Evertson v. Sutton

By the Court, Savage, Ch. J. The statute under which these proceedings were had provides that where any tenant or lessee at will or at sufferance, or for part of a year, or one or more years, or from year to year, shall hold over after the expiration of his term, it shall be lawful for the landlord or [284] lessor to make oath in writing of such holding over without permission ; and thereupon to apply to a judge who shall issue a summons, and take other proceedings pointed out in the statufe, ending in a warrant to deliver possession to the ° . , . , landlord or lessor. This statute is applicable between landlord and tenant only. No such relation existed between the plaintiff and Jerome, nor between Jerome and Terry. The whole proceedings therefore from beginning to end, have been without jurisdiction and void. The contract between the plaintiff and Jerome was set out in the affidavit upon which the proceedings were had, putting the plaintiff in possession. It is a mere executory contract by which Jerome is considered the owner of the property, and he agrees to give possession at a certain day, and the use of the property he agrees shall be equivalent to the interest accumulating on the debt he owed the plaintiff. Now so far as any analogy exists between this agreement and a lease, it goes to shew that the plaintiff was to set off the use of the property (or the rent) against the interest of his mortgages. Jerome, in this transaction, is most like a landlord and the plaintiff the tenant; but, in truth, there is no pretence for any thing like a tenancy. The judge might as well have undertaken to enforce any agreement for the purchase and sale of real estate. It is true, indeed, that for some purposes the mortgagor is considered the tenant to the mortgagee, and the vendor of land who continues in possession after the sale, under an agreement to deliver possession on a certain day, is tenant to the purchaser. 4 Johns. R. 150. So also the same relation exists in other cases, 7 Cowen, 323, 6; but the statute of 1820 was clearly designed to afford a speedy remedy where the conventional relation of landlord and tenant existed, and not where that relation is created by operation of law. The legislature never intended that the mortgagee should have a right to proceed under this statute to obtain possession of the mortgaged premises after forfeiture. If I am correct in this construction of the statute, then, as before observed, the proceedings on the part of the plaintiff, whereby he obtained possession, were coram non judice and void ; but the plaintiff was in possession by color of law, and [285] he was mortgagee in possession. As between mortgagor and mortgagee, the former is considered the owner, 11 Johns. R. 524, and may maintain trespass for cutting timber, and of course for any entry without leave, until the possession shall be recovered in an action of ejectment. Although, therefore, the plaintiff was in possession under color of legal proceedings, yet the judge under whose warrant he obtained possession having no jurisdiction, the plaintiff’s entry was unlawful and conferred no greater rights than if he had taken possession without the judge’s warrant; and in such case, independently of the contract of July, 1826, trespass might have been sustained against him by Jerome. According to the cases of Hyatt v. Wood, 4 Johns. R. 150, and Runyan v. Mersereau, 11 Johns. R. 535, Jerome, the mortgagor, being the owner, might have taken possession forcibly; and, though he might have been punishable for a breach of the peace on behalf of the public, yet no civil action could have been sustained; for “it would,”in the language of Spencer, justice, 4 Johns. R. 158, “be an absurdity to say that he must also be responsible in damages, as for an injury to the person who has no right, but is himself a wrong doer, in consequence of his illegal entry. But the defendant did not act as the agent of Jerome, but attempts to justify under the statute ; he must, therefore, bring himself within its provisions, or he can derive no benefit from the fact of his professing to act under it. Courts and officers of limited jurisdiction are bound to shew that they have jurisdiction in the case; and then their subsequent proceedings are treated with liberality. A judge has jurisdiction to act in cases provided for by this statute; but he cannot legally take cognizance of any complaint until an affidavit is presented shewing the relation of landlord and tenant, and a refusal on the part of the latter to deliver possession at the expiration of his term, or the non-payment of the rent due, and that there is no remedy by distress. So a justice of the peace has jurisdiction to issue an attachment in certain cases; but if he issues an attachment without the proof and security required by law, he is a trespasser. So is the judge who issues his warrant to remove the tenant, without first having the requisite affidavit [286] presented to him. If, therefore, the plaintiff had a sufficient possession, the defendant has shewn no justification. Whatever presumptions might be.indulged under other circumstances, we cannot, in this case, presume that a sufficient affidavit was presented, when we are told by the attorney who drafted it that it was insufficient, and when it appears that if it was sufficient in point of form, it must have been false. I am of opinion that the judge at the circuit was correct in rejecting the defendant’s minutes; and that the defendant must shew affirmatively facts to give him jurisdiction. But (lie most difficult question, in my mind, is whether the plaintiffj having obtained possession wrongfully, can maintain trespass. I should have no hesitation in deciding this question in the negative, as against Jerome, were it not for his agreement to deliver possession before any proceedings were commenced. By the contract of July, 1826, the plaintiff was entitled to'possession in 45 days; by getting possession, he obtained no more than he was entitled to; he was put. in no belter situation than he ought to have been; and I very much doubt whether Jerome would have been permitted to maintain trespass against, him for obtaining that which he (Jerome) was bound to have delivered voluntarily. Independent of that agreement, I have no doubt that the plaintiff would have been a trespasser, and that Jerome might have maintained an action against him. The only obstacle is, (bat the plaintiff obtained illegally that to which he was legally entitled by suit at law. At any rate, it seems to rne that this possession was sufficient, against all the world except Jerome; the defendant does not justify under Jerome; blit places his justification upon aground which is altogether untenable. If the jury thought there was a connivance between Jerome and the justice, the damages were not excessive. On the whole, I am of opinion that a new trial should be denied.