46 Barb. 439 | N.Y. Sup. Ct. | 1866
So many cases have arisen in regard to the lands held under the Van Rensselaer title, that most of the questions respecting them ought to be deemed at rest, at least in this court. It may not be unprofitable to make a brief digest of the leading decisions in regard to the principal questions involved. They may be embraced under the following heads : 1. The nature of the relations between the parties to the conveyances out of which the questions arise, and the nature of the rent or payment which is charged, reserved or secured by such conveyances. 2. How far, and to what extent, and under what circumstances, these relations continue between those who succeed to the rights and title of the original parties. 3. The remedies proper to be pursued in case of the non-payment of the rent, and for and against whom these remedies may be enforced.
I. The conveyances in question usually contained a grant or lease of the lands; in fee simple, to the grantee or lessee— a covenant to pay a perpetual annual rent—a covenant or condition authorizing a distress on the part of the grantor or lessor, and in default of sufficient distress, a right of re-entry. These covenants and conditions were, by the terms of the instrument, usually made obligatory, as to their burthens, upon the heirs and assigns of the original covenantors, and the benefits thereof secured to the representatives, heirs and assigns of the original covenantees. For examples of. these instruments, see the following cases: Van Rensselaer v. Jones, (5 Denio, 449 ;) Depeyster v. Michael, (6 N. Y. Rep. 467;) Van Rensselaer v. Snyder, (13 id. 299;) Same v. Hays, (19 id. 68;) Same v. Ball, (Id. 100 ;) Same v. Smith, (27 Barb. 104;) Main v. Green, (32 id. 448 ;) Main v. Davis, (Id. 461.)
The question has been much debated, more especially since the decision of the case of Depeyster v. Michael, (6 N. Y. Rep. 467,) whether these conveyances were more properly termed leases in fee, or deeds of assignment; whether they created
The contents of the instruments are not sufficiently recited, in most instances, to determine whether in the granting clause the words more appropriate to a grant, or to a demise, are usually employed. I have referred to this clause in some of the earlier Van Rensselaer leases, and in them the words are “ hath granted, bargained, sold, released and confirmed,” and not the words more usual in leases, “ hath demised, leased, and to farm let.” And yet in some of them it is highly probable that the latter or some equivalent words were employed. Thus intern Van Rensselaer v. Snyder), (6 N. Y. Rep. 300,) it yis said that the plaintiff read in evidence a lease between Van Rensselaer and Decker, whereby the former demised and ] granted to the latter, forever, a certain lot, at an annual rent. Be'jjeyster v. Michael), (13 N. Y. Rep. 468, 469,) it is said the plaintiff introduced a lease from Van Rensselaer to Snyder, by which the former leased to the latter and to his heirs, &c. forever, a certain lot. Other provisions of the instrument are quoted in haec verba, describing the one party as the lessor, and the other as the lessee. The argument of the counsel for the plaintiff refers to the paper as a lease, (p. 470,) and in the opinion of the court it is spoken of as a lease in fee, and the parties as lessor and lessee, (p. 489.) In the statement of the four cases contained under the title of Van Rensselaer v. Smith, (27 Barb. 104,) they are all spoken of as leases or demises, and the parties as lessor and lessee. (Pages 104, 105, 106, 107, 110.)
