Emerson v. Goodwin

Williams, J. One abjection to this suit, is, that the lease is taken from a corporation ; and corporations are not within the statute. That a corporation is in law, a person,” there is no doubt: and that their conveyance may be as much within the mis-chiefs intended to be -guarded-against, is equally clear. If there is any difficulty, therefore, in punishing a corporation for the offence prohibited in this statute, it is of a character entirely technical, and cannot apply to the persons who have received a lease from such corporation. The statute no doubt was intended to operate upon both seller and purchaser ; but if a technical difficulty exists in the one ease, which must 'defeat that intention, there is no reason why we should give it such a construction as would prevent its operation where no such technical difficulty does exist. If therefore, a corporation could not be punished for selling, because it is a corporation, this is no reason why an individual who receives such conveyance, should not be punished, being both within the letter and the intent of the statute. This objection, therefore, was rightly overruled. Again, it is claimed, that the committee appointed in 1824, alter they had once leased this building, had no further pow~ ; and therefore, tlie lease of March 1830 being void, the plaintiff was in, as tenant by sufferance, under the society. The vote is general, appointing a committee to lease the [436] academy, at their discretion,for certain purposes, and with a particular exception. Here the building is to be at their conlroul, to lease at their discretion, to any person who may apply. The language is very general : the authority is very broad. This committee might, certainly, originally have leased for ten years ; and I see not why they may not make a lease for that time, by two distinct instruments and at two different times, as well as by one instrument. I think, therefore, tiie plaintiff was rightfully in possession under this lease, as a lessee of the first school society, This brings us to another objection : that as the plaintiff was tenant of the society, claiming under them, they were never ousted of the possession ; in support of which, cases of leases ot ecclesiastical persons in England, have been cited, These cases, however, do not seem to me to have been decided with reference to this statute, but rather under what are called the enabling and restraining statutes of Hen. VIII, and Efe. Other principles, however, have been alluded to, which, I annot but think, are decisive of this case, Our statute is highly penal, making void conveyances and imposing forfeitures upon him who buys and upon him who sells land, when ousted of the possession. And it was very early held, in the construction of the English statute, that though the words might be,construed beneficially, according to the intent; yet that things which do not come within the words, should not be extended by equity. 1 Plowd. Com. 86. That principle is recognized, by this Court, in Leonard v. Bosworth, 4 Conn. Rep. 421. 423, 4. To determine, then, whether the lessee is liable, we must enquire whether the lessor was ousted of the possession. That the plaintiff was in possession, claiming a right of possession, when the defendant received his lease, cannot be denied. But the question recurs, was tl: ■ ¡society ousted ? The English statute of 32 Hen. VIII. avoids such deeds &c. unless the grantor, his ancestor &c. were in possession thereof, or of the reversion or remainder, or had taken the rents and profits for one year before. Under this statute it wmuld seem, that he who had the reversion or remainder, bait the same right to sell, as he who had the possession. 1 Plowd. Corn. 89. And it is said, that he in remainder., may get the [437] ! pretended right of any stranger, not only for that the particular estate and remainder are all one, but for that it is a means. | to extinguish the seeds of trouble and suits. Co. Litt. 369. If ¡ then, the reversioner may purchase not being in possession, ■: and of one not in possession, as seems to be implied, I see not why he may not sell; because as is said about the particular s estate and remainder, they are all one. The phraseology of our statute varies from that of the English statute ; but I think it apparent, that its provisions are substantially the same. It uses the term disseised or ousted of the possession. An ouster is a technical term, and means a wrong or injury that carries with it the amotion of possession. 3 Bla. Com. 167. And a disseisin ever implies a wrong, Co. Litt. 153. Has the plaintiff done this society any wrong or injury ? Has he disseised or ousted them of the possession ? Could they maintain an action of ejectment against him ? If, as the plaintiff claims, he entered and continued in possession under a lease from the society, he has done them no injury or wrong ¿ he has not disseised or ousted them: they can maintain no action against him for his acts. He is their tenant; and the possession of the tenant, is the possession of his landlord. The possession of the mortgagor is the possession of the mortgagee. In short, the possession of any one who properly holds under the legal proprietor, is the possession of such proprietor. Bryan v. Atwater, 5 Day 181. J88. Willison v. Watkins, 1 Pet. ü. S. Rep. 43.49. If it be with the consent, express or implied, of the legal owner, it is in law his possession, and is not adverse ; and it can never be adverse, when it can be considered as the constructive possession of the real Owner. That the possession of the plaintiff could not have made void a conveyance of the fee by the society, has not been claimed. But if the plaintiff was in, and had ousted or disseised the society, every conveyance they could make, would be void. - It is said in this case, that the lease to the defendant, is a lease intended to operate during the existence of the former lease, and is inconsistent with the rights of the plaintiff ; and that it is within all the mischiefs of the statute, — intending to vest a third person with the rights of the society to try the validity of the plaintiff ⅛ lease. If such was the intent of the lease to the defendant, I am not prepared to say, that it i* [438] not within the spirit of the act. But, as this is a penal statute, I do not feel authorized to extend it to cases not fairly included within it, though I may suppose they ought to have been. - If then, the plaintiff entered into possession, as tenant of the society, if he has ever since held as their tenant, and now: claims as suchi I cannot call his possession adverse, nor say that he has ousted or disseised the society. On the contrary, I feel bound to consider his entry as their entry, and his possession as their possession ; and of course, I cannot concur in that part of the charge, in which it is said, that if the plaintiff entered under the lease of March 1830, claiming the exclu-give right to possess, and denying the right of the society to enter, this was a sufficient ouster. On this ground, I must advise a new trial. The other Judges were of the same opinion. New trial to be granted.