| N.Y. Sup. Ct. | May 2, 1848
The plaintiff, as devisee of Ms father, the late Stephen Van Rensselaer, who died in 1839, brought an action of covenant against the defendant, as assignee of the lessees of the said Stephen Van Rensselaer, to recover arrearages of rent which accrued since the death of the said Stephen. The leases, three in number, purported to be executed by the late Stephen Van Rensselaer, of the first part, and one of them by Benjamin Jones, Silas Jones, and Norman Jones of the second part; another by Abel Jones of the second part; and the third by Anna West of the second part. They all bore date in 1793, and were witnessed by two subscribing witnesses, Robert Dunbar, jr. and Thomas L. Witbeck. They conveyed certain premises therein mentioned, situate in the county of Rensselaer, in perpetuity, to the respective lessees, “ yielding and paying therefor, yearly and every _year during the continuance of the grant, unto the said Stephen Van Rensselaer, his heirs and assigns, the yearly rent of [so many] bushels of good clean merchantable winter wheat, to be delivered at the now mansion house of the said Stephen Van Rensselaer, in the town of Watervliet, unless specially directed by the said Stephen Van Rensselaer, his heirs, executors, ad
The breach in the several counts is for the non-payment of the rent which fell due in wheat after the death of the said Stephen Van Rensselaer, and after the estate of the lessee became vested in the said defendant by assignment. The plea is first, non est factum as to the said original lessees, in all the said leases; and second, denying that all the estate of the lessees vested in the defendant by assignment; and to the counts charging that a proportional part of the estate, specifying it, vested in the defendant by assignment, the pleas in like manner deny it; also a plea of set off; on all which issues were taken.
The cause was heard before a sole referee on the 7th of June, 1844, who reported in favor of the plaintiff. The questions decided by the referee, and which are complained of on this motion, will be noticed as they occurred. 1st. It was insisted, in the first place, that the execution of the original leases, by the lessees, was not sufficiently proved. Mr. Pruyn, the plaintiff’s witness, testified that “ he was acquainted with Witbeck and Dunbar, the two subscribing witnesses to the leases, and that they are both dead; that he was well acquainted with Dunbar’s hand-writing, having often seen him write; that he had never seen Witbeck write, but had seen what was said to be his hand-writing, very often; that Witbeck was formerly
I. Assuming that the plaintiff was entitled to recover, it was right for the referee to apportion the rent according to the quantity of land held by the defendant. There was no proof, or offer to prove, that the part occupied by the defendant was of less value than the residue. Prima facie it was all of equal value. The defendant might have so pleaded as to require the apportionment to be made according to value. But he did not do so. That rent is apportionable in covenant against the assignee of the lessee, and that the question may be presented by the defendant’s pleadings, will be seen in Stevenson v. Lambard, (2 East, 575,) and Lansing v. Van Alstyne, (2 Wend. 561.) The assignee of the lessee is liable only upon the privity of estate; and is therefore bound to pay rent for such part of the premises only as are in his possession. (See 3 Denio, 135.)
II. The question, therefore, arises whether the plaintiff was
In ejectment, at common law, the plaintiff might always recover a less number of acres, or a less aliquot portion than was stated in his declaration. In the well considered case of Denn v. Purvis, (1 Burr. 326,) the plaintiff having declared for a moiety of certain premises, was held entitled to recover one-third part of said premises. Lord Mansfield remarks, that if you demand forty acres you may recover twenty, if your proof justifies it. And so, he observes, it is in an assize; part may be recovered on a demand for the whole. And no possible objection can be made to this. For if more is laid, there is no reason why he should not recover less. The same rule prevails with us, except with regard to undivided shares, with respect to which this court held in a recent case that the ancient practice is modified by statute. A plaintiff, says Nelson, Ch. J. in Holmes v. Seeley, (17 Wend. 79,) “under a declaration for twenty acres, may recover tenand if he claim an undivided share in twenty, he may recover such share in ten. But if he claim the whole he cannot recover a half; and if he claim a moiety he cannot recover a quarter.” These last anomalies resulted from a construction which this court gave to the statute in that case, but which has been overruled by this court, and
It is a rule of pleading that where the facts which constitute the plaintiff’s cause of action, are supposed to lie in the knowledge of the defendant, but not of the'plaintiff, less particularity of statement is required in the declaration, than would otherwise be necessary. Thus in an action by a lessor against an assignee of the term, it is sufficient as regards the defendant’s interests, to aver in general terms that the estate of the lessee came to him by assignment; for the plaintiff is not supposed to know all the particulars of the defendant’s derivative title. Whereas in an action by the assignee against the lessor, the declaration must state specially all the mesne assignments ‘down to himself. For the assignee being privy to them, is presumed to be able to state them specifically; and therefore is not allowed to allege his title generally. (Gould’s Pleading, 184. 3 T. R. 767. 8 East, 85. 1 Saund. 112, n. See 3 Denio, 145, per Jewett, J. in Van Rensselaer v. Bradley.)