This clause, however, in the instrument, is not alone decisive, and must be construed in connection with the other
Nevertheless, it is also firmly held that the sum of money which, by the terms of the conveyance, is to be annually or oftener paid by the grantee or covenantor, to the grantor or covenantee, is styled, and properly styled, rent, (Van Rensselaer v. Ball, 19 N. Y. Rep. 107;) and is properly denominated a rent charge, (6 N. Y. Rep. 497, 504; 19 id. 76, 77;) and is in the nature of an annual return or render for the land; or at all events, that the payments are payments of 7'ent, and not of purchase money, (Van Rensselaer v. Read, 26 N. Y. Rep. 576 ;) and is a laivful condition imposed upon a conveyance in fee, (6 N. Y. Rep. 497, 504; 19 id. 76, 77;)
And while in the case of Van Rensselaer v. Read, (26 N. Y. Rep. 563,) it is said, “ such conveyances operate as assignments, and not as leases, whatever name may be given to them, and leave neither any reversion nor possibility of reverter in the grantor,” it is also said in the same case, at page 576, “If the relation of landlord or tenant between the parties was, as has been claimed, necessary to render covenants assignable, it would not be difficult to show that relation exists in this case.” And the learned judge argues in support of this last position, 1. That the rent charge, including the right of entry, though not a reversion, creates an interest in the land. 2. That the annual payments are payments of rent, and not payments of purchase money. 3. That the parties to these conveyances are styled, in many of the reported cases, landlords and tenants. 4. That the decisions in some of the cases, (Van Rensselaer v. Snyder, 13 N. Y, Rep. 299, and Van Rensselaer v. Ball, 19 id. 100,) can be sustained on no other ground, as they depended entirely upon a statute applicable only to parties holding that relation. (2 R. S. 850, § 30.) See also, the case of Van Rensselaer v. Lansing, (MS. Sup. Court, 3d Dist. March, 1865;) where this question, in several of its aspects, is largely discussed. Also Tyler v. Sherman, and other cases, (Supreme Court, 3d List. March, 1863 ;) also, Overbagh v. Stanton, (Sup. Court, 3d Dist. Sept. 1865.)
Moreover, it is held in the case of Van Rensselaer v. Smith, (27 Barb. 104,) and the other cases decided with it, that under our laws the relation of landlord and tenant is made to exist as between the grantor and grantee in a conveyance in fee of manor lands, reserving rents. Judge Gould, at pages 155 to 159, argues at length, and strongly in favor of this position, 1. From the statute of 1788, as amended in 1805,
These decisions, carefully made after mature deliberation, in our own court and in our own district—never so far as I know reversed, or even reviewed in an appellate tribunal— ought, perhaps, to terminate the discussion of these questions, in this court, until some principle at war with them is adjudicated in some superior tribunal.
II. The parties who are entitled to the benefits, and bound to the performance of this contract, are not simply those who executed the original conveyance, but all who have succeeded to their position, or who hold under them—whether as heirs, devisees or assigns of the original parties. It is held that the agreement was intended to be perpetual; (Van Rensselaer v. Hays, 19 N. Y. Rep. 70, 71;) and to bind subsequent parties; and that such parties are expressly named and therefore bound ; (Van Rensselaer v. Read, 26 N. Y. Rep. 565;) and that the covenants run with the land, being connected with the estate, and growing out of its enjoyment. (Main v. Feathers, 21 Barb. 646. Van Rensselaer v. Bonesteel, 24 id. 365. Same v. Smith, 27 id. 142 to 154, 171 to 176. Same v. Read, 26 N. Y. Rep. 565.) It is held that the parties succeeding to the title of the original grantor—the covenantee in regard to the rent—are entitled to enforce the covenant. (Van Rensselaer v. Read, 26 N. Y. Rep. 566, 567. Demarest v. Willard, 8 Cowen, 206. (1.) By virtue of the act of 1788 as
III. The remedies which the grantor or lessor may pursue in the event of the non-payment of the rent, are:
1. Covenant, to recover the rent itself, either,
(1.) As between the original parties, or
(2.) As between parties who have succeeded to their rights.
2. Fjectment to recover the premises, for the non-payment of the rent.
1. The first remedy"—that of a direct action to recover the rent itself by the party who is entitled to it, against the party from whom it is due—needs no remark, inasmuch as it is obviously a proper and natural remedy, and flows directly from the relation of the parties, as soon as that is legally ascertained. And it subsists as a matter of course by and against the assignees of the respective parties, when it is
2. The second remedy—that of ejectment-1— requires more consideration, and has been the subject of considerable adjudication. It is but a mode of enforcing the right of reentry; and the authority to pursue it depends in part upon the provisions .of the contract, and in part upon the provisions of the common and statute law. It is founded upon that provision of the contract which gives the party the right to re-enter the premises in the event of the non-payment of the rent, and usually, also, in the event of the want of a sufficient distress on the premises to satisfy the rent; and where a right of re-entry for non-payment of rent is not reserved, the landlord can not maintain ejectment for non-payment of rent. (DeLancey v. Ganong, 9 N. Y. Rep. 9. S. C. 12 Barb. 120.)
