Foot v. Dickinson

Dewey, J. This is an action on the case in the nature of waste, brought against a tenant in dower who had, before the commission of the acts complained of, conveyed all her interes [612] to a third person by whose lessee the acts were done which con stitute the alleged waste ; and the question presented is, whether there be such a privity between the parties to the smt as will entitle the plaintiff to maintain this action. It seems quite clear, that if a tenant in dower assign her es tate to a third person who commits waste, the heir may maintain an action against her for such waste, on account of the privity between them. Com. Dig. Wast, C. 4. Bac. Ab. Waste, H. But if the tenant in dower assign her estate, and the heir also grant his reversion, either before or after the assignment, the grantee shall have waste against the assignee for waste afterwards committed; for the privity is gone. Co. Lit. 54 a. Com. Dig. & Bac. Ab. ubi sup. Bates v. Shraeder, 13 Johns. 263. Park, in his Treatise on Dower, pp. 359, 360, holds the same doctrine. The weight of these authorities, uniform as they are, would seem fully to settle the point against the right of an assignee of the heir to maintain the technical action of waste against a tenant in dower, who had also assigned her interest. It was suggested by the counsel for the plaintiff, that this principle is restricted to an action of waste, and ought not to be applied to an action on the case in the nature of waste. But we do not perceive any reason for the distinction, or that will authorize the sustaining of an action in the present form against a tenant in dower who has conveyed all her interest in the premises, if she would not be liable in an action of waste. Here the plaintiffs merely seek a compensation in damages ; and it seems more reasonable that they should resort to the actual wrong-doer, than to seek recompense from the tenant in dower, where the privity of estate is really destroyed. We think also, that upon the facts stated in the case, showing an actual occupation of the premises by the party holding under the conveyance from the tenant in dower, the evidence of such transfer by the tenant in dower was sufficient, although the deed was not recorded until after the institution of the present action Plaintiffs nonsuit.