Gray J.
The lands, for the recovery of the possession of which this action was brought, were covered by a Yan Rensselaer manorial, perpetual lease, made in 1794. These leases have been frequently the subject of judicial examination by the courts of this state, and by various decisions of this court the general principles affecting them are well settled. Their covenants and conditions are valid, and they are binding upon the heirs or assigns of the original grantee and available to and enforceable by the successors in interest of the original grantor. (See
Van Rensselaer
v.
Hays,
19 N. Y. 68;
Same
v.
Ball,
id. 100;
Same
v.
Slingerland,
26 id. 580;
Same
v.
Dennison,
35 id. 393;
Central Bank
v.
Heydorn,
48 id. 260.)
To the interest of Yan Rensselaer, the lessor in the lease-mentioned in this case, the defendant Church succeeded, and, in the year 1881, obtained possession of the lands in controversy, under execution issued upon a judgment, which awarded him their possession. The judgment was had in an action to recover possession of the real property for breach of condition, in the non-payment of the rent reserved in the lease.
Jeremiah Bradt, the defendant in that action, was the son of this plaintiff, and was in occupation and possession of the premises as tenant of his father. This plaintiff was not made a party to that action, and now seeks to maintain his right to eject Church, on the ground that the judgment in the other action was not binding upon him and that the fee of the premises was and is regularly in him.
Defendant Church’s action wasnot brought upon the covenant for the payment of rent; it was brought to repossess himself of the premises, under the right reserved in the original lease to re-enter for condition broken in the non-payment of rent. It is true that the judgment which he recovered was not conclusive on this plaintiff as to the averments of the complaint.
on which Church based his right of recovery; but being had against the person in actual occupation and possession of the premises, Church’s entry thereunder was lawful and enables him to defend his title and possession against the plaintiff’s claim. I am not aware of any rule of law which requires that in an action to recover the possession of lands, the plaintiff is compelled to join as parties defendants those not in occupation thereof. In this case the referee has found that plaintiff’s son was in possession as his tenant.
The Code of Civil Procedure (§ 1502) provides that in actions to recover the possession of real property, the occupant must be made defendant. Section 1503 provides that other parties having or claiming rights
may
be joined as defendants. The only effect, therefore,, of not joining as defendants other parties than those in occupation or possession of the premises, is simply to leave the questions raised in the action open to controversy, as to any others who may subsequently assert title or adverse rights. Where the land in controversy is occupied, no recovery can be had in an action •of ejectment for non-payment of rent, unless brought against •one who was the actual occupant when the action' was begun.
(Martin
v. Rector, 101 N. Y. 77.)
The suit brought by Church was simply a possessory action, and did not settle any right, except as to the possession of the land. It was, therefore, properly brought against Jeremiah Bradt, as occupant.
(Jackson v. Rightmyre,
16 Johns. 314,
326; Van, Buren
v. Cockburn, 14 Barb. 118;
Pulen
v.
Reynolds,
22 How. 353.) The judgment-roll in the suit, which was admitted in evidence, showed Church’s possession, as having re-entered under the lease.
In
Jackson
v.
Rightmyre (supra),
which was an action of ■ejectment, the chancellor held that as the defendant had acquired possession under the authority of a judgment at law, his entry was consequently a lawful one, and that it was not a subject for inquiry as to how it was obtained; whether “ from the want of title or want of attention in the opposite party.” . The chancellor quotes from the language of Lord
Mansfield in
Atkyns
v.
Horde
(1 Burr. 114.), that “ a judgment in ejectment Avas a recovery of the possession (not of the seizin or freehold) without prejudice to the
right
as it might afterward appear, even between the same parties.”