This condition is held to be a lawful condition, and the breach of it gives a right to re7enter; and a reversion is not necessary to ujahold it. (19 N. Y. Rep. 102.) It has been supposed that at common law only the grantor and his heirs could avail themselves of this right to re-enter. (Nicoll v. N. Y. and Erie R. R. Co., 12 N. Y. Rep. 121. 4 Kent’s Com. 127. 19 N. Y. Rep. 103.) • Büt the right is conferred upon the assignees, by the act of 1805, and the act is constitutional. (Van Rensselaer v. Ball, 19 N. Y. Rep. 104 to 106.) The right is also held to be conferred or recognized by the act abolishing distress for rent, (Laws of 1846, ch. 274,) and it is held that this latter act confers the same rights upon the assignee as were conferred by the act of 1805, before its partial repeal by the act of 1860. ( Van Rensselaer v. Slingerland, 26 N. Y. Rep. 586.) And it is hold that the question is the same as if the suit were by the original grantee. (Ibid)
Where ejectment was brought for the non-payment of rent, and the proceedings were according to the common law, it was held that a strict demand of the rent, made with all the
It is further held that the service of the notice under the ■3d section of the act of 1846, renders unnecessary the proof of the want of any sufficient distress. (Van Rensselaer v. Slingerland, 26 N. Y. Rep. 586.)
It has been contended that the condition of re-entry only operates by putting an end to the estate, and can not give an estate to á stranger to the title. But it has been held that this is no answer, even at common law, (26 N. Y. Rep. 587;) and that in Jemmot v. Cooley, (1 Saund. 112,) it was held that the grantee of a rent charge in fee without interest in the' land beyond that given him by the grant, could maintain ejectment after default in the payment of the rent. (Van Rensselaer v. Slingerland, 26 N. Y. Rep. 587.)
To entitle the party to bring ejectment, no previous actual
This closes the references to the course of adjudication had in regard to the manor leases; and as these decisions are obligatory upon us, it would seem they ought to foreclose further debate upon questions precisely similar..
The questions made in the present case, by the defendant, are the following:
1. That the obligations sought to be enforced depend for their validity upon the right to bind assignees or derivative parties by the contracts of their predecessors or the original contracting parties; and that, as applicable to estates in fee, they are rents or services which could not be attached' to them under the “act concerning tenures,” passed in 1787. (1 R. L. 70, §§ 1, 6.)
2. That if otherwise obligatory, they ceásed to exist upon the adoption of the amendment to the federal constitution, abolishing slavery and involuntary servitude within the United States.
3. That the lapse of time, and the non-payment of rent during such lapse of time, furnish conclusive evidence of the extinguishment or discharge of the contract.
4. That the actions are barred by the statute of limitations.
These questions, except the first, are perhaps open to discussion, except so far as the third and fourth have been
The first question, I think, is settled by the cases to which reference has been heretofore made. In them the effect of the provisions of the act concerning tenures has been largely discussed, and the rents and services reserved and stipulated by the instruments in question held not to he inconsistent with the abolition of feudal tenures, or with the independent and allodial tenure under the 'State itself, which the statute in question is supposed to have effected. (See Van Rensselaer v. Smith, 27 Barb. 104; Same v. Hays, 19 N. Y. Rep. 68; Same v. Ball, Id. 100; Same v. Read, 26 id. 558 ; Same v. Slingerland, Id. 580.)
The obligation of the contract is further disputed upon the ground that it is essentially a personal servitude, and abolished by the late amendment to the federal constitution, whereby it is provided that “ neither slavery nor involuntary servitude, except as a punishment for crimes, whereof the party shall have been duly convicted, shall exist within the United States or any place subject to their jurisdiction.”
1. It may be well to consider the consequences of such a doctrine; for though, if the rule be plain, such consequences should not deter us from enforcing it, yet they may very properly he considered in determining what- was the intent and object of the provision.
