31 Barb. 286 | N.Y. Sup. Ct. | 1859
There seem to be two difficulties in the way of the plaintiffs’ recovering, in this case. First. The defendant went into possession under a contract to purchase, and not as tenant. The contract not having been performed by the vendors, the defendant incurred no liability to them by leaving the premises. Had the vendors been the owners of the land, it is clear that they could not have sustained an action, either upon the contract or for use and occupation. They could not have sustained the former, for the reason that they had not performed on their own part; and they could not have sustained the latter, whether they had performed or not, for the reason that the conventional relation of landlord and tenant did not exist. That relation must exist, to authorize the action for use and occupation. (5 John. 46. 1 Denio, 38. 25 Barb. 243. 13 John. 489.) And if the vendors could not sustain the action for use and occupation, it will scarcely be claimed that the plaintiffs can sustain it. There was clearly no relation of landlord and tenant between them and the defendant.
Secondly. If the defendant was tenant to any one, he was tenant to Mrs. Hall, and not to the plaintiffs. By the death of her first husband, who died seised of the farm in question, the mother became vested with the powers of a guardian in socage, and as such was authorized and required to take the rents and profits of the land for the benefit of the infant heirs. (1 R. S. 718, § 5. 7 John. 157.) The legal intendment would be, that from the time of her husband’s death until the • defendant went into possession, she occupied as guardian in socage. (7 John. 157.) She was privy to the contract with the defendant, and assented to it. If, therefore, the relation of landlord and tenant existed at all, it must have been between Mrs. Hall and the defendant; and if any action to recover rent, or for use and occupation, could be sustained at all, it must be by her. The same would also be true in regard to trespass, or any other action for injury to the possession.
The case of Beecher v. Crouse (19 Wend. 306) is in point. In that case the father of the plaintiffs died intestate, in 1820, leaving a farm which descended to the plaintiffs as his heirs at law. His widow, the mother, of the plaintiffs, married again in 1822, and, with her husband, occupied the farm until 1830, the plaintiffs in the suit living with them. The crops raised upon the farm in 1830 were taken by the defendants under an execution against the husband and stepfather, and for that the action was brought by the heirs. The court held that the mother and stepfather were presumed to be lawfully in possession of the products of the farm—the mother as guardian in socage and the stepfather jure uxoris, and that the plaintiffs, the heirs, could not sustain the action. (See also 2 Kent's Com. 222; 7 Wend. 45; 15 id. 631; 17 id. 77.) These objections dispose of the case, and it is not necessary to examine the question of fact presented.
Judgment reversed, and a new trial ordered, and reference vacated.
Pratt, Bacon, W. F. Allen, and Mullin, Justices.]
