Jackson ex dem. Van Rensselaer v. Hogeboom

11 Johns. 163

• Court: New York Supreme Court
• Decided: May 15, 1814
• Status: Published

Opinion

Per Curiam.

1. The first question is, whether the defendant Is to hold according to the courses and distances in the lease of the 8th of November, 1763, or according to the map made by Schuyler, cotemporaneously with the lease, Schuyler also having made the survey on which the lease was founded?

It seems to be admitted that there is a mistake in the lease; a.nd it is very clear that a court of equity, after so long an acquiescence, would rectify that mistake. But it is not necessary to send the party to that court. In the case of Jackson v. Duffendorf and Zoller, (3 Johns. Rep. 270.) we held that a possession of 38 years was not to be disturbed, because, from a recent survey, it did not correspond with partition deeds executed 60 years before. We considered the parties, and those who claimed under them, concluded by so long an acquiescence, and that every legal presumption, and every consideration of policy, required that this evidence of right should be taken to be conclusive.

In this case, the lands have been held 51 years, according to the survey. Twelve or fifteen years after giving the lease the mistake was discovered by one of the agents of the lessor, and on the production of the map, the agent declared that the line must be run according to the map. The agent certainly could not bind the principal, but this furnishes evidence, that in all human probability the principal was made acquainted with the discrepancy between the map and survey, and acquiesced in the land being held according to the map.

It would appear, however, that there is some land, how much is not stated, held by the defendant, without the survey; the same principle applies to that excess.

2. Has the plaintiff a right to maintain an ejectment for the rents due and unpaid under the lease of November, 1763?

The lease does not provide for a re-entry in case the rents remain due; but after the habendum, there follows a condition that the lessor, his heirs and assigns, shall pay a yearly rent of one tenth part of the produce of the lands demised. It may well be doubted whether the lessor, or his representatives, have any other remedy to be reinvested with the possession than that afforded by the common law, a demand of the rent on the land and at the day it became due.

* But, admitting that the statute authorizing an ejectment, where the party has a lawful right to re-enter in case there be no sufficient distress, extends to such a lease, the evidence in this case by no means proves that there was not a sufficient distress on the premises when the declaration in ejectment was served. The want of distress must be at the time the party serves the ejectment. The testimony does not show when it was served, or that there was then a want of distress.

Judgment for the defendant.

Bac. Ab. Rent, (K. 4.)