Barton v. Learned

The opinion of the court was delivered by Bennett, J. The plaintiff seeks to be restored to the possession of the parcel of land, mentioned in his declaration; and though under the Revised Statutes of 1839, the action was to be brought before two justices of the peace, one of whom was to be a judge of the county court, yet in 1842, and 1850, the Legislature gave jurisdiction to a single magistrate. See Comp. Stat. of 1850, p. 307, 308. [197] The objection, then, that there was no jurisdiction, is without foundation. The statute of 1850, in substance enacts, that when a lessee of any lands or tenements, whether the lease be in writing or by parol, or when any person holding under such lease, shall hold pos- • session without law or right, after the determination of the lease by its own limitation, or after the breach of any stipulation contained in the lease, by the lessee, or any person holding under him, the person entitled to possession of the premises may be restored to the possession thereof, in the manner provided by the act of 1842, and the act of that year fully prescribes the course of proceeding. The action is given, not only against the lessee, who holds over after the lease is determined; but also against any person holding under him, and it is given to the person who is entitled to possession. In August, 1851, the defendant conveyed the premises in question to one Charles Bowker, and at the same time became a tenant either at will, or sufferance, to said Bowker, by a, parol agreement, and he was to surrender them up, at any time, when requested, either to Bowker or his grantee, and this without any length of notice. Within a year from the time of the agreement between the defendant and Bowker, the latter deeded to one Paige, and Paige to the plaintiff; and the case shows that within the year, the three, Bowker, Paige and the plaintiff, all requested the defendant to surrender up the premises to the plaintiff, and that he refused so to do, and set up an adverse possession in himself. The defendant’s right as lessee was clearly determined, and he would be estopped from setting up an adverse right to Bowker, or his grantee, and in the language of the statute, he held over without law or right. The great question, which is made, is, as to the right of the present plaintiff, to maintain the action, and we think he may. Neither Bowker nor Paige have aright to the possession. The plaintiff is the only one in interest, and it would be strange if the statute should have required the suit to have been brought in the name of Bowker, and he recover in trust for the plaintiff. Whether we regard the defendant as a tenant at will, or sufferance, under Bowker, it is immaterial. In either event his interest had been determined; and after this he resists the claims of the plaintiff at his peril. If we held that the defendant’s lease, [198] being at will, was put an end to by the giving of the deed from Bowker to Paige, it would not defeat this action. The statute does not require that the relation of landlord and tenant should subsist between the parties to the suit when the action is brought. It is enough, if the defendant’s possession commenced as a lessee, and he holds over without right, and the party sueing has the right of possession, as derived from the lessor. The statute not only gives the action against the lessee, but also against any person holding under him, and it is given to the person entitled to possession. It is no objection to this statute action, that the plaintiff’s title may come in question. It may be a litigated point, where the action is not against the lessee, whether the defendant ever became his tenant; yet the action is as.well given against the tenant of the lessee, as the lessee himself. In New York under a similar statute, it was held, that the purchaser of the premises from the landlord might have this summary remedy. Birdsall v. Phillips, 17 Wend. 473; and the case of Hildreth v. Conant, 10 Met. 298, is much in point. For the purpose of disposing of this bill of exceptions, we are to take it, that everything was proved which the plaintiff offered to prove. The result then must be that the judgment of the County Court is reversed, and the case remanded.