Sharpe v. Kelley

By the Court, Beardsley, Ch. J. The defendant was not entitled to notice to quit. Having, while tenant to the plaintiff and the other owners of tliis lot, taken a deed for it in fee, from a stranger, and given back a mortgage for the purchase money, the defendant thereby disclaimed all right as a tenant, and cannot now be allowed to set up the want of notice to quit. As neither party desired to submit any question to the jury, we ought to assume the existence of any fact which the jury were authorized to find from the evidence before them. It may therefore be taken as established, for the evidence would well justify such a conclusion, that the defendant went into possession of this lot in 1835, as tenant to the plaintiff and the other owners. It does not appear for what term of time the lot was leased to him ; it may have been for one year, or more, or less, for there is no evidence on the point. If the fact, therefore, could be deemed material to this defence, we cannot say upon what appears in this bill of exceptions, that the leasehold term had expired by its own limitation, when the defendant assumed to purchase the lot of Nelson in 1840. The defendant then was tenant to the plaintiff when the pretended purchase was made, but his position as such tenant precluded and estopped him from setting up any title hostile to that of his landlord. He might have acquired a title consistent with the right asserted in making the demise to him, but he could not set up any thing in derogation of that demise. Although a tenant, he might have purchased at the corporation sale, had it been made after the execution of the lease, and he also might have taken an assignment from a purchaser at such a sale. This would not have been acting in hostility to the title of his landlord, but in consistence with it; as much so as a purchase at sheriff’s sale, or directly from the landlord himself would have been. (Nellis v. Lathrop, 22 Wend. 121.) But having taken a lease from the plaintiff in 1835, and paid rent accordingly until 1840, the defendant could not be allowed to set up title derived from a stranger, or from the plaintiff himself prior to the lease of 1835. If the defendant could do this he would be taking ground wholly inconsistent with the title he himself [434] took from the plaintiff in 1835. (Phelan v. Kelly, 25 Wend. 392, and cases there referred to.) The judge was right in holding that the defendant could not set up the corporation sale of 1834, and title derived under it, to destroy the right which was conceded to exist in the plaintiff by becoming his tenant in 1835. If a tenant, during the period for which he has taken a lease, can in any case be allowed to set up an adverse possession by himself against his landlord, there was not such evidence given on the trial of this cause as to justify the jury in finding the existence of such a fact. It is true that the deed from Nelson to the defendant and the mortgage back, looked in that direction; but these may have been secret conveyances, and so have given no publicity whatever to an assertion of ownership. It should certainly appear that the possession, as held, and the possessory acts done by the party in possession, were hostile to the claim of title in any other person than the one setting up an adverse possession. It cannot be presumed that the possession was hostile ; that must be shown by evidence. As there was not evidence in this case to establish a hostile possession when the deeds of 1843 and 1844 were given to the plaintiff, they cannot be held void. The judge was correct in so holding, and a new trial should be denied. New trial denied.