Jackson ex dem. Sherrill v. Brush

Yates, J. A question is made with regal’d to the attornment of Moses Armstrong, the tenant in possession, to the defendant. It is objected, that this attornment is void; and that Brush being made defendant, as landlord, by consent, the lessor is entitled to the possession as against him, in the same manner as he would be against Armstrong, as his tenant. The facts disclosed by the case on this subject abundantly show, that the lessor of the plaintiff ought not to recover on that ground. If Armstrong had attorned without the assent of Livingston and Sleight, the plaintiff’s recovery could not be avoided. The attornment would have been void under the statute, and Brush having been made defendant, as landlord, by the lessor’s consent, the settled principle between landlord and tenant, in relation to attornment, must have controlled the case. The fact, however, is otherwise; it not only appears that it was done with their knowledge and acquiescence, but, from Livingston’s testimony, it would seem they assented to it. He states, that he never consented Armstrong should pay rent to the defendant, or should become his tenant, except on the supposition that Brush was to purchase of him or Sleight. His supposition does not alter the fact; (if those were his impressions at the time) he ought to have consummated the sale before he gave his assent to the change of tenancy. Sleight’s claiming the rent, after the defendant’s purchase at the sheriff’s sale, up to a specified period, shows an acquiescence, which amounts to an assent on his part, presenting a case clearly excepted by the statute, (1 N. R. L. 443.) and within its provisions, being an attornment with the privity and consent of the landlord. At all events, it is sufficient to prevent a recovery on the ground of tenancy. This is, also, conclusive against the lessor’s claim under the quit-claim deed of the 13th September, 1819, from Livingston to him, because, the premises were held adversely by the defendant, at the time, so [11] that nothing could pass by it. The lessor’s right to recover, therefore, depends altogether on the validity of the deed from Cornelius Brown to Livingston and Sleight, given in March, 1817. It cannot be questioned but that Cornelius Brown was largely indebted at the date of the above conveyance. Livingston himself states, that he heard some of his creditors were pressing at the time. The record of one of the judgments under which the defendant purchased, was filed the 9th of July, 1817, and the suit commenced as of the preceding April term. This was almost immediately subsequent to the conveyance by Brown. The circumstances that the grantees were brothers-in-law to the grantor, and that Sleight, one of them, does not pretend to have had any demand against him, at any time, and that they had possessed the premises for near two years, without doing any thing, throw a cloud over the transaction, and show its true character ; and the explanation given by Livingston, is not sufficient to change it. If this deed had been given to Livingston alone, to secure the alleged debt of 300 dollars, and the existence of that debt at its date had been shown, it would present a different case; but Sleight, who, according to Livingston’s testimony, had no demand against Brown, is made a co-grantee, and it cannot be pretended that an existing debt, due Livingston at the date of the deed, has been shown. The period of settlement between them appears, by the date of the note given for the alleged balance, to be in April, 1818, long subsequent to the docketting of one of the judgments under which the defendant claims title to part of the premises, and when near two years’ rent had been received, which, if specially accounted for, we must suppose would have been sufficient to pay off the amount stated to have been due at the date of the deed. No particular statement of the accomits, as adjusted at that time, appears; Livingston-only declares that the note was given for 673 dollars and 66 cents, the amount of a balance due him, partly for a debt before the giving of the deed, and partly for an account accrued subsequently. From the facts and circumstances disclosed in the case, it seems manifest that the conveyance [12] from Brown to Livingston and Sleight was without consideration, and made with an intent to hinder and delay ereditors, and, of course, void by the statute of frauds. The lessor of the plaintiff, then, if this deed is inoperative and void, can take nothing by the sheriff’s deed, on the o ^ 7 judgments and executions against Livingston; nor can the deed be deemed operative, as a mortgage, because no existing debt satisfactorily appears, at the time it was given. .Judgment must be entered for the defendants.