I think, therefore, we must conclude that this defendant having come lawfully and peacefully into possession of the premises in controversy, all there is left of this case is to determine whether the plaintiff originally entered into their possession subject to the Yan Rensselaer lease, or by a good title to the fee thereof. We shall have to determine whether there was such adverse possession as, by the lapse of years, had ripened into a good title in plaintiff. Plaintiff claims title under a deed remising, releasing and quit-claiming the premises to liim, made in 1863 ; Avith prior possession by the grantors from 1850. 3STo proof was given as to the source of title of his grantors. On the trial it was admitted by the parties that the premises were subject to the original lease of Yan Rensselaer to Snyder, at the date of said lease.
That lease being perpetual, under well-settled rules of law, every one entering into possession of the demised premises is presumed to have entered under the lease, and that presumption can only be rebutted successfully by sufficient proof of an adverse possession at some time, in hostility to the landlord’s title. Where the relation of landlord and tenant is once established, as it was by the concession of the parties here, it attaches to all who may succeed to the possession under the tenant, however remotely. In
Jackson
v.
Harson (7
Cow. 323-325), Woodworth, J., discusses and asserts this doctrine. In the entire absence of any proof to the contrary, the occupation by this plaintiff’s grantors will be controlled by this presumption and they Avill be deemed to have entered as tenants under the lease.
In
Whiting
v.
Edmunds
(94 N. Y. 309), it was held that “where the relation of landlord and tenant has been once established, the possession of the latter and that of his grantees and assignees is the possession of the landlord, and riot hostile or adverse.
(Jackson
v. Davis, 5 Cow. 129 ;
Sands
v. Hughes.
53 N. Y. 293.) And this is true, even where the grantee has taken a deed of the fee in ignorance of the fact that his grantor stood in the relation of a tenant; the latter denying any such relation.
(Jackson
v.
Scissam,
3 Johns. 499.) ” And speaking of this presumption that the possession of the tenant continues always in subordination to the title of the landlord, Finch, J., continues:
“
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Gray J.
The lands, for the recovery of the possession of which this action was brought, were covered by a Yan Rensselaer manorial, perpetual lease, made in 1794. These leases have been frequently the subject of judicial examination by the courts of this state, and by various decisions of this court the general principles affecting them are well settled. Their covenants and conditions are valid, and they are binding upon the heirs or assigns of the original grantee and available to and enforceable by the successors in interest of the original grantor. (See
Van Rensselaer
v.
Hays,
19 N. Y. 68;
Same
v.
Ball,
id. 100;
Same
v.
Slingerland,
26 id. 580;
Same
v.
Dennison,
35 id. 393;
Central Bank
v.
Heydorn,
48 id. 260.)
To the interest of Yan Rensselaer, the lessor in the lease-mentioned in this case, the defendant Church succeeded, and, in the year 1881, obtained possession of the lands in controversy, under execution issued upon a judgment, which awarded him their possession. The judgment was had in an action to recover possession of the real property for breach of condition, in the non-payment of the rent reserved in the lease.
Jeremiah Bradt, the defendant in that action, was the son of this plaintiff, and was in occupation and possession of the premises as tenant of his father. This plaintiff was not made a party to that action, and now seeks to maintain his right to eject Church, on the ground that the judgment in the other action was not binding upon him and that the fee of the premises was and is regularly in him.
Defendant Church’s action wasnot brought upon the covenant for the payment of rent; it was brought to repossess himself of the premises, under the right reserved in the original lease to re-enter for condition broken in the non-payment of rent. It is true that the judgment which he recovered was not conclusive on this plaintiff as to the averments of the complaint.
on which Church based his right of recovery; but being had against the person in actual occupation and possession of the premises, Church’s entry thereunder was lawful and enables him to defend his title and possession against the plaintiff’s claim. I am not aware of any rule of law which requires that in an action to recover the possession of lands, the plaintiff is compelled to join as parties defendants those not in occupation thereof. In this case the referee has found that plaintiff’s son was in possession as his tenant.
The Code of Civil Procedure (§ 1502) provides that in actions to recover the possession of real property, the occupant must be made defendant. Section 1503 provides that other parties having or claiming rights
may
be joined as defendants. The only effect, therefore,, of not joining as defendants other parties than those in occupation or possession of the premises, is simply to leave the questions raised in the action open to controversy, as to any others who may subsequently assert title or adverse rights. Where the land in controversy is occupied, no recovery can be had in an action •of ejectment for non-payment of rent, unless brought against •one who was the actual occupant when the action' was begun.
