Emerson v. Spicer

Mullin, J. The plaintiffs are entitled to judgment. The mother was guardian in socage, and as such had power to lease the lands of her wards until they became fourteen years of age, or another guardian was duly appointed. (3 R. S. 5th ed., p. 2, §§ 5, 6, 7.) On the appointment of another guardian, her power to lease, and all leases made by her of the wards’ lands, ceased. (Sylvester v. Ralston, 31 Barb. 286. 2 Kent’s Com. and note f. Roe v. Hodgson, 2 Wil. 129, 135. Field v. Schieffelin, 7 John. Ch. 150. Holmes v. Seely, 17 Wend. 75. Putnam v. Ritchie, 6 Paige, 399. Byrne v. Van Hoesen, 5 John. 66.) It follows that the lease of the mother was valid only until Clai’k was appointed guardian, and the defendant is not protected by it. Judgment is therefore ordered in favor of the plaintiffs, for the premises described in the complaint, in fee. Judgment being entered accordingly, the defendant appealed. [430] By the Court, Bacon, J. The mother of the infants was guardian in socage of her children, who were owners of the fee, and she had, as such, power to lease the lands until they should become of age. The lease under which the defendant claimed to hold was prima facie a valid instrument, but it was subject to be avoided either by the coming of age of the infants, or by the appointment of another guardian. The youngest child was not fourteen when this suit was commenced, but on the 12th of March, 1868, George Clark was duly appointed guardian of the infants, and as such, on that day, he demanded of the defendant a surrender of the premises, and on the 23d of April, 1868, commenced this suit. The statute (3 R. S. 5th ed., p. 2, § 7) provides that the rights and authority of every guardian in socage shall be superseded in all cases where a testamentary or other guardian shall have been appointed. The question is, whether by this appointment the lease was absolutely avoided, or was only voidable at the election of the guardian. In Roe v. Hodgson (2 Wil. 129) this question was discussed, without a definite decision; but on a subsequent day the court unanimously held that the lease was void. (Id. 135.) It is somewhat singular, but this precise question does not seem to have been passed upon in any case reported in this State, nor in this country, except in the case of Snook v. Sutton, (5 Hal. 133,) which holds that the lease of an infant’s lands, extending beyond the age of fourteen years, is voidable, provided the infant be then entitled to choose a guardian; or it may be avoided by the.guardian chosen by the infant. If not absolutely void by the supersedeas of the statute, the guardian is authorized to determine the lease; and that was done, in this case, by the notice, or at all events by the commencement of this suit, which was an express determination and notice that the lease was determined, and the [431] defendant was holding over without right. The defendant took his lease subject to this contingency, and was hound to leave upon the election of the guardian to terminate his tenancy. [Onondaga General Term, October 5, 1869. I think the judgment should be affirmed. . Judgment affirmed. Morgan, Bacon and Foster, Justices.]