Kincaird v. Scott , 12 Johns. 368 ( 1815 )

Platt, J.

delivered the opinion of the court. This is an action of waste contra formara statutú The irregularity at the circuit, in directing a nonsuit, instead of putting the defendant to his motion in arrest of judgment, being waived on the argument, the only question is, whether the defendant had such an interest in the land, or stood in such a relation to the plaintiff, as to make him liable to this action, under the statute ?

At common law, an action of waste lay only against guardian in chivalry, tenant in dower, and tenant by the curtesy; and not against a tenant for life or years. The reason for the distinction was, that the estate of the three former was created by the act of law, which, therefore, gave a remedy against them; but tenants for life, or for years, came in by the demise of the owner of the fee, who might have provided against the committing of waste by his lessee. (Co. Lit. 54. a.)

Our statute “ for preventing waste,” (1 R. L. 62.) combines the provisions of the statute of Marlbridge, (52 Hen. III. ch. 23.) and the statute of Gloucester, (6 Edw. I. ch. 5.) and gives an action of waste and triple damages, and forfeiture, “ against him or her who holdeth by curtesy, or otherwise for term of life, or for term of years, or other term, or a woman in dower, as well as against guardians,”

It cannot be pretended that the defendant stands in the relation of guardian to the plaintiff. We have, therefore, only to inquire, whether he is to be considered as holding “for term of life, or for term of years, or other term."

Under the rules of construction applicable to penal statutes, I think the defendant is not a tenant,. within the purview of the act. By the will of John Kincaird, the lands are devised in fee simple to the plaintiff, an infant; and the testator then appoints the defendant trustee for the plaintiff, of all the lands so devised,, until he shall arrive at full age.

This gave to the defendant the right to occupy and control the real estate during the minority of the devisee, as trustee for the infant; and, as such, he is under the general superintendance and control of the chancellor, and-is accountable according to the rules which govern trusts. He has no interest' or estate in the lands, in his own right, and may be devested of the trust, for incompetency, or other good cause, at the discretion of the chancellor.

The relation of landlord and tenant does not subsist between the trustee and his cestuy que trust. Scott does not hold the .lands under the plaintiff, but for him.

Clifton's case (5 Co. 75.) is an exposition of the English statute, of which ours is a transcript; and it was there ruled, that 11 if a feme lessee for life takes husband, the husband does waste, and the wife dies, the husband shall not be punished by this law: for the words of the act be, ‘ a man that holds, &c. for life and the husband held not for life, for he was seised but in right of his wife, and the estate was in his wife.” (2 Inst. 301. Co. Lit. 54. a.)

“ But if a feme be possessed of a term for years, and take husband, and the husband doth waste, and the wife dieth, the husband shall be charged in an action of waste ; for the law giveth the term to him.” (Co. Lit. 54. a.)

The forfeiture of the place wasted, (given by the statute,) implies, that the person against whom that remedy is given, has an interest and estate in the lands. Here the trusteeship was not an estate, but an office merely; and the plaintiff is not entitled to the remedy given by this penal statute.

Motion for setting aside the nonsuit denied.