17 Barb. 149 | N.Y. Sup. Ct. | 1853
The counsel for the defendant insists that the guardian of Porter, the infant, was the proper party in the action to recover the rents and profits of the real estate of the infant. At common law, upon the death of' the tenant in socage, his heir being within the age of 14, the next of kin to whom the inheritance could not descend, became the guardian of the body and the lands of the heir, until he arrived at the age of 14. He is called guardian in socage and also guar-: dian by the common law. (Bac. Abr. title Guardian, A. 1 Bl. Com. 361. 2 Kent’s Com. 221, 2.) This guardianship could only arise when the infant had lands by descent. (Macpherson on Infants, 19.) In this state, all lands granted by the people since July 4,1776, are declared to be allodial and not feudal. (1 R. S. 70. Combs v. Jackson, 2 Wend. 156.) Some of the incidents of tenures in socage have, however, been modified and preserved. If lands become vested in an infant, the revised statutes declare to whom the guardianship of such infant, with the rights, powers and duties of a guardian in socage, shall belong. (1 R. S. 718, § 5.) Here it is seen that such guardian is to possess all the rights, powers and duties of a guardian in socage. The rights of such a guardian are superseded when a testamentary or other guardian is appointed. (Id. 719, § 7.) A father may appoint by deed or last will a guardian of his infant child. Such guardian may take the custody and tuition of the minor, and the custody and management of his personal estate and the profits of his real estate, “ and may bring such actions in relation thereto as a . guardian in socage might by law.” (2 R. S. 150, §§ 1, 2, 3.) If the father has not appointed a guardian, then the surrogate may appoint, and such guardian shall have the same powers as a testamentary guardian. (2 R. S. 151, § 10.) The question may be raised whether the testamentary guardian possesses all
It seems, therefore, that all the rights, powers and duties of a guardian in socage belong to a testamentary guardian, and a guardian appointed by the surrogate has the same powers. (See 1 R. S. 718, §§ 5 and 7; 2 R. S. 150, § 3 ; 151, §10; Id. 153, § 20. 2 Kent’s Com. 228.) At common law a guardian in socage can make a valid lease in his own name until the ward attains the age of 14. He can maintain ejectment. He may enter and occupy the lands of his ward to the use of the ward, being accountable to him for the rents and profits. He may defend his possession, and may maintain trespass, in his own name. He may avow in his own name. (Macpherson on Infants, 35, 28. 1 Bl. Com. 461 and note. 2 Kent’s Com. 228. 10 East, 491. Bac. Ab. Lease, I. 9. Byrne v. Van Hoesen, 5 John. 66. Johnson v. De Walts, 7 Id. 158. 17 Wend. 75. Jackson v. Combs, 7 Cow. 36; S. C., 2 Wend. 153.) At the time this last decision was made, the father could not be guardian in socage of his child, or guardian with the rights, powers and duties of a guardian in socage. The revised statutes, above referred to, have in.this respect affected a change. (Fonda v. Van Horne, 15 Wend. 631. Holmes v. Seely, 17 Wend. 77, 8.) In the last case cited the action was ejectment. It was held that a guardian in socage may maintain ejectment for the land of his ward. In that case the plaintiff had .been in the actual possession of the premises claimed.
The infant is vested with the title of the land. The rents belong to him, and whatever the guardian does is done for his benefit. An infant has generally capacity to sue and maintain actions. We have seen that a guardian may lease the lands of his ward, and may maintain. ejectment. An infant may also at common law make a lease, reserving rent. Such lease is not void, but voidable only. (3 Burr. 1794. 2 T. R. 159. Macpherson on Infants, 470. Bac. Ab. Infancy, I. 3. 2 Kent's Com. 234 to, 239. Arch. L. and T. 3.) As a general rule the deeds and instruments under seal, executed by an infant, are not void but voidable only. (Bool v. Mix, 17 Wend. 119,131. Eagle Fire Co. v. Lent, 6 Paige, 635. 2 Kent's Com. 236.) An infant has a right to enter, and he can bring ejectment. (Macpherson on Infants, 354, and cases above.)
It cannot, I think, be doubted that Peter B. Porter, had he lived, could have enforced the payment of the rent, according to the terms specified in the lease, during the time the premises were occupied by Hays or any one entering under Hays, Porter died, having demised the premises to the plaintiffs, who were also his heirs at law. The tenant paid the rent according to the terms of the written lease. The defendant came in under the lease, and for a time paid the rent as specified in the lease, to Baldwin as agent" of the plaintiff Elizabeth, the agent of the guardian of Peter the infant, and promised to pay the rent for which this action was brought. In my opinion the action is maintainable by Peter A. Porter the infant.
It is objected that as the plaintiffs were tenants in common, they cannot maintain the action unless upon a joint demise, and that in this case there was no joint demise. I am not prepared to concede either of these positions. The plaintiffs were tenants in common, and in my opinion they properly joined in this action for use and occupation. Tenants in common are deemed to
By. the English authorities, upon the demise of joint tenants reserving an entire rent, they may join in an action to recover it, if the demise be joint; or if there be a separate reservation of rent to each, then each must bring his separate action. (Broom, on Parties to Actions, 27, § 32.) In trespass for an. injury to the possession, tenants in common must join. (Austin v. Hall, 13 John. 286. Brotherson v. Hodges, 6 Id. 108. Bradish v. Schenck, 8 Id. 151.) In Decker v. Livingston, (15 John. 482,) the court say, “ If two tenants make a lease of their tenement for a term of years, reserving rent, if the rent be behind; they shall have an action of debt against the lessee, and not divers actions, for the action is in the personalty. But in avowry for rent they ought not to be joined, for this is in. the realty;” and Co. Litt. § 316, 198 b, and § 317, is cited. (See also the remarks of Ch. J. Savage in Sherman v. Ballou, 8 Cowen, 308, 9.)
In Hill v. Gibbs, (5 Hill, 56,) the rule is laid down generally that tenants in common must sue separately when the action is in the realty, and that they must join when in the personalty, and Justice Bronson says: “ The action is not in the realty merely because it has some relation to land. Thus-, debt for rent, and covenant foi’ not repairing, upon a joint demise, are personal actions, and tenants in common must join. So, too, they must join in actions for a trespass or nuisance to the land.” He adds, “ The English cases say they may, ours that they must join.” (See also Cole v. Irvine, 6 Hill, 638.)
In England, ejectment cannot be sustained by tenants in
I am satisfied that whéri land descends; which is occupied by a tenant, the action for rent should be brought by all the tenants in common.
There is no difficulty, in this case; in holding that there was a joint demise by the plaintiffs. There is no evidence of any express contract between them and the defendant, but a contract may be implied from the occupation, and payment of rent. The contract of letting or demising of the infant, as we have seen, is not void. But in this case there is more.- The infant had a guardian who had fall power to lease the land of his ward,- and that guardian appointed Baldwin, who was the agent of Elizabeth, to take charge of Peter’s real estate in the city, and to rent the same and to collect the rents.- The authority to
Taggart, Bowen, Marvin and Mullett, Justices.]
Thé judgment should be affirmed: