
    William Bradt, App’lt, v. Walter S. Church et al., Resp’ts.
    
    
      (Court of Appeals,
    
    
      Filed October 16, 1888.).
    
    1. Landlord and tenant—Van Rensselaer memorial lease—Covenants AND CONDITIONS ON ARE VALID.
    The land for the recovery of the possession of which this action was brought was covered by a Van Rensselaer memorial perpetual lease made in 1794. The covenants and conditions of said lease are valid, and they are binding upon the heirs or assigns of the original grantee and available to, and enforceable by the successors in interest of the original grantor.
    3. Same—Possessory action—Practice—Who should be made depend-ant.
    The defendant (Church) succeeded to the interest of Van Rensselaer, the lessor in the lease mentioned in this case, and in 1881 obtained possession of the lands in controversy under execution issued upon a judgment which awarded him their possession. That judgment was had in an action to recover possession of the real property for breach of condition in the nonpayment of the rent reserved in the lease. Jeremiah Bradt, the defendant in that action was the son of this plaintiff, and was in occupation and possession of the premises as tenant of his father. This plaintiff was not made a party to that action. Held, that the suit brought by Church was simply a possessory action and did not settle any right except as to the possession of the land. That it was properly brought against Jeremiah Bradt as occupant.
    3. Same—Only occupants need be made parties to.
    In an action to recover the possession of lands the plaintiff is not compelled to join as party defendants those not in occupation thereof. The only effect of not joining as defendant other parties than those in occupation or possession of the premises is simply to leave the question raised in the action open to controversy as to any others who may subsequently assert title or adverse rights.
    4. Same—Action of ejectment—Practice—Occupant must be made defendant.
    Where the land in controversy is occupied, no recovery can be had in an action of ejectment for non-payment of rent, unless brought against one who is the actual occupant when the action was begun.
    5. Same — Presumption that occupant holds under lease — How presumption OVERCOME.
    The plaintiff claimed title under a deed remising, releasing and quit" claiming the premises to him made in 1863, with prior possession by the grantors from 1850. Ho proof was given as to the source of the title of his grantors. On the trial it was admitted by the parties that the premises were subject to the lease of Van Rensselaer to plaintiff at the date of said lease. Held, that the lease being perpetual, every one entering into possession of the demised premises were presumed to have entered under the lease, and that this presumption could only be rebutted successfully by sufficient proof of an adverse possession at some time in,hostdity to the landlord’s title.
    6. Same—Presumption attaches to successive tenants succeeding to RIGHTS OF FIRST TENANT.
    Where the relation of landlord and tenant is once established as it was by the concession of the parties here, it attaches to whomsoever succeeds to the possession under that tenant, however remotely.
    
      7. Same—Ownership of lessor—How kept alive.
    The fact that this lease was perpetual does not affect the case. The ownership of the grantor of such a lease, is neither extinguished nor dormant. It is kept alive by the power of re-entry on non-payment of the rent, right of pre-emption in case of sale and a certain control over, and the use of the land.
    8. Same—Non-payment op rent creates no presumption.
    Non-payment of rent, or the neglect to demand or collect any in the past, creates no presumption which affects the existence of this lease.
    9. Deed op release and quit claim—Effect op—What conveyed by.
    The deed of release and quit-claim is effectual as a grant under our statutes, and a conveyance may be affected thereby, but the force and significance which attend a conveyance with covenants of title, etc., are . absent therefrom, it passes the title as the grantor held it to the grantee, and the grantee takes only what the grantor could lawfully convey.
    10. Same—Deed op release and quit-claim by lessee does not imply a HOLDING HOSTILE TO LESSOR.
    The deed of release and quit-claim made by the lessee of land covered by a manorial lease cannot be deemed as of necessity implying a title hostile to that of the landlord. It would convey a leasehold interest and holding under it would not be inconsistent with holding under the lease. The grantee will be presumed to have entered under the lease, unless he show that he brought home to the lessor or his successor in interest, knowledge of his claim to hold adversely. Earl, J., dissenting.
    Appeal from a judgment of the supreme court, general term, third department, affirming a judgment in favor of the plaintiff, entered in Albany county upon the report of a referee.
    • The facts are sufficiently stated in the opinion.
    
      Wm. Youmans, for app’lt; S. W. Rosendale, for resp’ts.
    
      
       Affirming 39 Hun, 362.
    
   Gray, J.

