Buck v. Binninger

Willard, J. The first statute which authorized summary proceedings, on the part of the landlord, to remove his tenant for non-payment of rent, or for holding over after the expiration of his tenancy, without the consent of his landlord, was passed April 13, 1820. (Laws of 1820, p. 176.) That statute made no provision for reviewing the proceedings by this court; thus leaving this court with no other than its common law powers, of re-examining the process and proceedings before the magistrate by the cosnmon law certiorari. In Lynde v. Noble, (20 John. 80,) the supreme court held that such certiorari would not lie until the case had been finally tried, and judgment given thereon, and that then it would not suspend the writ of restitution or possession. And in Nichols v. Willimns, (8 Cowen, 13,) it was held that the certiorari never brings up the testimony given before the tribunal to which it is directed, except when it goes to a justice’s court. Its office is merely to remove the record, of which the testimony is no part. It was held, also, in that case, that the judge had no power of adjournment in such cases. The power to require the return of the testimony, &c. by a justice to a certioravi, was given by statute, and the proceedings under it are familiar to the profession. The revised statutes (vol. 2, p. 511) made essential alterations in the act relative to summary proceedings to recover the possession of lands, among which are the power to compel the attendance of witnesses before the. judge, and the adjournment of the proceedings on the application of either party, and the awarding of costs to the prevailing party on certiorari. But the most important change is. that embraced in the 47th sec [401] tion, page 516, in which it is enacted that “ the supreme court may award a certiorari for the purpose of examining any adjudication made on any application hereby authorized.” It is true the supreme court, in Birdsall v. Philips, (17 Wend. 464,) and Prindle v. Anderson, (19 Id. 391,) held that on a return to a common law certiorari, no other questions can be raised than those relating to the jurisdiction of the officer, or court, before whom the proceedings are had, and to the regularity of such proceedings. Those two cases arose under the statute in question, but it does not appear that the attention of the learned judge by whom the opinion was pronounced, had been directed to the change of phraseology in the acts. That the doctrine was laid down correctly with respect to the office of a common law certiorari, is abundantly- shown by the cases cited by the learned, judge, and the various other cases which have been cited on the present argument. But the case of Prindle v. Anderson, (supra,) was carried to the court of errors in 1840, and reversed. (23 Wend. 616.) The chancellor, who delivered the judgment of that court, puts the reversal upon the ground that by the 47th section the power of this court is necessarily enlarged, under the certiorari provided for reviewing the summary proceedings between landlord and tenant. And he considered it evident that the legislature did not intend, in these cases, to limit the powers of the court, as in the case of a certiorari at common law, to the mere questions of jurisdiction of the inferior tribunal, and the regularity of its proceedings; but that, on the contrary, they intended to give the supreme court full and competent power to examine, upon the merits, every decision of the judge a quo upon a question of law, and to affirm, reverse, or quash the proceedings, as justice should require; and also to award costs to the prevailing party, which they are not authorized to do upon a mere common law cer-tiorari. The doctrine of this case was again affirmed by the court of errors in the subsequent case of Niblo v. Post’s adm’rs, (25 Wend. 280.) We have therefore a right, on the return to this certiorari, to look into the return, and to decide the case upon its merits. [402] Without examining the various points that were raised on the hearing before the judge, there is one that was fatal to the application of the landlord. It appears by the testimony that he was merely the owner of the reversion expectant on the termination of the estate of Edward Gainer, the tenant for life, who was in the actual possession. Binninger was not entitled to the possession of the premises in question, until after the death of Edward Gainer. He had no right to let the place to Jehiel Buck, the defendant. He was not in possession, and was bound by Buck’s covenant in the lease to Edward Gainer, for the quiet enjoyment of the latter during life. The judge, on the finding of the jury that Jehiel Buck was the tenant of Bin-ninger, holding over after the expiration of his term, issued his warrant requiring the sheriff “ to remove all persons from the premises, and to put Binninger into the full possession thereof.” Edward Gainer was then in possession under his life lease, and was liable to be put out; and Binninger, who was not entitled to the possession, under his deed, until the termination of the life estate of Edward Gainer, was required to be put in possession. If this recovery can be upheld, I see nothing to prevent two strangers, without color of title, from obtaining, by collusion with each other, the possession of any man’s farm. The doctrine on which the judge seems to have relied, that a tenant cannot dispute the title of his landlord, and attorn to a stranger, was inapplicable to this case. There was a question behind it, namely, whether the landlord bad any right to the possession of the premises at all. That right was put in issue by the defendant’s affidavit. Binninger could not have maintained an ejectment against the defendant, during the continuance of the outstanding life estate of Edward Gainer. (2 R. S. 303, § 3. Adams' Ejectment, 29.) Much less should he be permitted to recover in this summary proceeding, which is a substitute for an ejectment. (See Gillet v. Stanley, 1 Hill, 121, and Grout v. Townsend, 2 Id. 554.) These cases show that an outstanding estate for life, in a third person, will defeat an ejectment by the owner of the reversion, without showing [403] any connection between the tenant for life and the defendant. (Adair v. Lott, 3 Hill, 182, S. P.) Binninger never was in possession of the premises at all. At the time of his purchase of the reversion in January, 1843, Loring Hastings occupied the premises under a contract with John Gainer, and took care of Edward Gainer, the old gentleman, who lived on the place. It was a part of his contract that he should take care of the old gentleman. It is fairly to be inferred from the return that this life estate to Edward Gainer and wife was granted by their son John Gainer, for their support. Up to the time of these proceedings they were supported there. It seems from the verbal agreement proved between the defendant and Binninger, in the spring of 1844, that the defendant was to indemnify the plaintiff against the expense of supporting the old gentleman. He was therefore probably as much the tenant of Edward Gainer as of the plaintiff, according to the plaintiff’s own showing. Again, the covenant for quiet enjoyment in the lease from John Gainer to Edward Gainer, was a covenant running with the land. (Spencer’s case, 5 Rep. 16. 17 Wend. 147, 159, per Cowen, J. 2 Chitty, 482. Hunt v. Amidon, 4 Hill, 345.) The plaintiff, under his deed from John Gainer and wife, succeeded to the rights and liabilities of John Gainer, and was consequently bound to guarantee to Edward Gainer the quiet enjoyment of the premises. He ought not to be permitted to do by the forms of law that which by contract he is bound not to do. The effect of his recovery in these proceedings against Buck, is to remove Edward Gainer from the possession of the premises in which he has a life estate. Being thus removed from the possession, the latter could maintain an action against Binninger on the covenant for quiet enjoyment, and an ejectment to regain the possession. The law, to avoid circuity of actions, will prevent Binninger from maintaining the proceedings. I have omitted to discuss the objection to the form of the petition, arising from the omission to state that Binninger was the owner of tire premises, or entitled to the possession thereof, at the time of his demise to Buck: The petition of Binninger [404] may be true, and he not be entitled to the possession. The application neither states that Binninger let the premises to the defendant, nor that the defendant was his tenant; except by implication. He does not state that he was the landlord of the defendant with respect to these premises. I am satisfied the proceedings are erroneous, and that' they should be reversed with costs.