89 N.J.L. 120 | N.J. | 1916
The opinion of the court was delivered by
This is a suit by the remainderman against the executor of a life tenant for permissive waste suffered by the life tenant during tifie running of the life estate. The motion is tantamount to a demurrer under the former practice.
The two grounds argued are—first, that the complaint is not definite, and second, that the action has abated by reason of the death of the life tenant and does not survive againsi; the executor. Wo see nothing in the first ground. The indefiniteness objected to is simply that the complaint fails to state whether the action is brought as at common law, or upon the statute of waste. The courts notice public statutes e:r-officio without their being pleaded. 1 Chit. Pl. 246. If therefore the complaint states a cause of action either at common law or by statute, it is not vulnerable to a demurrer.
This brings ns to the second ground, which brings up the real point. It is urged, and correctly, that the statute of waste (Comp. Stat., p. 5789) gives no right of relief against the personal representative of the deceased committer of the waste. There is a good deal of old learning upon the question whether an action will lie at all under the statute for permissive waste, hut in this state this has been settled by the decision of Chief Justice Pepue in the case of Moore v. Townsend, 33 N. J. L. 402, where he goes into the history of the decisions and holds that even under the statute of Marlbridge there was a remedy for permissive as well as for active waste, and then proceeds to call attention to the wording of our statute, which does not exactly copy the statute of Marlbridge, and if anything enlarges it. That statute is section 2 of the act concerning waste and dates from the time of Paterson (see Pat. Rev., p. 179). The words used are “make or suffer any waste.”' This statute has been reenacted from time to time in our revisions and now appears in the Comp. Stat., p. 5790. It is held in the opinion in the Townsend ease