If the plaintiff may be thus general with respect to describing the defendant’s title, in such a case, no reason is perceived in principle why he may not be equally general with respect to the quantity of land of which he has become the assignee. The defendant is not likely to be surprised more in the one case than the other. It has already been remarked that there is no privity of contract between the assignee of the lessee and the lessor, or his assignee. He is liable only upon the privity of estate. The plaintiff proves the substance of the issue, when he shows the defendant claims as assignee, any portion of the demised premises. The existence of the privity of estate between him and the defendant is thus established ; and as it has been shown that the rent can be apportioned, it becomes matter of evidence on the trial to what extent the defendant is liable. It is in general for him to give evidence, limiting his liability, unless such evidence has already been disclosed by the plaintiff’s own proofs. The substance of the issue is all that the plaintiff is required to prove. The plaintiff may declare against the defendant as assignee of part; and thus
The ancient form of pleadings in actions against the assignee of the lessee, afford strong evidence of the law. The remedy may always be referred to as illustrating the right, and e con-verso. The declaration avers in the usual form, that afterwards “ all the estate, right, title and interest of the lessee, of, in, and to the demised premises, with the appurtenances, by assignment thereof, legally came to and vested in the defendant.” The old mode of putting in issue this part of the declaration, was to deny that the estate of the lessee in the premises, “ or in any part thereof? came to the defendant, <fcc. (5 Went. Pl. 72,73,) or “ that nothing of the demised premises” came to the defendant, &c. (2 Rich. Pr. 244.) Either of these modes puts in issue the declaration, without any affirmative implication. They assume, however, that if any part of the demised premises has vested in the defendant by assignment, he is liable pro tanto. But, the denial in this case, though according to the modern English precedents as found in Chitty, (2 Chit. 500, ed. 1809,) viz. that “ all the estate, &c. of the lessee of and in, die. by assignment thereof duly made, did not come to and vest in the defendant in manner and form, &c.” is a negative pregnant, involving an affirmative implication, that some part of the estate of the lessee, or his estate in some part of the premises demised, may have come to the defendant by assignment. (See Gould’s Pl. 320.) Such a traverse in an answer would not have been good since the days of Lord Bacon. It is not according to the anal
1 have thus treated the question upon principle, and perceive no objection to the plaintiff’s recovering, upder these pleadings, according to his proofs. They admit evidence of an assignment of part of the premises to the defendant, and of course of an apportionment of the rent. I will now proceed to examine it on authority.
