Kellogg v. Kellogg

6 Barb. 116

• Court: New York Supreme Court
• Decided: March 6, 1849
• Status: Published

Opinion

By the Court, Allen, J.

The plaintiff, Pearl Kellogg, when the evidence was closed on the part of the plaintiffs, was entitled to a verdict for the whole premises, in fee, under the first count in the declaration. The evidence showed the defendant in possession of the premises at the time of the recovery of a judgment against him, by virtue of an execution issued, upon which the premises were afterwards sold, and a continued possession in him from that time to the time of the commencement of the suit, and that Pearl Kellogg had acquired the title of the defendant under the sale upon that execution. (Jackson v. Town, 4 Cowen, 599. Jackson v. Parker, 9 Id. 81. Jackson v. Graham, 3 Caines, 188. Day v. Alverson, 9 Wend. 223.) But'it is insisted, on the part of the defendant, that the title acquired by Pearl Kellogg, under the judgment and execution, was not valid, because the defendant was in possession under a contract for the purchase thereof from Pearl Kellogg, and that therefore he had no interest which could be sold by execution at law. By statute the interest of a person holding a contract for the purchase of lands is not bound by the docketing of a judgment or decree, and can not be sold by execution thereon. (1 R. S. 744, § 4 to 6.) In this case the defendants did not acquire any right to the possession of the premises under the contract to purchase. It was a naked contract of purchase, and was silent upon the subject of possession. A right of entry did not follow from such contract. (Suffern v. Townsend, 9 John. 55. Cooper v. Stower, Id. 331.) There is no evidence of a parol license to the defendant to enter as a purchaser under the contract, and if there was it would not aid the defendant; for such parol license, and the possession in pursuance of it, would be an interest in the land distinct from the interest acquired under the contract, and would be subject to sale by execution. The statute only exempts from such sale the interest acquired by the contract. The chancellor, in Talbot v. Chamberlin, (3 Paige, 219,) says, “ I am inclined to think that if the defendant is in possession under and by virtue of the contract to purchase, •his possession under that contract, can not be sold on execution at law.” “ But the provision of the statute can not protect the possession of the defendant in the execution from a sale by the sheriff, unless he holds that possession as a part of his interest acquired under the contract to purchase. In this case it appears that the defendant had no right to the possession of the land under any contract for the purchase thereof. The contract with Talbot gave him no such right, and he can not set up a parol agreement not contained in the written instrument. If such a parol possession was given it was not a part of the contract to purchase, which the statute requires to be in writing.” In Griffin v. Spencer, (6 Hill, 525,) the defendant was entitled to the possession under his contract. Bronson, J. says, “ Possession is a part of the interest acquired under the contract, and if the defendant has no other right to the property there is nothing on which a sale at law can operate.” We can not presume, in this case, that the defendant entered and acquired the possession under and by virtue of his contract of purchase. The contract itself is in evidence, and gives no such right, and leaves no room for presumptions. In Jackson v. Croy, (12 John. 427,) cited by the defendant’s counsel, the court held merely that the repeated applications of the defendant to the plaintiff to purchase the premises before he took possession, afforded strong presumption that he came into possession under the plaintiff. No contract was proved, and the evidence was submitted to the jury with other circumstances, and with a view to rebut the evidence of adverse possession which was relied upon by the defendant, and whether the entry was under the contract or any other license was wholly immaterial. The possession, in either case, was not adverse. And if we presume, in this case, that the defendant entered in pursuance of a parol license then, as we have seen, the possession thus acquired was the subject of a sale on an execution, and the plaintiff Pearl Kellogg acquired it under the sheriff’s sale. But whether the defendant entered into possession of the premises with or without the license and permission of the plaintiffs, having taken from one of them a contract for the purchase, and treated him as the owner, he would not be permitted, in an action of ejectment by the vendor, to set up his possession as adverse to the title of his vendor. His possession would be deemed consistent with the title of his vendor, and to this extent, and no further, do the cases cited and relied upon by the defendant’s counsel go. [Jackson v. Johnson, 5 Cowen, 74, Cooper v. Stower, 9 John. 331. Jacksons. Sears, 20 Id. 440.) And these decisions are all based upon very familiar principles not at all affecting the questions before us in this case.

