Brewster v. Striker

This is an action of ejectment tried on the 16th September, 1845, and a verdict taken, subject to the opinion of the court. The case has been twice argued before this court.

The plaintiff claims as a purchaser at sheriff’s sale, on the 16th November, 1842, of the interest which Striker, senior, had in the premises claimed, on the 14th February, 1840. Morrison is acquitted, and Thomas holds under Morrison, who had a lease for five years, from 1st May, 1841; Striker, senior, being the lessor.

I. It appears to me that Thomas, the tenant in possession, cannot deny the right or title of the lessor for five years, or a title by possession. This is not selling merely the interest of a tenant at will or sufferance, but the legal estate of one who, by his acts, is at all events to be deemed the lessor, having a legal interest commensurate with the lease granted by him. If the judgment did not bind, or was not a lien upon a leasehold interest of a lessor, from the time of docketing, the lessor’s interest could nevertheless be sold, as it was, under the execution on the 16th November, 1842. The lessor’s title for five years is at least presumptive upon him and his tenants, and it could be sold under execution. This is not selling the lessee’s *333interest, but the right of the lessor, which right or title is presumptively, if not conclusively, established for the time embraced in the lease. The tenant held under this lease, which had not expired when this action was tried Actual possession is prima facie evidence of legal title. The plaintiff comes into exactly such a possession as the debtor had. (2 Black. Com. 196 ; 4 Cow. 602 ; 5 Wend. 248.)

II. The fact also appears that the title of Striker, senior, rests upon Hopper’s will of September, 1815, under which the trustees could have held possession and paid over to Striker only his share of the rents. But the trustees are all dead, and since 1826, Striker has been in possession. The presumption then arises from the lease and possession by Striker, that the trustees have released, and that Striker had the title in fee, which could be sold by the sheriff. This cannot be regarded as the sale of a mere equitable interest, or the interest of a tenant at will, or by sufferance, which are not liable as such to sale on execution. (1 R. S. 722, § 5.) This is the sale of the presumptive legal estate or title in fee. (9 Cow. 81-85 ; 10 Johns. 223.)

III. legal presumptions may be rebutted, but the defendants have not afforded sufficient proof. The will alone is not conclusive. It is not shown by the acts of the parties that Striker only held a lease, or possession, under the trustees, at will or by sufferance. It is not shown that the trustees acted since 1826, and received the rents and paid them over to the devisees, in execution of the will.

It is not shown that the trustees in fact did not release to Striker.

It is not shown that Striker’s lease to Morrison was ever surrendered by the latter, or that Striker, Morrison or Thomas ever attorned as tenants to the trustees. On the contrary, the acts and possession of Striker, and the silence of the trustees during their lives, indicate that the latter had relinquished and released to the former; we cannot presume a possession by Striker under the trustees, when the acts of the parties do not countenance such presumption.

*334IV. A plaintiff in ejectment must recover on the strength of his own title, but this does not preclude him from recovering on a presumptive title in fee, nor from holding a party concluded by his own acts from denying that he had an estate dn fee or for years ; and a tenant under such party is also bound by his landlord’s acts.

V. No trustee under the will of John Hopper has been made a defendant in this suit; if any person now exists who could as trustee, or successor to a trustee under the will, make a valid claim to the estate. Whatever might be the true construction of the will as to the legal estate having been in the trustees or devisees, we cannot disregard the presumptions arising from the silence of the trustees, and now hold, without their claim or any intervention by them in this suit, that the successors or executors of the trustees hold the legal estate. When such executors of any trustees who acted and were duly appointed by the trustees according to the will, bring their action, or come in and support their claim, it will then be proper to decide upon their rights. It does not appear that the trustees ever acted since 1826, or at their decease, according to the will, appointed successors to execute Hopper’s will. We have no evidence that any person but the plaintiff has a right or disposition to claim the interest of Striker, except Striker himself, and his tenant, and their pretensions by way of defence are, I think, unfounded and unsupported.

VI. Mr. Striker, junior, has shown no right available in any way in this suit.

VII. The chancellor (in 2 Paige, 388) has not considered or decided the points arising in this suit. And if his, views of the construction of the will are correct, it does not follow that the trustees could not release to the devisees; nor that the plaintiff in this suit could not, under the circumstances, recover as against Striker, senior, or those holding under him.

VIII. The other ejectment suit of the same plaintiff against Mr. Striker, senior, differs in some of the facts; Mr. Striker is alone the defendant, and he and the other devisees, under the will of Hopper, partitioned the premises in 1821, and executed *335releases. The premises in. dispute in that suit are part of the portion assigned to Striker, which he has been in possession of ever since. The presumptions of his title in fee, and of a release by the trustees, are stronger in that case, and are not rebutted. The partition is not binding upon the trustees, who were not made parties; but it does bind the parties, and their long possession since, leads to the presumption that the trustees acquiesced and released.

