57, 61. Doe ex dem. Lulham v. Fenn, 3 Campb. 190. Nor does this conflict with the rule that joint tenants must
It is said that the wife should be a party in order to bind her: and that her husband being the sole party, she is not
I have said that in the case at bar the husband - alone could not alien. The meaning is he cannot alien the entire estate. His case was put with that qualification in Rogers v. Griden; but Barber v. Harris, we have seen, holds that he may mortgage all the interest which he has in right of his wife ; being seized jure uxoris, it follows that he may make a lease in his own name alone, or may join with his wife, at his option. So in effect, it was held by Wilson v. Rich, 1 Brownl. 134, 5. That was in the 44 Eliz. before the fictitious lease had been allowed. The husband and wife made a lease, but actual possession under it being necessary according to the practice of that day, instead of delivering it in person, the wife made a power of attorney for that purpose. The husband then sued, laying the demise jointly, from himself and wife. Popham, Fenner and Yelverton, justices, held that, as the wife could not make an attorney, there was no delivery of possession as to her, and therefore the proof varied from the declaration. They added, the lease is only the lease of the husband; but they did not at all question that had the declaration contained a count on his sole demise, he might have recovered.
• On the whole, I do not think there is any foundation for a new trial to 'be found in any of the points taken. One of them objects that the verdict is against the weight of evidence, and it is said the preponderance is decidedly in favor of the accuracy of the Lawrence survey; and another, that Murray McConnell .and Amy Carpenter, witnesses for the defendant, are to receive -credit in preference to Hartline, a witness for the plaintiff, who, if he contradicts them, was
New trial denied.