The defendant’s counsel rely on the case of Hare v. Cator, (Douglas, 766,) decided in 1778, as establishing the position that in a declaration against the defendant as assignee of all the estate of the lessee in certain premises, evidence that he is assignee of a part, is a fatal variance. The case is very obscurely reported, and does not seem to sustain the note of the reporter. It is explained in Merceron v. Dowson, (5 Barn, & Cress. 479,) decided in 1825; and Mr. Justice Bayley remarks upon it, “ that the defendant there never was assignee of the interest in respect of which the plaintiff claimed the rent, for it was claimed in respect of the term which never was assigned, and the rent was issuing out of two distinct estates, in different counties, one of which never came to him.” He proceeds: “ There are many cases showing that the assignee of a part is
But the reasoning of the judge in Merceron v. Dowson upholds the decision of the referee in this case. The case was covenant for not repairing, brought against the defendant, charged as assignee of the lessee. The defendant, among other pleas, pleaded that on the 5th of August, 1817, he became possessed of the undivided sixth part of the said premises as tenant in common with J. B. and T. O., and W. B. B., and that afterwards, on the 23d February, 1824, he became possessed of the undivided third part as tenant in common with W. B. B., and T. 0., and that he was not assignee of the residue. The plaintiff demurred. The plea was held bad, and the plaintiff had judgment. Bayley, J. remarks, that the general form of declaring, describing the defendant as assignee of all the estate, &c. is allowed, because the plaintiff cannot be supposed to know the particulars of the defendant’s title. That the defen-, dant insisted, on the authority of Hare v. Cator, that no one, even when the plaintiff is in ignorance of any other assignees, is liable to be sued singly. After showing that Hare v. Cator did not support that proposition, he proceeds to show the plea was bad either in bar or abatement; that it did not admit that the defendant was liable to sustain any portion of the burthen, but denied that he was liable at all. “ It should have been that he was not liable to the whole burthen in the manner charged. He should have pointed out the other persons liable, and then the plaintiff might have been compelled to include them in his declaration.” Bayley, J. intimates that a defendant sued as assignee of the whole who is in fact assignee, but of part, should plead that fact in abatement, showing who the other assignees were. Littledale, J. says, “ the ground of the defence set forth in the plea is that the whole of the premises did not come to the defendant by assignment. If that was held good as a bar, the decision would amount to this, that if a lessee makes assignments to various persons as tenants in com
The case of Curtis v. Spitty, (1 Bing. N. C. 756,) is urged as sustaining Hare v. Cator ; and it must be conceded that the point decided, as indicated in the margin of the report, is the same in both cases. A doubt, however, is thrown over the accuracy of the report of Hare v. Cator, but the court of common pleas felt a reluctance to depart from it in a case where their decision could not be reviewed. No attempt is made to establish the case of Hare v. Cator upon principle. The plaintiff’s counsel, in effect, contended that as the lessor had no means of ascertaining the precise share of the property assigned to the defendant, the defendant should have pleaded in abatement the non-joinder of the other assignees; and he was understood by the court as insisting, that the assignee of a part of the premises might be charged by the lessor in an action of debt, with the rent of the whole land comprised in the original demise. This proposition, namely, whether there exists a privity of estate in respect of the whole land by an assignment of part only, opens, says the learned judge, a very nice and difficult question, not settled by any decision in the books, as far as he had ascertained. The case was in fact decided upon the ground that the issue had been found for the defendant in the precise terms in which it was raised. It does not appear that any offer was made by the plaintiff to apportion the rent and take a verdict for the proportion of which the defendant was proved to be in possession; on the - contrary, it is strongly to be inferred, that he claimed to recover the whole rent against an assignee of a part of the premises. The case was one of pleading ; and as it arose in 1835, after the adoption of the new rules,
In Armstrong v. Wheeler, (9 Cowen, 88,) the question was whether general evidence of occupany, under á claim of ownership, was sufficient to establish the issue, on the part of the plaintiff, in an action of covenant against the defendant; as assignee of the lessee, who had taken issue on the assignment; and it was rightly held sufficient; The chief justice, in delivering the judgment of the court, states, on the authority of Hare v. Cator, (supra,) that if á defendant is assignee of paid of the estate, and is charged as assignee of the whole, the variance will be fatal. But he enters into no reasoning to support it, and the point was not essential to á decision of the cause.
In Holford v. Hatch, (1 Doug; 182,) and in the Earl of Derby v. Taylor, (1 East, 502,) it ivas held thát an under-tenant of the lessee, holding a less quantity 6f interest than the lessee, could not be charged by the lessor, in covenant for rent as assignee of all the estate, right, title dnd interest of the lessee. Lord Mansfield remarked in Holford v. Hatch, that the action could only be brought' against the aásignéé of the whole term. There is no privity between a sublessee and the original lessor. He is not liable for the rent reserved in the original lease, except so far as his goods and chattels, while on the premises, are liable to a distress for the rent in arrear to the original landlord. (4 Kent’s Com. 96.) The interest of the subtenant would not merge in the estate of the lessor, if acquired by him, and he cannot surrender to the latter, but only to his immediate landlord or his assignee. (1 Hilliard, 125.) It is obvious, therefore, that the cases which hold that neither debt or covenant will lie by the original landlord against a sub-lessee of a part of the term, depend upon principles which do not conflict with the right of the landlord to maintain such ; j action against the assignee of a part of the land demised. In the latter case the privity of estate exists: in the former it does not.
