Van Rensselaer v. Hayes , 5 Denio 477 ( 1848 )

By the Court, McKissock, J.

There was no error in the charge of the learned judge. The rent due at the decease of the testator went to his executors, and they had full power to pursue the ordinary remedies by action or distress to recover the same. That they had the right to bring ejectment for condition broken is altogether a different proposition. Let us examine it for a moment. The testator being the absolute owner of the lands conveyed them in fee reserving rent, with a condition of forfeiture and re-entry for non-payment. Now on breach of the condition and re-entry by the grantor, or those taking title under him, the party so entering would be reinvested with the original estate, that is, with a fee simple. The mere statement shows, that the subject of the suit was a species of property to which the functions and duties of an executor have no sort of relation. If the testator had held an estate for yea rs in the premises, and had leased for part of the term, with condition of re-entry for non-payment of rent, then on condition broken, the executor could have brought ejectment, the interest of the testator being a chattel real.

Still, the counsel for the plaintiff insists, that waiving the question of the right of the executors to maintain the action, the charge of the judge was incorrect. Because, as it is said, William P. Van Rensselaer, as assignee or devisee, had a right to enter for condition broken during the lifetime of the testator, and on that account he should recover unless there was sufficient distress to satisfy the rents due both before and after the death of his devisor. (1 R. S. 747, § 23.) It is not here necessary to determine the validity of the claim, on general principles, as to the devisee’s right of entry for such a breach of condition. The question in this case is whether the action can be maintained under the statute. (2 R. S. 505, § 30.) It is proper to remark, that though an ejectment under the provisions of the act, provides formally for the resumption of the estate for condition broken; still the primary and principal object is the collection of the rent. Accordingly the landlord to whom the rent is due is alone authorized to bring the action, and on the trial he io bound to prove the rent due to him; that he had a right of en try for non-payment, and that there was not sufficient distress; and on such evidence, his case would be made out, freed from the almost impracticable exactions of the common law. But the statute was never intended to lend its aid unless invoked by a party seeking to recover for non-payment of rent due to himself. Yet if the argument of the plaintiffs’ counsel be correct in principle, the devisee might maintain an ejectment under the statute solely to coerce the payment of rent due to the executors. He would certainly have no more right to do this, than he would to prosecute on the covenants of the lease for rent due to them. The charge of the court, that if there was sufficient distress to pay the rent due the devisee he could not recover, was therefore correct. To illustrate the principle, let us suppose that the defendant had in the present suit, under the 32d section of the act, tendered to W. P. Van Rensselaer all the rent due to him, as devisee, or had brought it into court before trial, with all-the cost and charges incurred by the lessors, can there be any doubt but that the court would have ordered a stay of proceedings thereupon, though the rent due to the executors remained unpaid ? That very question appears to have been long since decided under the 4th of Geo. 2, chapter 28, of which our statute is in substance a transcript. In a case where the lessors of the plaintiff were both executors and devisees, and rent was due them in both capacities, the court ordered a stay of proceedings on payment of the rent due the lessors as devisees. (See Adams on Ejectment, 171, ed. 1840.)

Again, it is urged, that as the defendant admitted at the time the declaration was served, that there was not any, or but a trifling distress on the Roberts farm, by no means sufficient to satisfy the rent, he was estopped from disproving the truth of that declaration on the trial. In support of this proposition the defendant’s counsel cites The Presbyterian Congregation of Salem v. Williams, (9 Wend. 147,) which sustains the general principle contended for. But in the present case the defendant offered and gave evidence tending to show that he did not make the statement attributed to him ; and without any objection by the plaintiffs, he proved that there was at least sufficient distress to satisfy the rent dire the devisee since the death of the testator. "As the estoppel was not relied upon in the proper manner, the question of fact'was correctly submitted to the jury.

Upon all the evidence, I am of opinion that we otight not to •interfere with the verdict.

Néw trial denied.