If the doctrine contended for he well founded, it sweeps away all contracts, so far as resjiects their obligation upon all persons except the original parties thereto: So far as I can discover, no parties can ever be bound by the contracts of others, although they may enjoy the property, in regard to which the contract is made. All covenants running with the land; all obligations of heirs and devisees, so far as they rest upon the contract of the ancestor; indeed, all contracts of whatever nature, by which certain burdens are attempted to be imposed upon persons who act in a representative capacity, by reason of certain benefits which they enjoy from the
I apprehend consequences so sweeping and destructive could not have been intended or anticipated by the authors, or approvers of this amendment to the constitution.
2. Nor is such, in my opinion, its fair scope and interpretation. It was designed for one specific object, and no other, to wit, the abolition of personal slavery within the United States, the system of personal and involuntary servitude, by which one person owned as property and could absolutely ■ control the person and services of another. This was the mischief to be remedied—the evil to be abolished—the end to be- gained. It was to give personal liberty to the enslaved, emancipation to those who were held in bondage. No. other object was ever suggested, in the multitudinous discussions to which the project gave rise. No other would probably have commanded the approval of the country. To give it now a more sweeping effect, so as not only to liberate every slave, but to destroy every contract which imposed upon one person the obligations contracted by another, upon the ground that it was in effect a personal servitude, would be doing violence, I think, to the intent of the law makers and the general understanding of the people. The term involuntary servitude, in my opinion, is substantially synonymous with slavery, though it riiay perhaps be regarded as slightly more comprehensive, and as embracing every thing under the name of servitude, though not denominated slavery, which gives to one person the control and ownership of the involuntary and compulsory services of another against his will and consent.
3. The amendment iti question was never intended to, and in my opinion does not, embrace contract service of any
It is further urged that the lapse of time, and the nonpayment of rent, furnish conclusive evidence that the obligation, if it ever existed, was released and discharged.
In Livingston v. Livingston, (4 John. Ch. 294,) cited by the defendant^ which was a bill for discovery and relief—to discover whether the instrument charging the rent was not in the possession of the defendant, and whether the retit was not charged upon the land in possession of the defendant— and for an account of the rent, &c. the chancellor dismissed the bill on these grounds, that no rent had been paid or demanded for forty-four years, (the bill charged that none had been paid since the date of the lease;) that the case was distinguished by the fact that no rent had ever been paid, or demanded, from the beginning; that the presumption was very strong of an extinguishment of the rent by some grant or conveyance; that the original grantor lived seventeen years
In Collet v. Jagues, (1 Cases in Chancery, 120,) payment of the rent was decreed,, though the bill alleged that the deeds charging the rent were lost; it appearing that the rent had been paid until the last twelve years.
In Boteler v. Massey, (Rep. Temp. Finch, 241,) the court supported a claim for a dormant rent, on a bill founded on the loss of the counterpart of the deed, where it appeared that the rent had been paid until within twenty-three years.
In' Livingston v. Livingston, (4 John. Ch. 287,) which was also a bill filed to obtain an account of rents and to discover the title by which the defendants held the lands, the defendants objected, among other things, “that the rent is to be presumed paid and satisfied, by the lapse of time.” But the chancellor overruled the objection, and said, “The la.st objection is of no force; How can the lapse of time be brought in as presumptive evidence of payment when the defendant in his answer admits the original covenant to pay, and does not pretend to any payment ? Time operates in equity only by way of evidence, and here is only, as to one deed, twenty years and a few months, between the date of the covenant and the filing of the bill, and it is short of twenty years in the other cases.” And the chancellor directed a reference to take an account of the rents.
In Jackson v. Davis, (5 Cowen, 130,) the Court held that satisfaction of the rent might possibly be presumed after a forbearance of twenty years unexplained; that where a mortgagee has never entered into possession, and no demand
In Cole v. Patterson, (25 Wend, 456, 458,) it was held that the non-payment of rent for a period of from twenty to twenty-four years does not necessarily raise the presumption of payment, and is not sufficient to justify the presumption of payment where circumstances exist tending to excuse the delay in demanding the rent; nor, under such circumstances, will a release or conveyance extinguishing the rent be presumed.