It may be doubted whether the case of Lansing v. Van Alstyne, (supra,) was in all respects correctly decided. So far as it establishes that Apportionment is matter of defence, and that an eviction as to part of the premises may be pleaded in bar pro tanto, its soundness cannot bo questioned. But the defendant proved, without objection, Under his plea denying an assignment of all the premises to himself, that as to three-eighths, he was in possession Under another landlord, who had recovered the premises in an action of ejectment, under a paramount title, and that he held under the plaintiff only five-eighths. The plaintiff sought to recover of the defendant the whole rent, and
The case of Norton v. Vultee, (1 Hall, 384,) was an action of debt by the lessor against the assignee of the lessee, charging, in the usual form, that all the estate, &c. of the lessee came to the defendant by assignment. The cause was tried under the plea of nil debit. The plaintiff showed that the defendant was in possess! n only of a part of the premises, but obtained a verdict for the whole rent. A new trial was granted to allow an apportionment of the rent; the court holding that, as assignee, the defendant was only answerable for the rent of that portion of the demised premises which came to his possession. In that case the assignment was not put in issue by the pleadings, and no objection was made to an apportionment on the ground that it had not been insisted on by plea. The counsel and court seem to have taken it for granted, that the plaintiff could recover no more than was covered by his proof—that he might declare for the whole, and recover a pari—whether the sum claimed was diminished by partial payments, or by evidence showing that the defendant was in fact but assignee of part of the demised premises; and this under the plea of nil debit.
The question arising in the present case was involved in Nellis v. Lathrop, (22 Wend. 121.) The plaintiff sued as assignee of the lessor, claiming to recover the whole rent, and the lessee defended on the ground that he had become the purchaser of a part of the reversion. This evidence was excluded at the circuit, as not forming a bar, and also upon another ground not material to this discussion. The plaintiff was permitted to recover the whole rent, with interest. On motion for a new trial, the supreme court held that the evidence offered
The same principle was involved in Cole v. Patterson, (25 Wend. 456.) The case is obscurely reported as to the pleadings ; but it is believed the action was covenant by the plaintiff as assignee of the lessor, against the assignee of the lessee. On the trial the plaintiff proved in himself a title, as tenant by the curtesy, to an undivided fourth part of the reversion, and that the defendant was assignee of 75-)- acres, parcel of the land mentioned in the lease; and he claimed to recover his proportion of the rent chargeable upon the 75-)- acres possessed by the defendant, together with interest thereon ; and the circuit judge permitted him to recover accordingly, and the supreme court refused a new trial. There were other questions in the case, and some points raised on this occasion were not presented on that trial, though it was tried by eminent counsel. The case however shows the general sense and understanding of the bar upon these questions. If that case was correctly decided, as I think it was, surely this was.
It by no means follows, because a tenant may present his defence as to a portion of the premises by plea, that he is bound to do so. If as to a part of the premises, the defendant has been evicted, the case of Stevenson v. Lambard, (supra,) shows that the defendant may plead in bar the eviction as to that part, but that such a plea is no bar to the whole rent. But the case does not prove, that if as to a part of the premises, the de
If the rule contended for by the defendant’s, counsel should be established, the remedy of landlords to collect rent upon long leases would be essentially impaired- In till our agricultural districts, the original tracts under lease, are -in a few years so divided and distributed under the operation of our laws of descent and devise, and by the rapid progress of- social improvement as to render it impracticable for landlords to ascertain the precise quantity held by each tenant. In England, under a different rule of descent and a more stationary condition of society, the rule supposed to be established in, Hare v. Cator, would produce little inconvenience. It would occasion less embarrassment here, under the brief term to which leases of agricultural land are restricted, by the new constitution, article 1, § 14; but under these short terms, the ancient common law rule will be better for all parties, than that contended for by the defendant.
