11 Johns. 163 | N.Y. Sup. Ct. | 1814
1. The first question is, whether the defendant Is to hold according to the courses and distances in the lease of the 8th of November, 1763, or according to the map made by Schuyler, cotemporaneously with the lease, Schuyler also having made the survey on which the lease was founded?
It seems to be admitted that there is a mistake in the lease; a.nd it is very clear that a court of equity, after so long an acquiescence, would rectify that mistake. But it is not necessary to send the party to that court. In the case of Jackson v. Duffendorf and Zoller, (3 Johns. Rep. 270.) we held that a possession of 38 years was not to be disturbed, because, from a recent survey, it did not correspond with partition deeds executed 60 years before. We considered the parties, and those who claimed under them, concluded by so long an acquiescence, and that every legal presumption, and every consideration of policy, required that this evidence of right should be taken to be conclusive.
In this case, the lands have been held 51 years, according to the survey. Twelve or fifteen years after giving the lease
It would appear, however, that there is some land, how much is not stated, held by the defendant, without the survey; the same principle applies to that excess.
2. Has the plaintiff a right to maintain an ejectment for the rents due and unpaid under the lease of November, 1763?
The lease does not provide for a re-entry in case the rents remain due; but after the habendum, there follows a condition that the lessor, his heirs and assigns, shall pay a yearly rent of one tenth part of the produce of the lands demised. It may well be doubted whether the lessor, or his representatives, have any other remedy to be reinvested with the possession than that afforded by the common law, a demand of the rent on the land and at the day it became due.
Judgment for the defendant.
Bac. Ab. Rent, (K. 4.)