Jackson ex dem. Norton v. Wyckoff

5 Wend. 53

• Court: New York Supreme Court
• Decided: May 15, 1830
• Status: Published

Opinion

By the Court,

Marcy, J.

The only question in this case is whether this action can be maintained, it appearing that there was property on the whole tract when the suit was instituted, sufficient to countervail the arrears of rent, although on the particular lot sought to be recovered there was not enough for that purpose. It is not pretended that in ordinary cases the landlord can proceed in ejectment to recover premises as forfeited by the tenant, if there is, on any part of them, properly that may be distrained sufficient, to satisfy the rent; but it is contended that the tract originally demised having been long severed, the landlord must proceed, in relation to the subdivisions, as if each tenant had a separate lease, and that he cannot call on the tenant of one subdivision for the rent due from the occupant of another.

The tenants aré undoubtedly concluded in their rights by the partition and the subsequent possession pursuant to it; 4 Johns. R. 202; but the landlord was not a party to that proceeding, and therefore is not bound by it. It is said he has subsequently ratified and confirmed the partition. I do not think the evidence establishes that fact. The partition xvas made thirty years since, and no other act is shown on the part of the landlord, than that his agent, in conjunction with the tenant, called on a surveyor in 1822 to run out the subdivisions as they had been possessed by the respective tenants, which was done, and a map made and delivered to the agent of the landlord. The landlord, it is (rue, is not contesting the partition or denying its obligatory force on him, but the question is to be determined by the same rules of law as if he xvas; for if it is not reciprocally binding upon landlord and tenants, the former ought not to be permitted to affirm its validity to work a forfeiture of a part of the tract, and still be at liberty, as it respects other parts of it, to impeach its validity. I see nothing in this case which impairs his right to enter upon the premises in question, or any other subdivision of the tract, and distrain, if he found sufficient properly thereon, for all the arrears of rent due on the whole; and if this right remains to him, he cannot be permitted to affirm the partition for the purpose of forfeiting the tenant’s title to the part now in question.

Motion to set aside the nonsuit denied.