The lands, for the recovery of the possession of-which this action was brought, were covered by a VanRensselaer Manorial perpetual lease, made in 1794. These leases have been frequently the subject of judicial examination by the courts of this state, and by various decisions of this court, the general principles affecting them are well settled. Their covenants and conditions are valid and they are binding upon the heirs or assigns of the original grantee and available to and enforceable by the successors in interest of the original grantor. (See Van Rensselaer v. Hays, 19 N. Y., 68; Same v. Ball, id., 100; Same v. Slingerland, 26 id., 580; Same v. Dennison, 35 id., 393; Central Bank v. Heydorn, 48 id., 260).

To the interest of Van Rensselaer, the lessor in the lease mentioned in this case, the defendant Church succeeded, and, in the year 1881, obtained possession of the lands in controversy under execution, issued upon a judgment, which awarded him their possession. The judgment was had in an action to recpver possession of the real property for breach of condition, in the non-payment of the rent reserved in the lease.

Jeremiah Bradt, the defendant in that action, was the son of this plaintiff and was in occupation and possession of the premises as tenant of his father. This plaintiff was not made a party to that action and now seeks to maintain his right to eject Church, on the ground that the judgment in the other action was not binding upon him and that the fee of the premises was and is regularly in him.

Defendant Church’s action was not brought upon the covenant for the payment of rent; it was brought to repossess himself of the premises, under the right reserved in the original lease to re-enter for condition broken in the non-payment of rent. It is true that the judgment which he recovered was not conclusive on this plaintiff as to the averments of the complaint on which Church based his right of recovery; but being had against the person in actual occupation and possession of the premises, Church’s entry thereunder was lawful, and enables him to defend his title and possession against the plaintiff’s claim.

I am not aware of any rule of law which requires that in an action to recover the possession of lands, the plaintiff is compelled to join as parties defendants those not in occupation thereof. In this case the referee has found that plaintiff’s son was in possession as his tenant.

The Code of Civil Procedure provides (section 1502) that in actions to recover the possession of real property the occupant must be made defendant. Section 1503 provides that other parties having or claiming rights may be joined as defendants. The only effect, therefore, of not joining as defendants other parties than those in occupation or possession of the premises, is simply to leave the questions raised in the action open to controversy as to any others who may subsequently assert title or adverse rights. Where the land in controversy is occupied, no recovery can be had in an action of ejectment for non-payment of rent, unless brought against one who is the actual occupant when the action was begun. Martin v. Rector, etc., 101 N. Y., 77.

The suit brought by Church was simply a possessory action, and did not settle any right except as to the possession of the land. It was, therefore, properly brought against Jeremiah Bradt, as occupant. Jackson v. Rightmyre, 16 Johns., 314, 326; Van Buren v. Cockburn, 14 Barb., 118 ; Pulen v. Reynolds, 22 How., 353.

The judgment-roll in the suit, which was admitted in evidence, showed Church’s possession as re-entering under the lease.

In Jackson v. Rightmyre (supra), which was an action of ejectment, the chancellor held that as the defendant had acquired possession under the authority of a judgment at law, his entry was consequently a lawful one, and that it was not a subject for inquiry as to how it was obtained ; whether “ from the want of title or want of attention in the opposite party.” The chancellor quotes from the language of Lord Mansfield, in Atkyns v. Horde (1 Burr., 114), that “a judgment in ejectment was a recovery of the possession (not of the seisin or freehold) without prejudice to the right, as it might afterward appear, even between the same parties.”

I think, therefore, we must conclude that this defendant having come lawfully and peacefully into possession of the premises in controversy, all there is left of this case is to determine whether the plaintiff originally entered into their, possession subject to the Van Rensselaer lease, or by a good title to the fee thereof. We shall have to determine whether there was such adverse possession as by the lapse of years had ripened into a good title in plaintiff. Plaintiff claims title under a deed remising, releasing and quit-claiming the premises to him, made in 1863; with prior possession by the grantors from 1850. No proof was given as to the source of title of his grantors. On the trial it was admitted by the parties that the premises were subject to the lease of Van Rensselaer to Snyder at the date of said lease.

That lease being perpetual, under well-settled rules of law, every one entering into possession of the demised premises is presumed to have entered under the lease, and that presumption can only be rebutted successfully by sufficient proof of an adverse possession at some time, in hostility to the landlord’s title. Where the relation of landlord and tenant is once established, as it wss by the concession of the parties here, it attaches to all who may succeed to the possession under the tenant, however remotely.

In Jackson v. Harsen (7 Cowen, 323-325) Judge Wood-worth discusses and asserts this doctrine on principle and authority. In the entire absence of any proof to the contrary, the occupation by plaintiff’s grantors will be controlled by this presumption, and they will be deemed to have entered as tenants under the lease.