IX. My first impressions were clear, that the will vesting the estate in the devisees, was not controlled by its other provisions, giving powers to the trustees; but since the re-argument I am less confident in that opinion. If, however, we concede that the trustees were by necessary implication to be regarded as originally having the right, under the will, to hold the legal estate in active trust, for the benefit of the devisees, I still retain the opinion that the plaintiff is entitled to recover in these suits upon the grounds above stated.

X. A plaintiff in ejectment claiming the premises in fee, is entitled to recover, though he only shows title by possession. (9 Wend. 223 ; 12 Wend. 171.) It is clearly an amendable error. (17 Wend. 80, 81 ; 20 Wend. 635.)

Motion to set aside the nonsuit denied. (a)

To enable a plaintiff in ejectment to recover, he must have a valid and subsisting interest in the premises claimed. (2 Rev. Statutes, 400, § 3, 3d edit.) And he is bound to specify in his declaration the nature of that interest: whether he claims in fee, for his own life, the life of another, or for a term of years, specifying such lives or the duration of such term. (2 Rev. Stat. 3d edit. 401, § 10.) The plaintiff claims the premises in fee, and he may recover, if it appear that Striker had such an estate on the 14th day of February, 1840. If an estate in fee existed in Striker at that time, it was bound by the judgment, and passed by the sale and the sheriff’s deed *328to the plaintiff. (2 Rev. Stat. 454, § 6 ; 3 Watts, 223 ; 2 Yates, 443 ; 3 Cai. 188 ; 3 Wash. C. C. Rep. 546 ; 1 Marsh. 68.)

Striker was in possession of the whole of the premises claimed at the time of the recovery of the judgment, for the leases to Heath and Morrison were made subseqxxently. This was prima facie evidence of an estate in fee. The possession of land raises the presumption of such an estate. (5 Taunt. 326 ; 7 Wheaton, 59 ; 2 Black. 196.) It was a presumption, moreover, which the defendants were estopped from disputing. Striker was estopped, by his participation in and assent to the partition, from denying that he had an estate in fee in the portion allotted to him, and by his leasing to Heath and Morrison, from setting up that he had no estate in the portion demised to them, and they were estopped from disputing his title. (4 M. & S. 347 ; 1 Bingh. 147 ; 2 Ad. & E. 17.) If the plaintiff, therefore, had rested upon this state of facts, he would have been entitled to recover. But he did not rely upon Striker’s possession. He introduced the will, and has shown by it, that as respects the premises in question, Striker is but a cestui que trust, and that the legal estate is in the executors of Hopper.

Under the will, the executors took a trust estate by implication of law, which continued in the trustees, or the survivor of them, or the executors of the survivor, during the lives of the three grandchildren. They were authorized to make repairs, and lease and rent the real estate from time to time, on such terms as they should deem most advantageous to the heirs, and were to pay the rents, issues and profits to the heirs annually, in equal proportions. This was not a mere leasing power. Where something is to be done by the trustees, which makes it necessary that they should have the legal estate, such as the payment of rents and profits to another’s separate use, or any power of management, they take the legal estate. (Bing. N. C. 573 ; 6 Ad. & E. 206 ; 2 Williams’ Saunders, 11, note.) Such is the nature of the trust created by this will. The trustees are to keep part of the land in repair, and pay the rents and profits over to the heirs. It is an active trust, which was valid before the revised statutes, and *329vested the legal estate in the executors. (2 Paige, 387 ; 3 East, 553 ; 1 Eq. Cases Ab. 383 ; 9 East, 1 ; 2 Taunt. 109 ; 4 Taunt. 772 ; 3 Brown’s Parl. Cases, 178 and 458 ; 2 Term Rep. 444 ; 1 Brown’s Ch. Cases, 14 ; Ambler, 93 ; 1 Jarman’s Powell on Devises, 221, note 1.) The absence of express words of devise in the will is not material, for if it be essential to the execution of the trust, that the trustees should have the legal estate, they take it by implication of law. (6 Ad. & E. 206 ; 2 Burr. 860 ; 2 Jarman’s Powell on Devises, 199.) The plaintiff, therefore, by showing that the legal estate is in the executors, has destroyed the presumption of a seizin in fee, which the law implies from the fact of possession. (9 Cow. 86.) The defendants were estopped from showing it, but the plaintiff, by introducing the evidence on his part, has waived the estoppel. (1 Salk. 276 ; 1 Dev. 208 ; 2 Dana, 251 ; A. K. Marsh, 145 ; 9 Cow. 86.)

