3 Barb. 589 | N.Y. Sup. Ct. | 1848
By the Court,
The parties in this suit claim under the same patentee, and the question of estoppel is raised as to both. The principle of estoppel, as between lessor and lessee, is well established. It is of the essence of the contract that the paramount ownership of the lessor shall be acknowledged during the continuance of the lease, and that possession shall be surrendered at its expiration. The lessee cannot set up the title of another, without violating his contract and breaking the faith he pledged on obtaining the possession, to surrender it again. (Blight v. Rochester, 7 Wheat. 535. Cond. Rep, 5, 335.)
The relation of landlord and tenant in no sense exists between the vendor and vendee. If the vendor has actually made a conveyance, his title is extinguished and the purchaser holds adversely to the vendor, and may controvert his title. It is also well settled that he may fortify that title by the purchase of any other which may protect him in the enjoyment of the premises. (Watkins v. Holman, 16 Peters, 25, 53, 54. Osterhout v. Shoemaker, 3 Hill, 513, 518.) Applying the doctrine to this case, if Kenada was in possession under a conveyance from Radcliff, he had a perfect right to purchase the interest of Eleanor Horton, and Gardner being in possession under her had the same right to purchase the title of Radcliff. It appears from the evidence in the case that Kenada never had a conveyance from Radcliff. He went in as assignee of Smith, who had a contract with Radcliff for the purchase. The terms and conditions of that agreement were not shown, nor did it appear {whatever it might haye been) that any part of the consideration of the purchase was ever paid. It cannot be said that a party acquiring possession under an agreement to purchase
Kenada maintained faithfully the title of Radcliff until he gave the cognovit in 1824. The intimation of the judge that that was equivalent to an attornment is immaterial. Kenada could not legally attorn to a stranger while he continued in possession under the agreement to purchase. It does not follow that it was inoperative as to himself. By it he abandoned his possession, and admitted upon the record that the plaintiff had the paramount right to the possession for the term of 21 years from the 28th of December, 1822. It is quite clear that Kenada never had any conveyance from Radcliff, and that he satisfied himself as early as 1824, that Eleanor Horton’s was the better title. He took a deed from her with warranty in 1830. He was in possession, and it was operative to convey whatever rights she had, seven years before she quit-claimed all her interest in the premises to Gardner and Mulligan. The conveyance to Kenada was procured undoubtedly (for there is no intimation that she had acquired rights to the estate intermediate the conveyances,) under the erroneous impression or belief that the conveyance to Gardner and Mulligan at the time the lands were held by Kenada adversely to her, was entirely inoperative and void, and that the title remained in her. Though the rule may be frequently found as broad as that in
It is unnecessary to consider the deposition of Cook, and if, as is already shown, Mrs. Horton had parted with her title before her name was used as a lessor of the plaintiff in the suit against Kenada, it is clear, upon the most common principle of morality, that she had no authority to suspend the proceedings, or release the judgment. That release is of no validity except to show, as it does by recital, that the giving of the re-licta and cognovit was the authorized act of Kenada himself, and upon deliberation.
Judgment for defendant.