Hotchkiss v. Auburn & Rochester Rail Road

By the Court, E. Darwin Smith, J. The exceptions which should, properly, be first considered, in the examination of this case, relate to the parties prosecuting the action, and their right to maintain the same. The objection is that the order of the 27th of September, 1858, substituting the present plaintiff in the place and stead of Lucretia Hotchkiss, deceased, and the order of the date of September 12, 1860, refusing to set aside said order, were improperly admitted in evidence. These exceptions cannot be sustained. These orders were not the proper matters of evidence or exception. They belonged to the pleadings in the cause, and should have been annexed to the complaint, and became virtually a part thereof; and it was no more exceptionable to read them on the trial than it would have been to read the complaint in — 610 — the action. The objection that the first order was not applied for within one year from the death of Lucretia Hotchkiss, may have been expressly waived when the said order was granted. And this may have been the precise ground upon which the court refused to set it aside on motion made for that purpose. If that were not so, and the motion to set aside the first order for any reason was improperly denied, the party had a complete remedy by appeal. Such questions of practice cannot properly be raised or considered on the trial of the issue, at the circuit. The substitution of the present plaintiff in the place of Lucretia Hotchkiss does not change the rights of the parties, and the action must obviously be continued, to enforce the same rights set up in the original complaint, and cannot be prosecuted to enforce any new rights depending upon her death, except as such death, by descent or under her will, cast such rights upon the present plaintiffs. The action is ejectment, to recover the undivided half of 3 A acres of land taken by the defendant, in 1841, and since used by it for rail road purposes; and unites, as is allowed by the code, a count for use and profits of the land. The title of Lucretia Hotchkiss in her lifetime, to the premises in question, and the right of recovery for the same by the present plaintiff, is unquestionable, unless such title was divested by the proceedings of the defendant to acquire such title, under the acts of 1836 and 1838, incorporating the defendant and prescribing the manner in which it might acquire title for the use of such corporation, independently of the questions which arise upon the ante-nuptial agreement between said Lucretia and the plaintiff, Leman B. Hotchkiss, and other questions which arise upon the defense. The proceedings instituted by the defendant before the Hon. Anson Jones, county judge of Ontario county, for the appointment of a jury of appraisers to assess the value of the land required for the construction of the defendant’s rail road in and through — 611 — the county of Ontario, having been admitted in evidence by the circuit judge, present no question of exception on the part of the defendant, except so far as such proceedings are held invalid. Such proceedings as presented in the evidence, disregarding all other objections made by the plaintiffs thereto, do present one ground of defect in the defendant’s title to said premises, which I think entirely unanswerable. Lucretia Hotchkiss was, at the time of instituting such proceedings, a minor, and was at the time absent from her proper home and domicil—her mother’s house in Phelps—attending school in Albany. Conceding that the service of the several notices of said proceedings was properly made upon her, according to the provisions of the defendant’s charter as amended in 1858, still, as she was an infant, it was indispensable that some proper person should be appointed by the county judge conducting such proceedings, to appear for her before the jury of appraisers, to represent her, and attend to her interests on the appraisement. The appointment of Thomas Smith to appear before said jury and attend to her interests on such appraisement, was sufficient in form, but the non-attendance of said Smith before the jury, and his entire neglect in any way to appear for or represent her interests before the jury, renders such appointment entirely nugatory. The statute was not complied with simply by the making of an appointment of an attorney for her, by the judge, sufficient in form. It was the duty of the defendant to see to it that some reliable person was appointed, living in the vicinity, who should in fact personally appear before the jury and attend to and protect her interests, upon such proceedings. Until such appointment and appearance the jury had no jurisdiction of her person, to entitle them to proceed to appraise the land, or the damages of the said Lucretia, for the taking of such land by the defendant. The statute was designed to secure the actual attendance of some fit person, before the jury, as guardian or attorney, to — 612 — attend personally to the interests of the infant upon such appraisement. And without such appearance, all the doings of the jury, in the proceeding, are entirely unauthorized and void. The title of the defendant to the property, therefore^ fails. The deed in trust of Lucretia Oaks to Willard Wells I do not think divested her of title to said land. The defendant was then in actual possession of the land, using the same and claiming title thereto adversely to all the world. Whatever might otherwise have been the effect of that deed, I think it did not divest her of title, against the defendant. The action to recover the land could not have been brought by the said Willard Wells in his own name, but must necessarily have been brought in the name of the said Lucretia, in her lifetime. The defendant entered into possession of the lands in question in the spring of 1841, and the deed of Lucretia to Willard Wells was dated April 29, 1844. She had not been in possession for more than three years before the execution of said deed, and it was clearly void as against the defendant. The plaintiff was therefore clearly entitled to recover the land' described in the complaint. The remaining points for consideration relate to the questions of damages for the occupation and deterioration of such premises, and of injury thereto, and of the use and profits thereof. This action was commenced May 17,1849, and Lucretia Hotchkiss died July 31, 1855, leaving five children, who are the plaintiffs, with their father, who is the executor under the will of their mother, and guardian of his children, who are all infants. On the decease of Mrs. Hotchkiss, under her will the title to all her real estate vested in her children. In the prosecution of this action they were entitled, at the trial, to recover the land, and the use thereof as incident thereto from the time of her decease. All claim to damages done to the estate, and for the use and profits thereof at the time of her decease, went to her executor, and belonged — 613 — to the personal estate. The plaintiffs were only entitled to recover the land claimed, with damages for withholding the same, and the rents and profits thereof from the time their title to such rents and profits accrued. The rents and profits before the death of Mrs. Hotchkiss, which occurred July 31, 1855, belonged to Mr. Hotchkiss, either in his own right, under the trust deed, or as executor, under the will. In either view they could not be recovered in this suit. The court directed a verdict for the plaintiffs for the recovéry of the premises and damages to the land, and for the net profits thereof for twenty years, according to the claim made by the plaintiffs. This, I think, was error. The damage to the premises by reason of the excavation and embankment and ditches dug thereon, and the removal of buildings therefrom, belonged to, and could only be recovered by, the executor. (2 R. S. 4th ed. 114.) And besides, they could not be sued for and recovered until after the plaintiffs had recovered possession of the land. A claim for such injuries cannot be united with a claim to recover the land. (18 Barb. 496.) A disseisee of land cannot maintain trespass quare clausum fregit for an injury done thereto, until he regains possession. (19 id. 560. 12 John. 183. 1 id. 511. 4 Cowen, 529. 8 Wend. 58. 19 id. 507.) The code (§ 67) allows a plaintiff to unite a claim to recover real property with a claim for damages for withholding the same, and the rents, issues and profits thereof. Under this section the plaintiffs were entitled to insert with the claim for the land the count for damages for withholding the same, and for the rents and profits. But this provision gives no new rights of action. (19 Barb. 560.) The plaintiffs were not therefore bound to elect, as between these causes of action, which they would go for. They could properly recover for both the land and the use thereof after the death of Mrs. Hotchkiss, but not for any damages which belonged exclusively to the executor, or which were only recoverable after a re-entry. As the damages were recovered in gross, — 614 — and embrace some amounts not recoverable in this action, in any event, even if it were prosecuted by Mr. Hotchkiss solely as executor, I think there should be a new trial. [Monroe General Term, March 3, 1862. Welles, Johnson and Smith, Justices.] Hew trial granted.