Jackson ex dem. Smith v. Stewarth

New York Supreme Court

Jackson ex dem. Smith v. Stewarth

6 Johns. 34

CourtNew York Supreme Court

DecidedMay 15, 1810

StatusPublished

Cited by26 cases

This text of 6 Johns. 34 (Jackson ex dem. Smith v. Stewarth) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Jackson ex dem. Smith v. Stewarth, 6 Johns. 34 (N.Y. Super. Ct. 1810).

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Opinion

Per Curiam.

This is a clear case for the plaintiff, The defendant entered into possession under the plaintiff, and acknowledged his title. He now attempts to shelter himself under a lease for ever, executed by Joseph Smith, the father of the plaintiff, in 1769. As an outstanding title in some third person, it was certainly not available. It was a lease, with a reservation of rent, and a clause of re-entry. The original lessee died in 1775, without wife or child, and we have no evidence of any continuation of the possession under him; and 22 years before the trial, we find the lessor taking possession again, and continuing it until the repent disclaimer by the defendant.

[37]*37In such a case, a regular re-entry was to be presumed, as was done in Jackeon ex dem. Goose, v. Demarest, (2 Caines, 382.) and which offered less ground for the presumption, than the present case. The defendant equally failed to show title in himself under that lease ; for there was no evidence that the plaintiff had ever assigned his reversionary interest. The claim, or the exercise of a power, tó make such an assignment by Clifford or Hitchcock, as attorneys for Smith, cannot affect Smith, without due proof of their authority from him, or of his recognition of their acts ; and there was not the least proof of either.

The attempt of the defendant, to question the authority of the attorney for the plaintiffs, in bringing the suit, was also unavailing. It is the course of the IC. B. said Ch. J. Holt, (l Salk. 86.) when an attorney takes upon himself to appear, to look no further, but to proceed, as.if the attorney had sufficient authority, and to leave the party to his action against him.

The plaintiff is, therefore, entitled to judgment.

Judgment for the plaintiff,

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Per Curiam.

This is a clear case for the plaintiff, The defendant entered into possession under the plaintiff, and acknowledged his title. He now attempts to shelter himself under a lease for ever, executed by Joseph Smith, the father of the plaintiff, in 1769. As an outstanding title in some third person, it was certainly not available. It was a lease, with a reservation of rent, and a clause of re-entry. The original lessee died in 1775, without wife or child, and we have no evidence of any continuation of the possession under him; and 22 years before the trial, we find the lessor taking possession again, and continuing it until the repent disclaimer by the defendant.

[37]*37In such a case, a regular re-entry was to be presumed, as was done in Jackeon ex dem. Goose, v. Demarest, (2 Caines, 382.) and which offered less ground for the presumption, than the present case. The defendant equally failed to show title in himself under that lease ; for there was no evidence that the plaintiff had ever assigned his reversionary interest. The claim, or the exercise of a power, tó make such an assignment by Clifford or Hitchcock, as attorneys for Smith, cannot affect Smith, without due proof of their authority from him, or of his recognition of their acts ; and there was not the least proof of either.

The attempt of the defendant, to question the authority of the attorney for the plaintiffs, in bringing the suit, was also unavailing. It is the course of the IC. B. said Ch. J. Holt, (l Salk. 86.) when an attorney takes upon himself to appear, to look no further, but to proceed, as.if the attorney had sufficient authority, and to leave the party to his action against him.

The plaintiff is, therefore, entitled to judgment.

Judgment for the plaintiff,

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Bluebook (online)

6 Johns. 34, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jackson-ex-dem-smith-v-stewarth-nysupct-1810.

Opinion

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