Bradt v. Church

LANDON, J.: We do not think this judgment can be upheld. It was admitted on the trial that the land described in the complaint was, at the date of the lease, from Stephen Yan Rensselaer to Peter Snyder, subject to the conditions thereof. This lease was dated in 1791. It was the usual manorial lease in fee, and, as found by the referee, of the kind described in the cases of Van Rensselaer v. Hays and Van Rensselaer v. Ball (reported in 19 N. Y., 68, 100). It also appeared that before the commencement of this action, and before this defendant entered into possession of the land, the said lease and -all the interest in and title to the land of the said Yan Reitsselaer had been duly transferred to and vested in the defendant, and that his- entry into possession of said land was peaceful; also that no rent had been paid upon the said lease for many years. The plaintiff’s title is as follows : St. John was in possession of the land from 1850 to 1863. In 1863, St. John, by quit-claim deed, conveyed the land to the plaintiff. Plaintiff was in possession until 1881, when his son, Jeremiah Bradt, went into possession as his tenant. While Jeremiah was thus in possession, this defendant brought an action against him to recover possession of the land for non-payment of rent under the said original lease, and upon Jeremiah’s default, recovered judgment for the possession, and execution being issued upon this judgment, the sheriff, by virtue thereof, delivered the possession of the land to this defendant. This plaintiff was not a party to that action. It does not affirmatively appear how St. John originally came to enter into possession, and it does not appear that either he or the plaintiff ever paid any rent or in any way recognized said lease. The admission of the parties shows that the lands were subject to [264] the lease- in 1794. From that admission we know the lease was then operative, and that the relation of landlord and tenant existed between Van Rensselaer and Snyder. The lands being once subject to the lease, and the lease being, by its terms, perpetual, the presumption is they still continue subject. (Tompkins v. Snow, 63 Barb., 525; Lyon v. Adde, Id., 89; Lyon v. Odell, 65 N. Y., 28.) The lease being perpetual, the presumption results that every one entering into possession enters under the lease. (Whiting v. Edmunds, 94 N. Y., 309; Crooked Lake Nav. Co. v. Keuka Nav. Co., 37 Hun, 9; Jackson v. Davis, 5 Cow., 123.) Hence St. John, the grantor of the plaintiff, unless he can show the contrary, is presumed to have entered under this lease. He may have paid no rent for twenty-three years, but the only effect of this would be to limit his landlord’s recovery of rent to the twenty years immediately before action brought. (Central Bank v. Heydorn, 48 N. Y., 260; Lyon v. Odell, 65 id., 28.) No presumption arises that the covenant to pay rent has been released or discharged. (Id.) For the same reasons the presumption exists that the plaintiff, notwithstanding his quit-claim deed from St. John, entered subject to the lease. 'Whether he knew of the existence of the lease is of no consequence. His ignorance could not extinguish it. (Whiting v. Edmunds, supra.) There is no evidence that the lease has been extinguished. The plaintiff, however, asserts title by adverse possession. This claim must fail because there is no proof that ■ an adverse possession was ever started. Once in as tenant, the tenant cannot, without surrendering to his landlord, and then entering under a hostile claim, start an adverse possession. (Jackson v. Spear, 7 Wend., 401; Kenada v. Gardner, 3 Barb., 589; Hill v. Hill, 4 id., 419.) He must bring home to his landlord knowledge of his adverse claim. (Whiting v. Edmunds, supra.) The Code, section 373, declares the possession of the tenant to be the possession of the landlord, until expiration of twenty years after the termination of the tenancy, not after the non-payment of rent, not after the giving a deed consistent with the lease. No covenants are implied in a deed. (1 R. S., 738, § 140.) A quit-claim, therefore, implies no hostility to the landlord’s title. As no adverse possession was ever started, none has ever ripened into title. The judgment-roll of Church v. Jeremiah Bradt was competent [265] evidence, not as an adjudication affecting the plaintiff, but as tending to show that Church came peacefully into possession of the promises, claiming under his lease. (2 R. S., 507, § 1.) Its admissibility rests upon the same ground as the deed from St. John to the plaintiff. The defendant was no party to that deed, but it was competent evidence to show what claim of title the plaintiff had. The rent being in arrear and the lease in force, the defendant, as landlord, had the legal right to recover possession against any one withholding possession from him. Whether the plaintiff was assignee of the whole estate or term of the original tenant is not material. The action is not to recover upon a covenant to pay rent. If the plaintiff did not withhold the possession, the defendant had' no occasion for contention with him, and, therefore, could peaceably enter into possession. As the defendant took possession under a judgment his possession was lawful. (Jackson v. Rightmyre, 16 Johns., 314, 325.) The defendant being peaceably and apparently lawfully in possession, the plaintiff to eject him must show his own titje, and upon comparison of titles, the better title. The plaintiff’s title is subject to the lease, and as he does not by his complaint ask possession under the lease, but in hostility to it, he has not shown the better title. The plaintiff urges that the claim under the lease is stale, and therefore should be rejected. If the lease is perpetual, it is presumed to last as -long as the land does, unless shown to be extinguished. The plaintiff, however, contends that under the lease the title to the premises is in him, and, though the premises were vacant, the rent in arrear, and the landlord peacefully entered, yet the plaintiff’s title under the lease cannot, thus be forfeited, and can only be forfeited by judgment in ejectment. He cites Allen v. Brown (5 Lans., 280), and Jackson v. Elsworth (20 Johns., 180). These were actions in which this doctrine was held in favor of rights asserted under the lease, not in hostility to it. If in this action the plaintiff had recovered judgment awarding him possession under the lease, the cases cited would tend to support such a judgment. But the judgment recovered is hostile to the lease, and if permitted to stand, forever bars the defendant of all rights under it. (Code, § 1524.) The judgment must be reversed. If upon a new trial the ' [266] plaintiff elects to recognize the lease, an amendment of the complaint upon just terms may be open to him. Judgment reversed, new trial granted, costs to abide event, reference discharged. Bocees, J., concurred.