Anderson v. Dodge

Woodward, J.: The complaint alleges that the plaintiff and her infant son are owners in common of a house and lot in Callicoon, in the town of Delaware, Sullivan county, N. Y.; that the house is a double tenement house, and that the defendant occupied one-half of such house from the 1st day of August, 1910, to the 1st day of October, 1911, as a tenant, a period of fourteen months, and that during such time he has not paid any rent to the owners of said premises; that the value of the use and occupation of that portion of the house occupied by said defendant was fairly worth the sum of $13 per month, and that at different times during said period the said defendant promised and agreed to pay to this plaintiff for herself and child, Frank M. Anderson, said rent; that the plaintiff has served written [202] notice on the defendant that she claimed and demanded said rent and the said defendant has not disputed her claim thereto; that the said infant child of this plaintiff is an infant of the age of less than fourteen years; that he has no general guardian, hut is under the care and control of the plaintiff as his natural guardian and she, as such natural guardian, has the care and control of his property interests, and that by reason of such facts the defendant is justly indebted to this plaintiff in the sum of $182, etc. The answer admits his residence in the county of Sullivan, and denies on information and belief the other allegations of the complaint, and sets up some allegations to the effect that the premises were claimed to be owned by the plaintiff’s husband, and that the defendant made payment to him for the rent, and denies that he (the defendant) ever recognized the title or ownership of the plaintiff, or ever promised or agreed to pay her any rent therefor, and alleges that no contractual relations ever existed between the plaintiff and defendant. As a separate defense it is urged that there is a misjoinder of parties plaintiff, in that one Frank M. Anderson claims to he and now is joint owner of said premises with the plaintiff, so far as the plaintiff may own the same, and has equal rights therein with the plaintiff and has not been joined either as a party plaintiff or defendant hereto. It was established on the trial of the action, or at least there was evidence from which the jury might properly so determine, that the defendant entered into an agreement for the rent of the premises with the plaintiff’s husband, and there does not appear to be any question that the defendant has paid rent to him for all the time that he occupied the house. It seems that the husband claimed title to the property, and that the defendant, having bargained with the husband, continued to pay rent to him with an understanding that Anderson would adjust matters if he did not succeed in his effort to maintain his title to the premises. The defendant appears to have entered into possession under his lease from the husband, and the jury has evidently found that there was never any relation of landlord and tenant existing between the parties to this action. [203] Assuming that Frank M. Anderson, the infant son, is an owner in common with the plaintiff, it seems clear that the father had the lawful right to rent these premises and to receive the payment of such rent. Section 80 of the Domestic Delations Law (Consol. Laws, chap. 14; Laws of 1909, chap. 19) provides that “ Where a minor for whom a general guardian of the property has not been appointed shall acquire real property, the guardianship of his property with the rights, powers and duties of a guardian in socage belongs: 1. To the father; 2. If there be no father, to the mother,” etc., and the courts have held that a guardian in socage may lease the lands of his ward for a term as long as he continues guardian, or for any number of years within the minority of the ward, subject to its being defeated under certain contingencies. (Emerson v. Spicer, 46 N. Y. 594; Matter of Hynes, 105 id. 560, 563.) In the latter case it is said that “ Such a guardian had a right to the possession of the ward’s lands, and to the receipt of the rents and profits thereof, and could maintain ejectment to recover possession of such lands.” The father is living, and having the right to rent the property of his ward, and to receive the rentals, he was, in such capacity, in the position of a tenant in common with the plaintiff, and any joint owner of land can demand the whole rent from the tenant, and a payment to one joint owner is good as to the others, and will protect the tenant. (Griffin v. Clark, 33 Barb. 46, 48.) There is no general guardian of the infant Frank M. Anderson, and his father is, therefore, his guardian in socage, with all the rights of such guardianship, and having rented his son’s interest, as a tenant in common with the plaintiff in this action, and received the rents, the defendant cannot be liable in this action. The judgment and order appealed from should be affirmed. All concurred, except Kellogg, J., dissenting in memorandum.