Kelley v. Jackson

14 F. Cas. 244, 2 Paine 440

• Court: U.S. Circuit Court for New York
• Decided: May 15, 1827
• Status: Published

Opinion

THOMPSON, Circuit Justice.

The court entertain no doubt on the present application, and think it unnecessary to examine the cases cited. Without pronouncing how far this court is bound by the authority of the cases decided in the state courts, it is intended in this case to conform to those decisions. It is objected, first, that no authority is shown to use the names of the lessors; but, in our judgment, the plaintiff must necessarily have such authority. His affidavits show satisfactorily that Fowler claims title under these lessors by means of the deed to Astor. His power to use their names is derived from the deed. They would not be allowed to object to the use of their names, if they attempted to do it. The only relief the court would afford them would be to indemnify them from costs. This power results from the nature of the operation of the deed. The plaintiff could not assert his rights without using the deed.. With regard to the second objection, that these lessors have no title, it is sufficient that the circumstances of the plaintiff's ease require that they should be made lessors. Wherever this is the .case, the state courts do not require that an interest should be shown. In ejectment, the courts always control the action so as to attain justice. We can see here no object in making these persons lessors, but to try the title fairly. It is, in almost all cases, necessary that the plaintiff should make use of the title of the grantor and grantee. Perhaps, if the defendant chooses to stipulate not to avail himself of the adverse possession, we may order the demises to be struck out. Motion denied.