Lansing vs. Pine, 4 Paige Ch. 639

The Chancellor. The defendant was not bound to look beyond the copy of the bill served on his solicitor; and if that did not contain the necessary affidavit, or verification, to give the court jurisdiction, he had a right to demur to the bill on that ground. Here the objection of the want of an affidavit is distinctly made by the demurrer. The complainant, therefore, instead of noticing the demurrer for argument, should have examined the copy of the bill served on the defendant’s solicitor, and should have made it conformable to the bill on file, if that contains the requisite verification.

Independent of this technical objection, I think there was not sufficient equity in the bill to entitle the complainant to the discovery and relief sought thereby. It appears to be a mere fishing bill, for the purpose of ascertaining whether there may not be something in the original lease which will entitle the complainant to claim other and greater rights, in relation to this lot, than those which he has been exercising for nearly half a century.

Immediately after his purchase, in 1788, he commenced receiving rent from the defendant’s father, as the tenant of an undivided half of the lot, and who also claimed! an absolute interest in the other half, at the rate of 12 bushels and a half of wheal, annually, payable on the premises, or in the town of Pittstown.

And after receiving such rent for 42 years, the complainant now asks, from the defendant, a discovery as to the amount of rent originally reserved in the lease ; but without venturing an allegation in'his hill that he even believes that a greater rent, than that which he has been receiving, was reserved, or stipulated to be paid.

After such a lapse of time, even if it should appear that a greater rent was originally reserved, I am inclined to think the court, or a jury, would be bound to presume that the residue of such rent, beyond the twelve and a half bushels of wheat, had been released or extinguished, either by Leake before his attainder, or by the complainant subsequent to his purchase.

Tiie recovery of the rent, at the rate which has been paid by the defendant’s father, certainly could not have been the inducement for filing this bill; as the bill contains no allegation that the defendant has ever declined paying such rent, in the manner in which the complainant had previously been in the habit of receiving it. Neither was the amount due, at the time of the commencement of this suit, of sufficient value to enable the complainant to recover the same in this court.

And as a partition suit, the bill cannot be sustained ; as there is no such tenancy in common between the complainant and the defendant as can entitle the former to a partition, during the continuance of the lease. If, as alleged in the bill, J.

Pine, the father, was in possession, as a tenant under the lease, and became the owner of the rent and reversion as to one half of the premises, the tenancy as to that half was merged in the greater estate, and the rent as to that half was extinguished. “ For if a great and less estate, “ Without one intermediate, “ In the same, person coincide, “ It is a kind of paricide ; “ The great one sinks, or drowns the small, “ Never again to rise at all.” (Conv. Guide, 64. 1 Cruise's Dig. tit. Estate in Fee, § 58. Co.

Litt. 54, b.) It is true, the complainant alleges in his bill that lie has never seen the lease, and that therefore he cannot state the terms thereof, or whether the estate thereby created has expired or has been forfeited. But to sustain a bill for partition, on the ground that the^complainant has become a tenant in common with the defendant, in the reversion, so as to entitle him to the immediate possession of one half of the lot, he should at least have alleged his belief that the one half of the premises had reverted to him by the termination of the estate created by the lease.

And if the estate of the tenant has become forfeited, or is determined by the non-performance of a condition subsequent, the complainant must first recover the possession of his half of the premises by entry, or in an action at law, before he can sustain a bill for a partition of the lot. This court will not even aid him to obtain a discovery whether there are any covenants or conditions, contained in the lease, by which the estate of the lessee may have become forfeited. The bill being defective both in form and substance, the demurrer is allowed ;• and the bill must be dismissed, with costs.

The complainant having died since the argument, the decree must be entered nunc pro tunc.