Adams v. French

2 N.H. 387

• Court: Superior Court of New Hampshire
• Decided: May 15, 1821
• Status: Published

Opinion

Woodbury, J.

The pleadings in this ease put nothing m issue but (he assignment to the defendant. The rest of the declaration is therefore admitted; and this plea in bar is not supported, if the evidence was competent to show any assignment to the defendant under the original lessees. It need not have been directly from those lessees; for any assignment under them, however numerous the intermediate dries» would impose on the defendant the same legal obligations arid would in effect be an assignment from them.

It is admitted by the pleadings, that in A. B* 1802⅝ the premises were demised to W. & W. for 99 years, and, at the trial, it was, also, admitted, that in A. 0.1812, they had ceased to occupy them, arid thereupon the defendant entered and since executed sundry sub-leasés. Only & small part ohifae whole terim had then 'expired; and, without the aid of the evidence rejected, it would deserve much consideration whether the defendant ought not to be charged on these admissions.

It is true, that this action of covenant does not lie without some privity of contract; whiié 'debt or á distress lies ©n mere privity of estate. Shep. 179.—1 Ch. Pl. 36, and auth. there cited.— 17 John. 241, auth. cited.—1 Brod. & Bin., Williams vs. Bosanquet. But the possession of the defendant, soon after the departure,of the original lessees, and his exercise of such acts, in sub-leasing, as would be -natural in an assignee, fur» nish presumptive evidence of an actual assignment. Peak. Ev. 267.-2 Bl. R. 1228.-5 Es. C. 4, Doe vs. Rickarby.

The evidence rejected goes far to strengthen this presumption ; and, for aught we see, it is competent as acts and confessions of the defendant and of him, under whom the-defendant entered, made and done previous to the entry. 1 Es. C. 458, Walker vs. Broadstock.— 2 D. & E. 53, Davies vs Pierce et al.—1 John, 343.—4 ditto 234, Jackson vs. Bond.—3 Wheat. 505, semb. The last judgment and extent offered in evidence were in favor of the defendant -himself,-arid in the extent he expressly admits, that he entered and received possession of the premises under Jonathan French. It is true that the extent purported to set off a fee ⅛ the tend ; but we have already ruled that notwithstanding a description of an estate larger than was owned, all which a debtor owns in land will pass ; and consequently the extent is not void for a misdescription of the quantity of his mterest.(i) It has often been ruled, too, that under our statute on levies and extents, any interest in land, though less than a freehold, need not be sold at auction, but maybe set off by appraisers;

* and consequently the extent is not void, because the interest which actually passed was less than a freehold. The defendant, then, by his extent and entry, makes a virtual admission, that he enters as the grantee of Jonathan French, «¡aiming all his interest in the land ; and as Jonathan French by. the prior judgment in favor of the plaintiff against him, admitted that he owned only an estate for years in the land, the defendant obtained only such an estate. Said Jonathan being the person under whom the defendant entered, the defendant is bound by his admissions, as to the quantity of his estate,(2) and indeed the pleadings in this case make similar admissions, by not denying that the fee is in the plaintiff in trust and that only an estate for years had been carved out of it. But by the judgment against Jonathan, he admitted not only that he owned a mere estate for years, but that he was the assignee of that estate under the original lessees ; and the defendant, being as before shown the grantee or assignee of Jonathan, must, on the whole circumstances of the case, be deemed, not a mere trespasser or under lessee, but a person, who holds the whole residue of the term that was carved out to the original lessees. Bac. Ab. Covt. E. R.—Shep. 179.—5 Co. 16, Spencer's case.—Doug. 186, 187, 455.—1 Ch. Pl. 36.—1 B. & P. 21.—1 East. 502.—17 John. 66, Jackson vs. Harrison. Again, though he holds the estate from his debt- or, in irnilum, by an extent; yet, having entered, he is chargeable ½ this form of action. Bac. Ab. Covt. E.-1 Barn, and Ald. 304, Harris vs. Stevens et al.

(1) Coos Bank ^lt^'oul's' (2) vide authorttles ante'

Let the verdict be set aside and a general one entered for the plaintiff, for the amount of rent from A. D. 1812, to the. commencement of the action.

17 Mass. Rep. 440, Montague vs. Gay.-19 John. 73, Futnam vs. Westcott.