Schott v. Burton

By the Court, Parker, J. It is conceded by the defendant that the plea is bad. But he contends that the declaration does not show a right of action in the plaintiffs, and claims judgment upon that ground. The defendant is estopped from denying that Robert L. Livingston had title so far as to authorize him to execute the lease made on the first day of May, 1841. It must b.e taken as established, therefore, that Livingston had the right to execute the lease, and for the full term of three lives. But as the suit is not brought by Livingston, but by those claiming to have succeeded to his rights under the lease, the plaintiffs are bound to establish, and the defendant has a right to controvert, their derivative title. (1 Chit. Pl. 482, 346. 1 Saund. 233, note 2. 1 Stra. 230. Comyn's Digest, Pleader C. 8 Term Rep. 488.) Though the defendant is not at liberty to deny his liability for rent on the lease, he has a right to know that the person calling on him for payment is the proper person to demand it. It is alledged in the declaration and admitted by the demurrer, that on and - before the 11th day of June, 1817, Margaret Maria, wife of Robert L. Livingston, was seised in her own right, in fee, of the premises in question; and the plaintiffs claim title under a trust deed executed by Livingston and wife to William Slosson on the day last mentioned. That deed cannot be supported, on the allegations contained in the declaration. There was no livery of seisin, and it cannot therefore have effect [182] as a feoffment. The deed was void as a bargain and sale, because there was no valuable consideration; and it cannot operate as a covenant to stand seised to the uses contemplated by the parties, because Slosson was a stranger, and there was no consideration of blood or marriage between him and the grantors, and it makes no difference that Slosson was merely the trustee for the relatives of the covenantors for whose benefit he was acting. (1 Leon. Rep. 195. 1 Co. 154, a. 2 Id. 15. Cro. C. 529. 1 Sid. Rep. 25. 11 John. 337. 1 Cowen, 622.) The case of Jackson v. Sebring, (16 John. 515 to 528,) is conclusive on this point, and covers the whole ground. No title passed, then, from Livingston and wife to Slosson ; and consequently none could have passed by the deed from Slosson to Livingston, These deeds, and the declaration of uses made by Livingston and his wife, were all parts of the same transaction, and are to be construed together. (1 John. Cas. 95. 15 John. 463. 3 Wend. 233.) They were ineffectual in divesting the title of Mrs. Livingston, or in establishing a title by way of use, either in her husband or in their daughter Cornelia Louisiana, under whom the plaintiffs claim as heirs at law. The declaration of uses rested upon and was designed to give direction to, the title supposed to be conveyed by the deeds. Ho effect can be given to it standing alone. It does not purport to be a conveyance; nor is it a covenant that Mrs. Livingston shall stand seised. What is said on that subject, in the instrument, related to Mr. Livingston, who was then supposed to have the title under the deed from Slosson; whereas in fact he had only a contingent life estate as tenant by the curtesy. The declaration of uses was a mere declaration of intent, never effectuated by a conveyance. The legal title continued in Mrs. Livingston, and after her death it descended to her heirs, subject to the life estate of her husband as tenant by the curtesy. The question here is not whether Robert L. Livingston had a right, while tenant by the curtesy, to execute a lease for three lives. The defendant is precluded from questioning his right, and the plaintiffs are seeking to enforce the lease, not to avoid it. [183] [Albany General Term, May 3, 1852. Watson, Parker, and Wright, Justices.] The defendant covenanted to pay the rent to Robert L. Livingston, his heirs and assigns, and it happens that the heirs of Mrs. Livingston are his heirs. They are the proper persons to bring this suit, and the declaration ought to show that they are made plaintiffs. It appears, however, affirmatively, by the declaration, that Cornelia Louisiana was not the only child and heir at law of Mr. and Mrs. Livingston. And where it appears on the face of the pleadings, in an action on contract, that all the parties are not joined as plaintiffs, it is fatal on demurrer. (1 Chit. Pl. 7.) The 'plaintiffs have failed to establish a derivative title by which they succeed to the rights of the lessor, under the lease in question, and there must be judgment for the defendant, with leave to the plaintiffs to amend on payment of costs.