It may be claimed that, as against the defendants Thomas and Morrison, the plaintiff is entitled to recover upon the ground of priority of possession; for it has been said, that mere priority of possession, though all other title be expressly disproved, is sufficient in ejectment to enable the plaintiff to recover against every one but the party having the true title. (Catteris v. Camper, 4 Taunt. 547, note ; 2 Saund. 111.) The rule is stated a little too broadly by the reporter, in his note to this case, in Taunton. Priority of possession is undoubtedly sufficient where nothing but possession is shown by either party, for the prior possession carries with it the presumption of a legal title. It is but a presumption, however, which may be repelled, and which the plaintiff in this case has repelled, by showing that the legal estate is in the executors. (2 Roscoe on Real Actions, 488 ; 2 Term Rep. 149.)

There is no ground for presuming that the executors released to the heirs. Artificial presumptions are allowed in certain cases, where the fact to be presumed is consistent with the power conferred, as where an act is directed to be done, and such act is a necessary link in a chain of title. (6 Bing. 179.) In such case, a jury may presume as a matter of fact that the *330act was done. (2 Cromp. and Jerv. 461.) But where it would be repugnant to the power given, no such presumption can arise. The trustees had no authority under the will to release to the heirs. A release by them would be inconsistent with the nature of the trust created, and we cannot presume that an act was done which would amount to a breach of the trust, or be contrary to the duty of the trustees. (8 East, 267.) It might be presumed, consistently with the will, that the executors leased to Striker, but this would not avail the plaintiff, for in the absence of any evidence of the duration of the term demised, we could presume nothing more than a tenancy from year to year, (2 Rev. Stat. 3d edit. 29, § 1,) which ceased on the first of May following the sale of Striker’s interest, and before the commencement of these suits. If any presumption can be drawn from' Striker’s possession, it is that he was a tenant at will or at sufferance, having a mere chattel interest in the land, which was not liable to sale on execution. (2 Rev. Stat. 3d edit. § 5.)

The plaintiff having failed to show that he has an estate in fee, cannot maintain this action. Even if a plaintiff might recover a lesser estate than that declared for, he has not shown that he lias any interest which could be the subject of a recovery in ejectment It is provided by the statute, not only that the plaintiff shall specify in his declaration the nature of the estate he claims, but that the verdict shall express what estate he is entitled to recover, whether in fee for his own life or the life of another, stating such lives, or for a term of years specifying the duration of such term. (2 Rev. Stat. 3d edit., 403, §§ 31, 7, 10.) Where, the action is not brought forthe recovery of dower, these are the estates which may be recovered; and no such interest appearing in the plaintiff, the nonsuit should be affirmed.

The partition made between the parties, and the possession under it by Striker, would give him no estate subject to execution, if the estate did not vest in him under the will before such partition was made; and I should rather adopt the conclusion that the legal estate was in the executors under the *331will, they having a right to rent or lease the premises, collect the rents, and pay over the proceeds equally to the heirs.

How far the subsequent limitations of the estate may be void, or what estate the survivors would take on the death of either of the grandchildren, is not material to the decision of this case ; the question now being solely as to the legal estate of the defendant, Striker, at the time of the purchase by the plaintiff.

Upon the former argument, I was of the opinion that the plaintiff was not entitled to recover, and my views have not since been changed. My conclusions are :

1. That the plaintiff can only recover on showing a title in himself, without reference to the validity of the defendant’s title.

2. That the plaintiff having proven the will of Hopper, under which the property passed, is bound by the title which he thereby establishes ; and if he shows that it is not in Garrit H. Striker, he shows no legal title to the premises in himself.

3. That by the will of Hopper, the legal estate during the lives of the grandchildren, is in the trustees, and not in them, and that they cannot alienate the property during their lives.

4. That a conveyance in fee by the trustees is not to be presumed, because it is inconsistent with the trust—they having no authority to convey to the cestui que trust during the lives of the grandchildren.

5. That a lease cannot be presumed for a longer period than a year, unless such longer term is proven.

6. I have had more difficulty in the remaining point, viz.: whether the plaintiff could recover by merely proving Striker to be in possession. If there was no other evidence in the cause, I think the plaintiff would be entitled to recover on such proof, because title by possession is prima facie evidence of a fee. (9 Wend. 223.) And if the plaintiff had rested on mere proof of possession, and' of the leasing and proceedings in partition, the defendant would have been estopped from denying that he had title. But if the plaintiff goes further, and shows *332title in another, inconsistent with the title of the person in possession, the case then is entirely changed. The question then is not whether this is such an outstanding title as the defendant could set up for himself, but whether the plaintiff has not shown the fee out of himself. (9 Cow. 86.) If he has, then, although the defendant maybe in possession as a tenant at will or by sufferance, or without title, or as in this case, being the cestui que trust while the legal estate is in another, the plaintiff has shown that there is no estate owned by the defendant which he has a right to, or which he can claim. Although upon this point I feel some hesitation, yet my conclusion is, that the plaintiff having shown a legal estate to the premises to be in the trustees, he is not entitled to recover against the cestui que trust, although in possession.