In Failing v. Schenck, (3 Hill, 345, 346,) “ there was no evidence that any rent had been paid on the thirty year lease,” and more than thirty years had elapsed before the bringing of the suit. And Judge Oowen said, (p. 346,) “I am inclined to think that, under the circumstances, had the question been material, the case might have been a proper one for saying that the rent due on the lease executed by Nicholas Failing must be presumed to have been extinguished—had an action been brought for that; at least the question of extinguishment might have been proper for the jury.”
In the present case, the cáse contains the statement (fol. 69,) “ that there was in arrear and unpaid all the rent provided for, from the date of the contract, (1794 to 1864,) there being no evidence of any payments.”
If this was merely intended to state that there was no proof of any payment of rent, it was perhaps unobjectionable; but if it was intended to state that there was proof that it was not paid, it seems to be unwarranted by the case, which purports to contain all the evidence given on the trial, which not only does not contain the evidence of any such fact, but shows the existence of an instrument providing for a perpetual annual rent, the title to all arrears of which that may have accrued after the death of Stephen Van Eensselaer came to the plaintiff on or about the 28th day of March, 1861.. Moreover, among the facts found by the referee in his report incorporated in the judgment record, it is stated that at the time of the demand the annual rent reserved' which had accrued during several years, was in arrear and unpaid. We are also to consider that the course of proof which the plaintiff was called upon to pursue did not naturally direct the mind to the necessity of any attention to, or proof of, payment of rent, or non-payment of rent, except for the particular 'year when his demand was made, and on which his action was based. Taking these circumstances into consideration, to wit, the supposed absence of
It is further said the action was barred by the statute of limitations. The argument is founded upon that section of the Code which requires the plaintiff, his ancestor, predecessor or grantor to have been seised or possessed of the premises in question within twenty years before the commencement of the action, as a condition precedent to the maintenance of an action for the recovery of real property, or for the recovery of the possession thereof. (Code, §§ 78, 79.)
This question was decided adversely to the defendant in the unreported case of Spalding v. Dibble, (MS. Sup. Oourt, ,3d dist. decided in December, 1865.) It was there held, that if the section of the Code above referred to embraced a case like the present, it refers to such a seisin or possession as will carry with it the title to the premises, or a right of entry which will authorize an action of ejectment; that of such a seisin or possession, title or interest, the plaintiff has always been possessed, culminating in a right of entry or immediate possession whenever a breach of the condition on which the premises were held took place; that if the seisin is not constant and uninterrupted during the holding of the defendant and his predecessors ijnder the title of the plaintiff and his predecessors, it attaches upon failure to perform the condition. Section 81 of the Code, providing that the person
It was further held or suggested in the case of Spalding v. Dibble, .that section 86 was applicable, which made the possession of the tenant the possession of the landlord whenever the relation of landlord and tenant shall exist; and it was at least intimated that the principle of that section was apjfiicable to the present case. The references to former adjudications by which we are bound tend, I think, to show that such relation, in effect, exists between parties situated like those in the present case. (Van Rensselaer v. Read, 26 N. Y. Rep. 576. Same v. Ball, 19 id. 100. Same v. Snyder, 13 id. 599. Same v. Smith, 27 Barb. 104.)
It is said, indeed, that the referee has found in this case;, as a question of fact, “that the relations of landlord and tenant were not created by the contract, and do not exist between the parties to this action.” ' The question is one of lazo, and not one of fact, on the facts proved and undisputed, and can not be made to assume a different aspect by being included in the findings of fact.
It is not amiss to look at the consequences of the doctrine maintained by the defendants. The enforcement of forfeitures on estates, upon condition subsequent is at an end; for if the breach of the condition is held to vest no title or seisin in the covenantee or his assigns, estates upon condition become in effect absolute and unconditional, and the breach of the condition can never be enforced in an action of ejectment. This is at war with all our well settled notions upon this subject, as well as with the decisions before noted.
. It further appears from the findings of fact, “ that the plaintiff had, when the action was commenced, no estate or
This disposes of all the questions raised in the case, and the result is that the judgment must be affirmed.
Judgment affirmed.
MiUer-, Ingalls and Sogeboom, Justices.]
