Russell v. Russell

32 How. Pr. 400

Opinion

By the court, Hogeboom, J.

The affidavit made by the defendant in error; was clearly insufficient to give the justice jurisdiction. The facts stated therein, simply show “ a cropping or cultivating of land on shares,” and by numerous authorities, and a series of well adjudicated decisions, the parties in such eases are tenants in common. (15 Barb. S. C. R. 595, 833 ; 16 How. Pr. R. 454 ; 3 Barb. S. C. R. 397; 15 Wend. 228; 8 Johns. 151; 3 Id. 121; 2 Id. 421; 8 Cowen, 220; 1 Wend. 385; 4 Kent’s Com. 95; Taylor’s Land. & Ten. 720; 26 Eng. Law & Eq. R. 139 ; 1 Hill, 234 ; 7 N. H. R. 306-8 ; Cro. Eliz. 143.)

And it is equally well settled that in such cases no realtion of landlord and tenant exists. (See authorities before cited.) The affidavit must show the conventional relation of landlord and tenant, and that by an agreement, before the applicant is entitled to this remedy. (1 Seld. R. 383.; 5 Wend. 281; 3 Barb. S. C. R. 397; 4 Denio, 71; 24 Barb. S. C. R. 438; 1 Hill, 314; Lal. Sup. to Hill & Denio, 236.) And the affidavit must show the tenant’s relation to the landlord to be that of landlord and tenant by conventional agreement, and not by mere operation of law.

The affidavit showing no such relation of landlord and tenant, the justice clearly erred in issuing his summons, as well in not discharging the proceedings on motion of the plaintiffs in error, for the reasons I have given.

The judgment and proceedings before the justice should be reversed.