Newman v. Sanders

The opinion of the court was delivered by Parker, J. This is a suit by the remainderman against the executor of a life tenant for permissive waste suffered by the life tenant during tifie running of the life estate. The motion is tantamount to a demurrer under the former practice. The two grounds argued are—first, that the complaint is not definite, and second, that the action has abated by reason of the death of the life tenant and does not survive againsi; the executor. Wo see nothing in the first ground. The indefiniteness objected to is simply that the complaint fails to state whether the action is brought as at common law, or upon the statute of waste. The courts notice public statutes e:r-officio without their being pleaded. 1 Chit. Pl. 246. If therefore the complaint states a cause of action either at common law or by statute, it is not vulnerable to a demurrer. This brings ns to the second ground, which brings up the real point. It is urged, and correctly, that the statute of waste (Comp. Stat., p. 5789) gives no right of relief against the personal representative of the deceased committer of the waste. There is a good deal of old learning upon the question whether an action will lie at all under the statute for permissive waste, hut in this state this has been settled by the decision of Chief Justice Pepue in the case of Moore v. Townsend, 33 N. J. L. 402, where he goes into the history of the decisions and holds that even under the statute of Marlbridge there was a remedy for permissive as well as for active waste, and then proceeds to call attention to the wording of our statute, which does not exactly copy the statute of Marlbridge, and if anything enlarges it. That statute is section 2 of the act concerning waste and dates from the time of Paterson (see Pat. Rev., p. 179). The words used are “make or suffer any waste.”' This statute has been reenacted from time to time in our revisions and now appears in the Comp. Stat., p. 5790. It is held in the opinion in the Townsend ease [122] that the action is'an action on the case, and such is evidently the present action. It plainly lies against a living person. As to whether such an action survives against the personal representative of a deceased person, we should apply the reasoning of the opinion in the recent case of Hackensack Trust Company against Yandenberg in 88 N. J. L. 518. That was a case where the statute of 1848 gave a right of action for injury causing death, which right of action did not previously exist. We held there, that by reason of the fact that the act of 1855 (Comp. Stat., p. 2260, § 5), relating to the survival of actions, came after the act of 1848, it was to be inferred that the legislature had that act in mind in passing the act of 1855 and meant the survival to apply to an action for injury causing death. The same principle applies to the statutory action of waste, and we consider that the Hackensack Trust Company case is authority for the proposition that section 2 of the Waste act, which gives an action generally for damages for waste either done or suffered created a cause of action that survives by reason of the Executors and Administrators act of 1855. We think, therefore, that the motion to strike out the complaint must fail.