William Wallace against Benjamin Farnsworth, 2 Tyl. 294

Üuria.

The Court are decidedly of opinion, that the County Court erred in suffering the plea or motion in abatement to be filed after the general issue had been pleaded and joined, and after imparlance, An abatement being a dilatory plea, should not be pleaded after imparlance, and surely not after the general issue had been pleaded and joined; but it is probable in this instance, the County Court considered itself bound to depart from the general rule of practice by the words of the statute, which are, “ that if any such action shall be otherwise brought, the same shall on motion be abated,” without specifying the time at which such motion shall be filed.

But it may be observed, that the object of the statute is to prevent an injury which may be received by the landlord by a judgment in ejectment against his tenant, without his being made privy to the suit.

The-tenant may therefore show his tenancy in abatement; land it is his duty to do it on the second day of the first term, according to the established rule of practice; but if he should neglect to do this, “the judgment shall, while remaining in force, be conclusive against him, his heirs and assignsbut such judgment shall not prejudice the landlord, for the statute in the ensuing clause declares, “ that if the plaintiff or plaintiffs shall neglect to join the landlord or landlords, if any there be, with the tenant or tenants in such action, or shall, by collusion with the tenant or tenants, recover judgment against him, her, or them, for the seisin or possession of any lands, tenements or hereditaments, such landlord or landlords shall not be prejudiced thereby, but shall, in any trial thereafter to be had, of his, her, or their right to such lands, tenements, or hereditaments, against the person or persons so recovering as aforesaid, or any holding or deriving claim from or under him, her, or them, be taken and holden to have the prior possession.” So that the waiver of the plea in abatement by the tenant, cannot injure the landlord eventually; and the motion, as it is styled in the statute, stands upon the ground of every other plea in abatement, and should have been subjected to the same rule of pleading.

The second exception merits attention, as this is the first time this clause of the statute has come under the particular consideration of the Court. The words of the statute are, “ which action (the action of ejectment) shall in all cases be brought as well against the landlord or landlords, if any there be, as against the tenant or tenants in possession of the premises demanded.” The question is, what is the intent of the statute in the word tenant ? or rather, what shall be the evidence of such tenancy, as renders it incumbent on the plaintiff to join the landlord with the tenant in the action of ejectment?

Docs the statute intend a tenant by indenture of lease ? and must such be recorded, • or does it intend a tenancy by mere parol? Were the question only what the. nature of the tenancy should be, the Court would be inclined to consider, that as the object of the statute is to prevent a judgment in ejectment against the tenant, it would be immaterial-what the tenure was.

It would be sufficient that it was such between the tenant and the landlord; that it was suitable that the former should give notice to the latter of the suit, for the brevity or weakness of the . tenant’s tenure ought not to affect the landlord’s privilege of being made privy to the action.

The statute provides, that “ the plaintiff shall join the landlord or landlords, if any there he.” The term tenant does not necessarily imply a landlord, excepting as all lands are held under the sovereign as lord paramount; and the term “ tenant,” when not put in apposition with “ landlord,” as in case there be no landlord, is borrowed from our former mode of bringing the action of ejectment by lease, entry and ouster, where there was a supposed tenancy by actual lease; but the term tenant here supposes a mere tenant by possession, or the actual possessor of the land : therefore the statute speaking of a possible landlord, says, “ if any there be." What then shall be plenary evidence to the plaintiff, that there is any landlord who it is incumbent on him to join with the tenant in possession, or the actual possessor of the land, in his action of ejectment ? for it seems the existence of a landlord is a point necessary to be determined by the plaintiff on the impetration of his writ.

If a person ejects another from his land, and the plaintiff brings his action against him, not knowing of any person under whom the ejector may hold, it might seem unreasonable that the ejector should .defeat his process by showing, that by a contract known only to the parties, he was a tenant to. some one. On the other hand, if the plaintiff was at all times allowed to plead ignorance of the ejector’s holding as a lessee, the statute would be defeated. Where then shall the line be drawn to give the statute a rational construction ? Vermont Stat. vol. 1. p. 189. c. 10. s. 5.

The act regulating the conveyances of real estates,, and for the prevention of Frauds therein, is considered by the Court to bear upon this subject, when it enacts, “ that no deed of bargain and sale, mortgage, or other conveyance in fee-simple, ee-tail, or for term of life, or any lease for more than one year from the making thereof of any lands, tenements, or hereditaments in this State, shall be good and effectual in law to hold such lands, tenements, or hereditaments against any other person or persons but the grantor or grantors, and their heirs only, unless the deed or deeds thereof be acknowledged and recorded in manner aforesaid.” Here appears to be a line drawn between the evidences of land tenures which shall be considered to be known to third persons, and those which third persons are not obliged to notice, though they shall enure against the contracting parties, their heirs and assigns.

The Court do not, however, go so far as to say, that in every case of parol lease the plaintiff in ejectment is excused from joining the landlord with the tenant in an action against the latter; for if the knowledge of the existence of the lease can be carried home to the plaintiff, his writ shall abate, if he has neglected to join the landlord with the tenant. But then, if the defendant, when sued alone, would take advantage of this, he must set forth such knowledge in the plaintiff in his plea in abatement. The Court therefore consider, that a plaintiff in ejectment, brought under the 88th

section of the judiciary act, is not obliged to join a landlord with the tenant in possession, who holds by parol lease, or written lease unrecorded, unless it can be proved that the plaintiff had knowledge of the existence of such lease. As such knowledge in the plaintiff is .not allegated in the defendant’s motion or plea in abatement, the Court consider, that the County Court erred in abating the plaintiff’s process for the cause therein assigned. The remaining exceptions in error, as the former are held valid, do not require a particular consideration at this time.

Let judgment be entered, that the Court having inspected the record, do find that there is error in the same, and that the judgment of the County Court be reversed. Tyler, Assistant Judge, hesitated in opinion as to the second exception.

He noticed, that the plaintiff had in his declaration, in describing the land, alleged, that it was “ the same farm on which the late Joseph Wilson formerly lived, who in his life-time mortgaged the same to the plaintiff.” This implied, that the fee of the lands demanded by an existing contract, was in the heirs of the intestate Wilson, whose administratrix is set forth in the defendant’s motion or plea in abatement to have been his lessor.

The plaintiff, as mortgagee, must have been conusant of the claim of the representatives of Wilson; and as lands in this State are or may be assets in the hands of the administrator, or at least held by him for certain purposes, and for an uncertain time, to be divided among the heirs, through the administrator’s instrumentality, under a decree of the probate, the plaintiff must have had such knowledge of the tenancy by his own showing, as rendered it incumbent on him to join the lessor with the tenant; but he concurred with his brethren as a general rule, that the plaintiff in an action of ejectment brought under the 88th

section of the judiciary act, is not obliged to join a landlord with the tenant in possession, who holds by parol lease, or written lease unrecorded, unless it can be proved that the plaintiff, before the impetration of his writ, had knowledge of the existence of such lease; and that, if the tenant would take advantage of this in abatement, he must specially allegate such science in the plaintiff in his plea. Samuel Miller and Amos Marsh, for plaintiff. William C. Harrington, for defendant.