2. The next question is whether the referee was right in al
It has been strongly urged, on the part of the defendant, that in England, interest is not recoverable on rents, although payable in money; that it is in no case payable except upon a contract, express or implied; and that it will not be. implied except upon an express contract to pay money, at a given day, or upon some known and established usage of trade; and in short, that an implied contract for the. payment of interest is not raised except upon commercial paper, or other commercial or mercantile transactions. Although there is much contradiction in the British cases, on this subject, it is believed the present practice in that country, as to the allowance of interest, depends on more liberal principles. In the case of Higgins v. Sargeant, (2 Barn. & Cress. 348,) the remarks of the learned judges, and especially those of Chief Justice Abbott, would seem to sustain the position of the counsel; and in the subsequent case of Foster v. Werter, Lord Oh. J. Tindal takes for granted that interest is not recoverable in an action of debt or covenant for rent. That, however, was not the question to be decided in either case. But other English judges have taken a different view of the matter. Thus, in Skerry v. Preston, (2 Chit. Rep. 245,) the question arose whether a landlord, by agreeing to receive interest upon rent, waived his right to a distress. And it was held by the king’s bench that he did not, though he could not distrain for the interest; and Lord Ellen-borough observed, “ that this was only an agreement for that which the law would have given him; when the money is payable, on a particular day, the jury will give interest as damages.” The case of Robinson v. Bland, (2 Burr. 1077,) decided in 1760, shews that at that day interest was payable, when the debt was withheld after the day stipulated for its
The general doctrine which prevails in this state, on the subject of interest, was elaborately discussed and correctly expounded, in Reid v. Rensselaer Glass Factory, (3 Cowen, 436.) Ch. J. Savage, after a full examination of the cases, asserts that interest is allowed, 1. upon a special agreement; 2. upon an implied agreement; 3. when money is withheld against the will of the owner ; 4. by way of punishment for an illegal conversion or use of another’s property; and 5. upon advances of cash. The judgment of the supreme court was affirmed by the court of errors. (5 Cowen, 587.) The doctrine of that case has been applied, in numerous instances, to actions brought for rent. In Jackson v. Wood, (24 Wend. 443,) interest was allowed to be computed from each quarter day, as it became due, instead of waiting for the expiration of the term. This allowance was made under a suggestion upon the record, in an ejectment, for mesne profits. In speaking of the allowance of interest, Ch. Justice Nelson remarks, “ so much the plaintiff has lost, and the defendant enjoyed, by means of the wrongful possession.” And at an earlier day this court, in Clark v. Barlow, (4 John. Rep. 183,) held that interest was recoverable in covenant for rent, payable in money. In Still v. Hall, (20 Wend. 51,) this court held that interest was recoverable on money due under a special contract. Interest, says Mr. Justice Cowen, runs from the time when the money falls due. In Williams v. Sherman, (7 Wend. 109,) interest was allowed in an action of assumpsit for use and occupation of a wharf, as a landing place for a steamboat, on the rent which had been fixed by parol. And the court repeat with approbation the observation of Lord Thurlow, (2 Bro. C. C. 3,) “ all contracts to pay undoubtedly
It has been urged also, that the allowance of interest for rent is analogous to interest upon interest, and is against the policy of the usury laws. It is conceded that compound interest is not recoverable in this state, except in special cases. Even an original agreement, at the time of the loan or contract, that if interest be not paid at the end of the year,'it shall be deemed principal, and carry interest, will not be recognized as valid. (Per Kent, Ch. in State of Connecticut v. Jackson, 1 John. Ch. Rep. 14. La Grange v. Hamilton, 4 Term Rep. 613. 2 H. Bl. 144.) In our sister states the rule for allowing interest has been pushed as far as with us, if not farther. Thus in the recent case of Catlin v. Lyman, (16 Verm. Rep. 45,) the parties had stipulated for the payment of interest on a promissory note, before the principal became due; in a suit for the recovery of that interest, interest upon that interest was allowed by way of damages for the delay of payment. And in Beeson v. Beeson, (1 Harring. 106,) interest was allowed by the supreme court of Delaware, on arrears of an annuity given in lieu of dower. Whether the case of Catlin v. Lyman, (supra,) would be followed in this state, it is not material now to inquire. There is an obvious distinction between allowing interest upon rent, and interest upon interest. Rent is a certain profit issuing yearly out of lands and tenements corporeal. (2 Bl. Com. 41.) The amount, as well as the time and manner of payment, depends on the agreement of the parlies. Interest, on the contrary, is a stipulated allowance for forbearance and giving day of payment; and the rate which the creditor is entitled to recover, is regulated by law. It is not, indeed, a violation of the
