Minke's Lessee v. McNamee

Alvey, J., delivered the opinion of the Court. The right of the alleged co-parceners to appear and take upon themselves the defence of the cause to the extent of certain undivided interests in the premises sued for, being resisted, as appears from the record, the question of their right so to appear is properly presented, although there was no bill of exception taken by the plaintiff. The proceeding by which such parties were admitted all fully appear of record, and is in no manner dependent upon extrinsic matter, such as would require a bill of exception to introduce, to enable this Court to take cognizance of the question, and to fully understand its nature and character. And being properly presented, the question is, were these parties entitled to be admitted defendants, under the facts of the case ? To say nothing of the very irregular character of the proceeding had upon the application of these parties to become defendants, we think their application should have been de [298] nied. They could have no right to. appear except as landlords, and if they did not seek to come in, in that character, they should have been excluded altogether. It appears that at common law, landlords were entitled to be made defendants in ejectment, either alone or jointly with the tenant in possession. But in the case of Goodright vs. Hart, 2 Str., 830, the Court of King’s Bench having held that the landlord could only be let in to defend with his tenant, and that his right to appear depended upon the tenant’s . consent, it became necessary to regulate the mode of proceeding,- in such cases, by statute, which was done by Statute 11 Geo., II, ch. 19. That statute is in force in this State, and, by the 13th section thereof, it is provided, that “ It shall and may be lawful for the Court in which an ejectment is brought, to suffer the landlord, or landlords, to make him, her or themselves, defendant, or defendants, by joining with the tenant or tenants, to whom the declaration in ejectment shall be delivered, in case he or they shall appear; but in case such tenant or tenants shall refuse or neglect to appear, judgment shall be signed against the casual ejector for want of such appearance, but if the landlord or landlords of any part of the lands, tenements or hereditaments, for which such ejectment was brought, shall desire to appear by himself or themselves, and consent to enter into the like ‘rule, that by the course of the Court, the tenant in possession, in case he or she had appeared, ought to have done, then the Court where such ejectment shall be brought, shall and may permit such landlord or landlords so to do, and order a stay of execution upon such judgment against the casual ejector, until they shall make further order therein.” It has frequently been a question as to the meaning of the word landlord, as employed in the Act, and as to what interest in the disputed premises will entitle a party to appear and resist recovery. In the case of Fairclaim dem. Fowler vs. Shawtitle, 3 Burr., 1297, it was said that there are two matters to be considered in the construction of the statute; first, [299] whether the term landlord ought not, as to this purpose, to extend to every person whose title is connected to, and consistent with the possession of the occupier, and which is liable to be divested or disturbed, by any claim adverse to such possession ; as in the case of remainders or reversions expectant upon particular estate; secondly, Avhether it does not extend, as between two persons claiming to be landlords de jure, in right of representation to a landlord de fado, so as to prevent either from recovering by collusion with the occupier, without a fair trial with the other. And, in that case, it was decided that where a person claims in opposition to the title of the tenant, he ought not to be considered a landlord within the meaning of the statute. And in the more recent case of Lovelock dem. Norris vs. Doncaster, 3 T. Rep., 783, there was a rule nisi to permit certain devisees to appear and defend in ejectment, instead of the tenant upon whom service was made. But the rule was discharged, because, as Lord KeNYON, C. J., observed, the very question in dispute betwen the adverse party and the party applying to be made defendant, was, whether the latter was entitled to be landlord or not; and therefore the Court was not authorized to extend the provision of the statute to such case. So here, the main question, as between the present plaintiff and the parties applying to be admitted to defend, is, whether the possession of the tenant, whose interest has been sold, has been adverse and exclusive, and such as will give title to the entire premises. The parties themselves do not apply to be admitted upon the ground that they were in fact the landlords of the tenant in possession, but that they were co-parceners with the tenant, and entitled to undivided shares in the premises. They do not show that they are interested in the result of the suit; and, without making it so to appear, they have no right to be admitted defendants. Doe d. Pearson vs. Roe, 6 Bing., 613. Indeed, from the very nature of the title acquired by the lessor of the plaintiff, and upon which recovery is sought, these parties cannot in reality be interested in the result. For [300] it was only the right and estate of the insolvent debtor in the premises that was sold by the trustee to the lessor of the plaintiff and to that extent can he recover, and nothing more. A judgment against the insolvent debtor, the tenant in possession, though it be general for the whole premises, cannot operate to divest or disturb any right that these alleged co-parceners may have in the property. The judgment would be that the plaintiff recover his term yet to come and unexpired, in the land and tenements with the appurtenances, and the only effect of such judgment is, to put the plaintiff in possession of the premises, according to his right and title therein, and, if he have no title, he takes possession at his peril', so far as third parties are concerned. Taylor d. Atkins vs. Horde, 1 Burr., 114. All that could be claimed under judgment in this case, founded on the title proven, would be the right and title of the insolvent debtor, whatever that may be, and if he was really co-parcener with the parties applying to be made defendants, the plaintiff will become tenant in common with them, according to the interests that they may respectively hold in the premises. Such being the result, we cannot perceive how these alleged co-parceners can be interested in making defence to this action. We think, therefore, the Court below was' clearly in error in allowing them to be made defendants. And as the cause was tried on the special and peculiar plea of these parties, the judgment must be reversed, and the case remanded for new trial. We do not wish, however, to be understood as intimating that it will not be competent to the tenant in possession, on the plea of not guilty, to confine the plaintiff’s recovery to the particular interest purchased by him. This may be done by showing that other parties hold undivided interests in the premises, and what those interests are; and, in such case, the verdict and judgment should be for the particular undivided portion to which the plaintiff may be entitled. This is proper and necessary for the protection of the tenant, for the recovery, if for the entire premises, would be an estoppel [301] upon him in an action for mesne profits, if properly pleaded or relied on; and it would not be just that the plan tiff should recover damages in respect of the whole estate, if he be entitled to an undivided portion only. (Decided 11th March, 1869.) Judgment reversed and procedendo awarded.