It is next insisted, in behalf of the defendant, that the title proved by the plaintiff, under the sheriff’s sale, was not good because James Kellogg was a tenant at will or sufferance, and therefore he had no interest which could be sold by execution at law. And to maintain this position it is assumed that the defendant, at the time of the sale on the execution, was in possession of the premises under his contract for the purchase. But there was no evidence of this. On the contrary, the contract not giving him a right of entry, his possession must be referred to some other right or some other contract, and what that right was, or what were the terms of that other contract, does not appear. If he entered under his contract, his possession would be protected from sale by execution as an interest acquired under and by virtue of his contract, and not as an estate at will. Although for some purposes the entry of a purchaser upon the purchased premises is called an entry as by a tenant at will, yet the estate of the vendee can not be said to be an estate at will or at sufferance. In Cooper v. Stower, (9 John. 331,) the contract, without containing a clause giving the vendee a right of entry upon the premises, did contain a clause from which the defendant insisted that a license to enter was necessarily to be implied, and it was in reference to that part of the contract that the court say, that the most that can be implied is, that the defendants were at liberty to enter as tenants at will, and to occupy the land in a reasonable manner as other tenants at will might do; but whether such license to enter was to be implied in that case was not decided. The action was trespass, for waste, and the court held that even if the vendee had the right to enter, as was contended, he had no greater right to commit waste than a tenant at will would have had; that is, that a license to enter was not a license to commit waste. Doubtless, in many respects, the rights and duties of a vendee in possession under a contract of purchase, are very like those of tenants at will, at sufferance, for years, for life in dower, or by curtesy; but it by no means follows that he has the estate of either class of such occupants. There is no tenancy; the relation of landlord and tenant does not exist; he is not entitled to notice to quit, and can not be dispossessed by summary proceedings. His possession may be likened to that of a tenant, for many purposes, but his “ estate” is sui generis, and does not come within the act exempting “ estates” at will or by sufferance from sale on execution. (1 R. S. 722, § 5.) An estate at will is where one man lets land to another to hold at the will of the lessor. (4 Kent's Com. 110.) A tenant at sufferance is one that comes into possession by lawful title, but holdeth over by wrong. (Id. 116.) The defendant has not brought his estate within either definition.

The copy answer of the plaintiff Pearl Kellogg to a bill in chancery, filed against him by the defendant, was rightfully excluded as evidence. As a copy of the answer on file it was to be proved as other transcripts, that is, by a witness who had compared the copy line for line with the original, or who had examined the copy while another person read the original. (1 Phil. Ev. 386. Cowen & Hill's Notes, p. 1065, note 719.) Had the trial been in the same court, and in the same cause, the office copy of the answer served by the solicitor of the plaintiff would have been competent evidence. (1 Phil. Ev. 387. Cowen & Hills Notes, 1068. Roscoe's Cr. Ev. 187. Burnand v. Nerot, 1 Car. & P. 578.) And probably if the trial had been in another court but in the same cause in which the answer was put in, as upon the trial of a feigned issue in that cause, the answer would have been evidence. (Highfield v. Peake, 1 Moody & Malkin, 109.) And this is the extent of the rule. In Jackson v. Harrow, (11 John. 434,) the copies of affidavits offered in evidence had been served in the same cause, as the foundation of a motion to permit the defendant against whom they were offered, to defend the action in place of his tenant. So in Ripley v. Burgess, (2 Hill, 360,) copies of the pleadings in the cause were used on an interlocutory motion in the same court and in the same cause in which they had been served. But secondly, the evidence was incompetent for the " purpose offered; that is, to prove that the defendant was in possession of the premises under his written contract. He could not have been in possession under that, as it did not authorize an entry; and if the entry was in virtue of any other license or contract, the possession was not protected from sale on execution. (3 Paige, 220. 6 Hill, 525.) Mr. Kirkland, the counsel, was properly excused from producing the deeds in his possession, and which he had received in his character as counsel, and from speaking of their contents. (Jackson v. Dennison, 4 Wend. 558. 1 Phil. Ev. 140. Cowen & Hill’s Notes, 276.)

