Brewer v. Ireland

Supreme Court of New Jersey

Brewer v. Ireland

67 N.J.L. 31, 38 Vroom 31

DecidedNovember 11, 1901

StatusPublished

This text of 67 N.J.L. 31 (Brewer v. Ireland) is published on Counsel Stack Legal Research, covering Supreme Court of New Jersey primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Brewer v. Ireland, 67 N.J.L. 31, 38 Vroom 31 (N.J. 1901).

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Opinion

The opinion of the court was delivered by

Garrison, J.

By force of the demurrer the defendant, while a tenant for years, committed waste. At common law the plaintiff’s action would lie. The only question is whether the statute under which the defendant holds his estate, to wit, the Tax act, authorizes him to cut timber trees during his term. The pertinent provisions of that act are that the purchaser of a recorded tax title is entitled to possession of the lands described in his certificate of sale and to all the rents, issues and profits arising therefrom during his term; that, if redeemed by the owner, the purchaser shall recover and restore to him such real estate; if not redeemed, the purchaser, at the expiration of his term, shall yield up the same to the owner in as good state and condition as when he took possession of it, damages resulting from ordinary use and the elements excepted. Gen. Stat., p. 3354, § 337 et seq.

It is clear that, at the expiration of his term, the tenant could, under this statute, set up against a reversioner, who had not redeemed, the ravages of time, use and the elements only; if he have any greater right against a reversioner who has redeemed, it. should clearly appear. There is nothing in the statute to give color to so meaningless a distinction. “Rents, issues and profits”.are well-defined words that exclude waste, especially when used in a context in which possession is contrasted with ownership.

Upon a traverse of the narr the defendant may offer to show that what he did was not what the plaintiff has charged him with doing. That is matter of defence. The declaration states facts that, prima facie, constitute waste; by demurring the defendant admits these facts in their legal significance.

The plaintiff is entitled to a judgment overruling the demurrer.

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The opinion of the court was delivered by

Garrison, J.

By force of the demurrer the defendant, while a tenant for years, committed waste. At common law the plaintiff’s action would lie. The only question is whether the statute under which the defendant holds his estate, to wit, the Tax act, authorizes him to cut timber trees during his term. The pertinent provisions of that act are that the purchaser of a recorded tax title is entitled to possession of the lands described in his certificate of sale and to all the rents, issues and profits arising therefrom during his term; that, if redeemed by the owner, the purchaser shall recover and restore to him such real estate; if not redeemed, the purchaser, at the expiration of his term, shall yield up the same to the owner in as good state and condition as when he took possession of it, damages resulting from ordinary use and the elements excepted. Gen. Stat., p. 3354, § 337 et seq.

It is clear that, at the expiration of his term, the tenant could, under this statute, set up against a reversioner, who had not redeemed, the ravages of time, use and the elements only; if he have any greater right against a reversioner who has redeemed, it. should clearly appear. There is nothing in the statute to give color to so meaningless a distinction. “Rents, issues and profits”.are well-defined words that exclude waste, especially when used in a context in which possession is contrasted with ownership.

Upon a traverse of the narr the defendant may offer to show that what he did was not what the plaintiff has charged him with doing. That is matter of defence. The declaration states facts that, prima facie, constitute waste; by demurring the defendant admits these facts in their legal significance.

The plaintiff is entitled to a judgment overruling the demurrer.

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Bluebook (online)

67 N.J.L. 31, 38 Vroom 31, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brewer-v-ireland-nj-1901.