Van Rensselaer v. Gifford

By the Court, Harris, J. The fact that the original lease or grant was to two persons jointly, cannot in anyway affect the liability of the defendant as assignee of a part of the premises charged with the rent. If, as is probable, the grantees made partition of the lot between themselves, and the east half of the lot had come to the defendant by descent or purchase, he would be liable for the proportionate share of the rent chargeable [352] thereon as assignee of the lessee. His liability would be the same, if he had purchased from both the grantees. As the covenant to pay the rent reserved in the lease runs with the land, it is enough to establish the defendant’s liability that he has, in some way, succeeded to the rights of the original grantees in a part of the lot. How he acquired such rights is quite immaterial. (Van Rensselaer v. Bradley, 3 Denio, 135. Same v. Gallup, 5 id. 454.) It is claimed by the defendant that though he may have become liable as assignee of the east half of the lot for its proportionate share of the rent, yet that the plaintiff, by his purchase of the other half at the sheriff’s sale, in 1844, released him from such liability. Upon this point it might be sufficient to say, that it does not appear that the plaintiff, by means of his purchase, acquired any title or interest in the premises described in the deed. Ho evidence was given to show that at or before the time of the sale, the defendant in the execution had any interest in the lot liable to such sale, or if he had, that any judgment had been recovered against him which was a lien thereon. Hor did it appear that the plaintiff had ever acquired possession of the premises under his deed from the sheriff. On the contrary, it appeared affirmatively that, at the time of the trial, the defendant in the execution was himself in possession. Assuming, therefore, that a purchase of part of the premises by the plaintiff would operate to extinguish his claim for rent upon the residue, the facts of the case would not warrant the application of the rule. But it has just been held, in Van Rensselaer v. Chadwick,(a) that where several persons, being the owners of land chargeable with rent, as tenants in common, make partition between themselves, each assuming the payment of his equitable share of the rent, a release to one of the owners does not extinguish the liability of the other. The same principle is applicable to the case of a purchase of a portion of the land by the owner of the rent. The tenants, having by their own contract severed their interest in the land, and each, independently of the other, agreed to pay [353] his just proportion of the rent chargeable upon all the land, each is at liberty to deal with the owner of the rent as he may see fit, without reference to the other, and, either by a release or a sale, to extinguish his liability. The tenants having, as between themselves, agreed to become severally liable, each for his own share of the rent, the owner of the rent might make himself a party to that agreement, as well by purchasing the land of one of the tenants and thus extinguishing the rent by merger, as by a release. Mo dealing between the owner of the rent and the owner of a part of the land, thus held in severalty, could affect either the rights or the liability of the owner of the residue. In this case, the evidence of a partition of the land and a division of the rent between the owners, is not as conclusive as it was in the case of Van Rensselaer v. Chadwick, but I think it is sufficient to sustain the decision at the circuit. In Farley v. Craig, cited in the opinion of the court in Van Rensselaer v. Chadwick, it W'as considered that the payment of a specific amount of rent for a specified part -of the lands subject to the rent, for a series of years, was abundant evidence of an apportionment of the rent by contract between the several owners of the land. The evidence in this case shows that, in 1841, the defendant settled for the rent upon the half of the lot which he then had in possession, and which he continued to hold up to the time of the trial. In the absence of any proof to the contrary, I think this evidence was sufficient to justify the inference that a division of the lands had been made between the different owners, and that they had, by contract, made an apportionment of the rent between themselves. Indeed the fact was not disputed at the trial. It seems to have been assumed that the defendant was the owner of the east half of the lot, and that the owners had each assumed to pay their proportionate share of the rent. Again; it is insisted that it was error to allow'the plaintiff to recover for that part of the rent payable in fowls and service with carriage and horses, for the reason that such rent is, in its nature, indivisible, and therefore cannot be apportioned. I do not think the premises upon which the argument rests are tena [354] ble. Is such rent, in its nature, indivisible? In the case under consideration, what would prevent the apportionment of the four fat fowls and the day’s service to be rendered annually between the two tenants of the land chargeable therewith ? I am unable to see why such division vrould not be as practicable as in any other case. But if it be conceded that these rents are indivisible, it seems from the authorities cited by Mr. Justice Jewett in Van Rensselaer v. Bradley, (3 Denio, 142,) that where the owners of land chargeable with rent which cannot be apportioned, make a partition between themselves, each becomes liable for the whole rent. If this be so, and by the division of the land the defendant and the owner of the-other half had each become chargeable with the whole rent payable in fowls and service, the extinguishment of that part of the rent chargeable upon the other half of the land could not affect the defendant’s liability. [Albany General Term, May 1, 1855. The only remaining point made upon the trial was, that which relates to the construction to be given to' the provision in the lease reserving, as a part of the rent, one day’s service with carriage and horses. This point has already been considered and determined in Van Rensselaer v. Chadwick. I am of opinion, therefore, that the judgment at the circuit should be affirmed. Judgment affirmed. Wright, Harris and Watson, Justices.) Footnotes [(a)] Ante, p. 333.