As the evidence stood at the close of the trial, the plaintiffs were entitled to recover the whole premises, although not precisely in the proportions claimed in the declaration. The only variance was, however, in the claim of Pearl Kellogg, who had in one count claimed the whole of the premises, and in the other three-eleventh parts thereof. The evidence showed him entitled to recover three-elevenths and one-third of one-eleventh. The rights of the other plaintiffs were truly stated. In determining the rights of the parties, we lay out of view the testimony of Barker, that Pearl Kellogg was reputed to own only three-elevenths of the premises. It was not competent evidence to limit his right. Without reviewing the cases, or examining the statute at length, we think the plaintiffs are entitled to recover according to the proof, and the declaration may be amended accordingly. Such are the decisions in Borst v. Griffin, (9 Wend. 307;) Bear v. Snyder, (11 Id. 593 ;) Harrison v. Stevens, (12 Id. 170;) Van Alstyne v. Spraker, (13 Id. 578; Hinman v. Booth, (21 Id. 267;) Ryerss v. Wheeler, (22 Id. 148;) S. C. (25 Id. 434;) Truax v. Thorn, (2 Barb. S. C. Rep. 156;) Vrooman v. Weed, (Id. 330;) Van Rensselaer v. Jones, (Id. 643.) In Holmes v. Seeley, (17 Wend. 75.) the court say that a better way, upon the trial of an action of ejectment, is to disregard a variance in description of the quantity of interest, and allow a verdict to be taken according to the proof, leaving the plaintiff to apply to amend his declaration. Gillet v. Stanley, (1 Hill, 121,) followed Holmes v. Seeley, and in Cole v. Irwin, (6 Hill, 634,) the question did not arise and was not decided; and these are all the cases upon the subject. We have no doubt of our right to do what the judge upon the trial might have done—disregard the variance—and we have the additional right to authorize an amendment of the declaration, which we do.

The view we take of the rights of the plaintiffs, obviates the necessity of passing upon a question made by the defendant upon the assumption that the plaintiffs were entitled to recover only several undivided parts of the premises, and less in the aggregate than the whole, viz, that if two or more tenants in common unite in an action of ejectment, all must unite under the provisions of 2 revised statutes, 341, section 11, which is a re-enactment, in substance, of section two of the act for regulating the process and proceedings in assizes and other actions. (1 R. L. 80.) This act was not designed to affect proceedings in the action of ejectment proper, but to obviate a difficulty which existed in real actions and prevented those having a common interest from uniting in a writ of right, (Jackson v. Bradt, 2 Caines, 169,) and does not now apply to actions of ejectment, unless they are brought as substitutes for a writ of right. (Cole v. Irvine, 6 Hill, 634.) But in the action of ejectment, there never in this state was any difficulty in tenants in common uniting in the action; and as their right to unite did not depend upon the statute which received a construction in Cole v. Irvine, there is no necessity as there is no reason for applying the principle there decided. In Jackson v. Bradt, there was a recovery of ten-twelfths of the premises, showing that it was not then considered necessary that all the tenants in common should unite in the action, although several had done so. (See also 4 Cranch, 165.)

It rested in the sound discretion of the judge, at the trial, to admit further evidence after the trial had once closed; and as there was no complaint that the defendant was taken by surprise or had before the time he offered the evidence been unable to procure the attendance of witnesses in court, we can not say that the discretion was improperly exercised. (Jackson v. Tallmadge, 4 Cowen, 450. Leggett v. Boyd, 3 Wend. 379. Leland v. Bennett, 5 Hill, 286, 289. Cowen & Hill’s Notes, 712, 718.) And there is some doubt whether the evidence offered would have been competent at any stage of the trial. (Jackson v. Town, 4 Cowen, 599. Jackson v. Graham, 3 Caines, 188. Jackson v. Parker, 9 Cowen. 81.) But we rest our decision upon the ground that the admission or rejection of the evidence at the time it was offered, was in the discretion of the judge upon the trial. The plaintiff, Pearl Kellogg, is entitled to judgment for three-elevenths and one-third of one-eleventh, and the other plaintiffs are entitled to judgment for seven-elevenths and two-thirds of one eleventh of the premises.

Judgment accordingly.