(Martin
v. Rector, 101 N. Y. 77.)
The suit brought by Church was simply a possessory action, and did not settle any right, except as to the possession of the land. It was, therefore, properly brought against Jeremiah Bradt, as occupant.
(Jackson v. Rightmyre,
16 Johns. 314,
326; Van, Buren
v. Cockburn, 14 Barb. 118;
Pulen
v.
Reynolds,
22 How. 353.) The judgment-roll in the suit, which was admitted in evidence, showed Church’s possession, as having re-entered under the lease.
In
Jackson
v.
Rightmyre (supra),
which was an action of ■ejectment, the chancellor held that as the defendant had acquired possession under the authority of a judgment at law, his entry was consequently a lawful one, and that it was not a subject for inquiry as to how it was obtained; whether “ from the want of title or want of attention in the opposite party.” . The chancellor quotes from the language of Lord
Mansfield in
Atkyns
v.
Horde
(1 Burr. 114.), that “ a judgment in ejectment Avas a recovery of the possession (not of the seizin or freehold) without prejudice to the
right
as it might afterward appear, even between the same parties.”
I think, therefore, we must conclude that this defendant having come lawfully and peacefully into possession of the premises in controversy, all there is left of this case is to determine whether the plaintiff originally entered into their possession subject to the Yan Rensselaer lease, or by a good title to the fee thereof. We shall have to determine whether there was such adverse possession as, by the lapse of years, had ripened into a good title in plaintiff. Plaintiff claims title under a deed remising, releasing and quit-claiming the premises to liim, made in 1863 ; Avith prior possession by the grantors from 1850. 3STo proof was given as to the source of title of his grantors. On the trial it was admitted by the parties that the premises were subject to the original lease of Yan Rensselaer to Snyder, at the date of said lease.
That lease being perpetual, under well-settled rules of law, every one entering into possession of the demised premises is presumed to have entered under the lease, and that presumption can only be rebutted successfully by sufficient proof of an adverse possession at some time, in hostility to the landlord’s title. Where the relation of landlord and tenant is once established, as it was by the concession of the parties here, it attaches to all who may succeed to the possession under the tenant, however remotely. In
Jackson
v.
Harson (7
Cow. 323-325), Woodworth, J., discusses and asserts this doctrine. In the entire absence of any proof to the contrary, the occupation by this plaintiff’s grantors will be controlled by this presumption and they Avill be deemed to have entered as tenants under the lease.
In
Whiting
v.
Edmunds
(94 N. Y. 309), it was held that “where the relation of landlord and tenant has been once established, the possession of the latter and that of his grantees and assignees is the possession of the landlord, and riot hostile or adverse.
(Jackson
v. Davis, 5 Cow. 129 ;
Sands
v. Hughes.
53 N. Y. 293.) And this is true, even where the grantee has taken a deed of the fee in ignorance of the fact that his grantor stood in the relation of a tenant; the latter denying any such relation.
(Jackson
v.
Scissam,
3 Johns. 499.) ” And speaking of this presumption that the possession of the tenant continues always in subordination to the title of the landlord, Finch, J., continues:
“
This presumption may be rebutted, but, to do so effectively and initiate an adverse holding, the tenant must surrender the possession to the landlord, or do something equivalent to that and bring home to him knowledge of the adverse claim.” (Citing cases.)
