22 Wend. 121 | N.Y. Sup. Ct. | 1839
By. the Court,
It is clear, that as between the now defendant and Ferguson, the lessor, the deed of February 28th, 1835, related back to the 4th of October, 1833; and from that time divested all title of Ferguson to that part of the demised premises included in it. The plaintiff claiming under him must, therefore, abide the legal consequences arising from Ferguson’s failure of title. The plaintiff stands in Ferguson’s place, being his assignee; and both must be taken to have been pro tanto totally destitute of title, and of all right to demise and to hold as landlord, from the 4th of October, 1833. Here has been no eviction of the defendant, nor any act equivalent to an eviction by the plaintiff, from the whole or any part of the demised premises. The judge was right, therefore, in saying that no defence arose upon that ground. But the plaintiff lost his title subsequent to the giving of the lease, and the lessee acquired it as to part of the demised premises. Had he a right to acquire the title of his landlord, and set him at defiance ? So long as he is not expelled, he has, in general, no right to
But the title to only apart of the demised premises passed to the defendant. I do not say this on the ground that Ferguson’s wife who joined him as lessor must be taken to have been seized of seme portion, for her seizin must be deemed that of her husband, at least during the life of both; and during that time, her right was subject to be sold under execution for his debts. But the deed to the defendant covered only part of the demised, premises. His case was not, therefore, in any view, one of total defence ; and the judge was right in saying that the evidence could not be received as a bar to the action.
But I think the judge erréd in shutting out the evidence as totally impertinent. .It should have been received in mitigation of damages. The plaintiff, or rather his assignor, who, as I remarked, are in this case legally identical, having after the date of the demise, parted in effect with the reversion of a part of the demised premises, rent should have been recovered for the residue only. The rent is incident to the reversion, and follows the grant of it without
The defendant’s counsel did not characterize his evidence, on the offer he made at the trial, by saying whether he intended it as a bar, or in mitigation. Had he presented it in the former character merely, the ruling at the circuit would have been proper." But the evidence seems to have been offered generally for what it was worth; and should not have been totally excluded. The decision of the judge went to that extent, probably on the ground that, during all the time when the rent claimed was running, the legal title
On the whole, we think there must be a new trial. And if the rights of the parties be not changed, the question must be referred to the jury to make a just apportionment of rent upon that part of the demised premises which lie without the sheriff's deed. Gilb. on Rents, 189, Dubl. ed. 1792 ; and see the case of Hodgskins v. Robson, 1 Ventr. 276, which relates both to the principle and practice of apportionment. See also Gillespie v. Thomas, 15 Wendell, 464, 469, and the books cited by Mr. Justice Nelson at the latter page.
New trial granted; costs to abide the event.