Enough, it is coiic'eived, ti'as been said to establish the position that rent payable in moiley, draws interest from the time it is due, and while it is unjustly withheld. It remains to inquire, in the next place, whether the samé principle is applicacable to rents payable in wheat. The principle settled in Reid v. Rensselaer Glass Factory, (3 Cowen, 436, and 5 Id. 587,) will warrant its allowance in this casé. The amount of rent in cash can be readily ascertained by the current price of wheat at the time and place of delivery. Id cerium est, quod cerium reddi potest. Such rent cannot be said to be an unliquidated demand. Being payable at a time and place certain, and in a specified article, the amount is as far from uncertainty as if payable in cash. It may be distrained for, as well as tent payable in money. (2 Bl. Com. 41. Fry v. Jones, 1 Rawle,
If we look to the adjudged cases, we shall find but a single one in this state, and none elsewhere in this Country, opposed to its allowance. In 1806, this court decided^ that as a general rule, interest is not recoverable in covenant for arrears of rent, payable in wheat. (1 John. Rep. 276.) The case is a mere note, without any detail of the facts and circumstances. The decision does not seem to have inspired much confidence even in the court by which it was pronounced ; for we find that in the subsequent case of Lush v. Druse, (4 Wend. 313,) it was held after argument, directly tbe contrary; deciding that rent payable in wheat at a day and place certain, draws interest from the time it was payable. The value of the wheat, says Chief Justice Savage, became due by the defendant’s default to deliver it at the day, according to his contract; and interest is as much the right of the creditor after the principal becomes payable, as the principal itself. This doctrine derives confirmation from Spencer v. Tilden, (5 Cowen, 144, before cited,) where interest was allowed on a contract for the delivery of cows and calves, to be computed on their value at the time and place of delivery.
The great principle on which a distress was allowable of common right, in the early stages of the law, and where interest was forbidden, was the certainty of the demand. No distress, says Lord Coke, could be taken for services that were not certain, or which could not be reduced to certainty. (1 Inst. 96, a. 142, a. b.) And the rent may as well be in delivery of hens, capons, roses, spurrs, bowes, shafts, horses, hawks, pepper, comine, wheat, or other profit that lyeth in render, office, attendance and such like, as in payment of money. For all these a distress lay of Common right. In ancient times rents were almost universally received in personal services, or in kind, such as wheat, cattle, &c. (See 1 Smith’s Wealth of Nations, 133.) In modern times, new articles are introduced as rent,
In all cases, where the reservation of rent is so certain as to justify a distress, it will, on being unjustly withheld, according to the analogy of the cases, carry interest from the time it was due and payable.
There is another class of cases in which interest rests in the discretion of the jury or referee, and may be and generally is given by way of damages. In those cases the court will not interfere with the question, unless the discretion has been exercised in withholding it in a case in which it ought to have been allowed by fixed principles, or e converso; or, the discretion has been grossly abused. The cases may be found collected, many of them, in Sedgwick on Damages, in his 15th chapter, pp. 391, 408. I do not propose to review them, as the plaintiff in this case was in my judgment entitled to interest, as matter of right.
Whatever may be the law in England, and in other states, the question of interest for rent, whether payable in money or wheat, cannot be considered an open one in this state. It has been the invariable practice, at the. circuits, for more than a quarter of a century, to allow interest in cases like the present. So well settled has our practice been in this respect, that the question of interest on a debt which is withheld, after it was due, without the assent of the creditor, rarely passes into the reports, unless some more important question is connected with it. After the full discussion which this subject underwent, both in this court and the court of errors, in the case of Reid v. Rensselaer Glass Factory, (3 Cowen, 393, 5 Id. 587,) it would be a waste of time to go over all the cases again in detail. It
We think the referee was right upon the allowance of interest.
The objection taken before the referee to the plaintiff’s right to recover, on the ground of the covenant giving a pre-emption right to the lessor or his heirs, and annexing a penalty for aliening without such offer, has not been discussed before us. The objection cannot be raised under these pleadings, and if the former decisions of this court are to be adhered to, would be unavailing under any pleadings. (See Jackson v. Corlis, 7 John. Rep. 521; Same v. Shutz, 18 Id. 174; 7 Cowen, 285 ; 8 John. Rep. 61.)
W'e think there is no error in the decision of the referee, and that the motion to set aside the report should be denied, with costs.
Motion denied.