O'Donnell v. . McIntyre

The witnesses sworn in behalf of the defendant, as well as those sworn in behalf of the plaintiff, testified that the defendant attempted to eject the plaintiff from the house by force and that she successfully resisted, but there is much dispute between them as to the amount of force exercised by each. The learned trial justice instructed the jury that the plaintiff was, at the time of the quarrel, in possession of the premises and had the right to use reasonable force to retain her possession and to eject the defendant, but he had no right to exercise force to acquire possession or to remain in the house after having been notified by the plaintiff to leave. The exception to this instruction, which was repeated in various forms, presents the only question argued on this appeal.

The learned trial justice held, and in this he was sustained at General Term, that the attornment of Bates to defendant was void under the Revised Statute, which provides:

"Sec. 3. The attornment of a tenant to a stranger shall be absolutely void, and shall not in any way affect the possession of his landlord unless it be made,

"1. With the consent of the landlord; or

"2. Pursuant to or in consequence of a judgment at law, or the order or decree of a court of equity; or

"2. To a mortgagee after the mortgage has become forfeited." (1 R.S. 744.)

The tax sale was had and the deed given under chapter 104 of the Laws of 1877, the twentieth section of which provides that six months after a certain notice has been served and a certificate given, "the conveyance before made shall thereupon become absolute, and the occupant and all others interested in said lands shall be forever barred of all rights and title thereto." This certificate was issued March 1, 1883.

All attornments by lessees were not abolished by the Revised Statutes. (Austin v. Ahearne, 61 N.Y. 6.)

It was held below that the defendant was a stranger to the plaintiff's title and that the attornment, not falling within any of the three exceptions, was void. The word stranger as used in the section quoted, is a person between whom and the landlord there is no privity and whose title or right of possession is not derived from the landlord, but is hostile to his title. (Wood's Inst. 245; Toml. Law Dic. and Abb. Law Dic., title Stranger.)

Under chapter 104 of the Laws of 1877, the defendant acquired by virtue of his purchase in August, 1880, only a lien on the premises, which continued until August 29, 1882, the date of his deed, by which he acquired a conditional title, which became absolute March 1, 1883, the date of the certificate issued by the county treasurer. (Black. Tax Titles, §§ 955, 965.) While the proceedings out of which the deed arose related to the time when the tax was assessed against Mary Harrigan, the defendant's title was derived directly from the plaintiff through the taxing power of the state, and she and the defendant were not strangers, but privies. (Hubbell v. Weldon, Hill Denio Supl. 139; Black. Tax Titles, §§ 954-988; Wood's Inst. 245; Toml. Law Dic.; Abb. Law Dic., title Stranger.) In the case cited, Chief Justice NELSON, speaking for a unanimous court, said: "Assuming the tax sale valid, the owners or occupants are to be regarded after that as holding in subordination to the title of the purchaser, as quasi tenant to him, like a defendant in possession after sale of his real estate on judgment and execution."

Assuming, as it was at the Circuit and at the General Term (and there is no evidence in the record which tends to contradict the assumption), that the defendant acquired a legal title in fee March 1, 1883, the symbolic delivery of the possession of the premises by Bates to defendant and their agreement that thereafter Bates should be the tenant of the defendant and pay the subsequently accruing rent to him, divested the possession of the plaintiff and vested the defendant with the possession of the premises.

These views lead to a reversal of the judgment and a new trial, with costs to abide the event.

All concur with PARKER, J., except FOLLETT, Ch. J., dissenting, VANN, J., not voting, and BRADLEY, J., not sitting.

Judgment affirmed.