That this lease was perpetual does not affect the case. These leases are of great antiquity. A discussion of their origin seems unnecessary here; for, by more or less recent decisions of this court, their validity and effect have been settled. But it maybe pertinently added, perhaps, that whether we turn to the earlier periods of the civil law, or to the later history of the common law, we never find that it was supposed that the ownership of the grantor in such a lease was ever either extinct or dormant. It was kept alive (as here) by a power of re-entry on non-payment of the rent, a right of preemption in case of sale and a certain control over the use of the land. By non-payment of the ground rent a forfeiture is worked and (aside from the rent) the chance of such a termination constitutes nearly the only interest left to the owner. The rights of the tenant, or grantee, were almost as extensive as those of an owner; but the obligations were always dominant. , So the civil law regarded his interest; and it deemed him capable of selling the land to a buyer who would gain the same extensive rights, but, nevertheless, with the same obligation of annual rent payment.
As to non-payment of rent, or the neglect to demand or collect any in the past, no presumption is thereby created which affects the existence of this lease. In the case of
Jackson
v. Davis (5 Cow. 123), questions were discussed similar to those raised here. Sutherland, J., in his opinion, says: “ But it is said that although a person succeeding a tenant is to be pre
sumed to have taken as tenant also, yet he may repel that presumption by showing that he did not take in that character; and that the testimony of James Davis shows that the defendant purchased the premises in question, not as leasehold property, but in fee absolute, * * * but whether he gave a deed with covenants of warranty, or only a quit-claim, does not appear. Admitting, however, that he purchased and entered upon the premises under an absolute conveyance in fee, he still, in judgment of law, entered as the tenant of the Yan Schaicks. * * * But it is said that * * * an abandonment of the title on the part of the Yan Schaicks is to be presumed, inasmuch as there is no proof of the payment of rent or any acknowledgment of tenancy within twenty years. * * * Satisfaction of the rent might possibly be presumed * * * after a forbearance of twenty years. * * * But where the relation of landlord and tenant is once established, under a sealed lease, the mere circumstance that the landlord has not demanded the rent, cannot justify the presumption that he has extinguished his righfr to it by a conveyance of the interest in remainder or reversion to his tenant.”
In
Lyon
v.
Odell
(65 N. Y. 28), an action for rent under one of the Yan Rensselaer perpetual leases, no rent had been paid for about fifty-one years, and the question was whether the law indulged the presumption that all the rights reserved by Yan Rensselaer in the lease had been released or extinguished, and it was held, on the authority of
Jackson
v. Davis, that there was no such presumption.
When we consider, then, what there is in this case to prove a title by possession, hostile to the landlord’s title, we find nothing but non-payment of rent in the past and the quit-claim deed by the St. Johns to plaintiff. We find no open or notorious act proved, which indicated in any feature an adverse holding; or which brought notice home to the lessor, or his successors in interest, of any hostile holding.
A deed of release and quit-claim is to be deemed effectual as a grant under our statute, it is true; but, while a conveyance may be effected thereby, it is, as it says, only the release
to the grantee of whatever title or interest the. grantor has. The force and significance are absent which attend a conveyance with covenants of title, etc. It passes the title as the grantor held it, and the grantee takes only what the grantor could lawfully convey.
(May
v.
Le Claire,
11 Wall. [U. S.] 217, 232.)
It cannot be deemed as of necessity implying a title hostile to that of the landlord, for its language does not import or imply that much. It would convey a leasehold interest, and holding under it would not be inconsistent with holding under the lease. When the plaintiff received it, he may or he may not have been ignorant of the lease and of the nature of his grantor’s holding; but, whatever his knowledge, he will be presumed to have entered under the lease; unless he can show that he brought home to the lessor, or his successor in interest, knowledge of his claim to hold adversely.
As there is no evidence of any such act on the part of the plaintiff, or of his grantors, the plaintiff’s action must fail. He has not succeeded in proving a title to the land superior to that of defendant Church. Nor can plaintiff claim here that the title to the premises is in him under the lease. His complaint alleged ownership in fee of the premises and the judgment at Special Term awarded him possession as such owner. The action was in hostility to the lease and in denial of defendant’s rights under it.
The order and judgment of the General Term appealed from should be affirmed, with costs, and, under the stipulation of the appellant contained in the notice of appeal, judgment absolute should be rendered against him.