In Whiting v. Edmunds (94 N. Y., 309) it was held that “where the relation of landlord and tenant has been once established the possession of the latter and that of his grantees and assignees is the possession of the landlord, and not hostile or adverse (Jackson v. Davis, 5 Cow., 129; Sands v. Hughes, 53 N.Y., 293); and this is true, even where the grantee has taken a deed of the fee in ignorance of the fact that his grantor stood in the relation of a tenant, the latter denying any such relation.” Jackson v. Scissam, 3 Johns., 499.

And speaking of the presumption that the possession of the tenant continues always, in subordination to the title of the landlord, Finch, J., continues: <s This presumption may be rebutted, but, to do so effectively, and initiate an adverse holding, the tenant must surrender the possession to the landlord; or do something equivalent to that, and bring home to him knowledge of the adverse claim” (citing cases.

That this lease was perpetual, does not affect the case. These leases are of great antiquity. A discussion of their origin, seems unnecessary here; for, by more or less recent decisions of this court, their validity and effect have been settled. But it may be pertinently added, perhaps, that whether we turn to the earlier periods of the civil law, or to the latter history of the common law, we never find that it was supposed that the ownership of the grantor of such a lease, was ever, either extinct or dormant. It was kept alive (as here) by a power of re-entry on non-payment of the rent, a right of pre-emption in case of sale, and a certain control over the use of the land. By non-payment of the ground rent a forfeiture is worked and (aside from the rent) the chance of such a termination constitutes nearly the only interest left to the owner. The rights of the tenant, or grantee, were almost as extensive as those of an owner; but the obligations were always dominant. So the civil law regarded his interest; and it deemed him capable of selling the land to a buyer, who would gain the same extensive rights; but, nevertheless, with the same obligation of annual rent payment.

As to non-payment of rent, or the neglect to demand or collect any, in the past, no presumption is thereby created which affects the existence of this lease.

In the case of Jackson v. Davis (5 Cowen, 123), questions were discussed similar to those raised here. Sutherland, J., in his opinion, says: “But it is said that although a person succeeding a tenant, is to be presumed to have taken as tenant also, yet he may repel that presumption, by showing that he did not take in that character; and that the testimony of James Davis, shows that the defendant purchased the premises in question, not as a leasehold property, but in fee, absolute, * * * but whether he gave a deed with covenants of warranty, or only a quit-claim, does not appear.

Admitting, however, that he purchased and entered upon the premises under an absolute conveyance in fee, he still, in judgment of law, entered as the tenant of the Van Schaicks * * * But it is said that * * « * an abandonment of the title on the part of the Van Schaicks, is be presumed, inasmuch as there is no proof of the payment of rent or any acknowledgment of tenancy within twenty years * * * Satisfaction of the rent might possibly be presumed * * * after a forbearance of twenty years * * * But where the relation of landlord and tenant is once established, under a sealed lease, the mere circumstance that the landlord has not demanded the rent, cannot justify the presumption that he has extinguished his right to it by a conveyance of the interest in remainder or reversion to his tenant.”

In Lyon v. Odell (65 N. Y., 28), an action for rent under one of the Van Rensselaer' perpetual leases, no rent had been paid for about fifty-one years, and the question was whether the law indulged the presumption that all the rights reserved by Van Rensselaer in the lease had been released or extinguished, and it was held, on the authority of Jackson v. Davis, that there was no such presumption.

When we consider, then, what there is in this case to prove a title by possession hostile to the landlord’s title, we find nothing but non-payment of rent in the past and the quit-claim deed by the St. Johns to plaintiff. We find no open or notorious act proved, which indicated in any feature an adverse holding; or which brought notice home to the lessor, or his successors in interest, of any hostile holding.

A deed of release and quit-claim is to be deemed effectual as a grant under our statute, it is true; but, while a conveyance may be effected thereby, it is, as it says, only the release to the grantee of whatever title or interest the grantor has. The force and significance are absent which attend a conveyance with covenants of title, etc. It passes the title as the grantor held it, and the grantee takes only what the grantor could lawfully convey. May v. LeClaire, 11 Wall. (U. S.), 217, 232.

It cannot be deemed. as of necessity implying a title hostile to that of the landlord, for its language does not import or imply that much. It would convey a leasehold interest, and holding under it would not be inconsistent with holding under the lease. When the plaintiff received it he may or he may not have been ignorant of the lease and of the nature of his grantor’s holding; but, whatever his knowledge, he will be presumed to have entered under the lease, unless he can show that he brought home to the lessor, or his successor in interest, knowledge of his claim to hold adversely.

, As there is no evidence of any such act on the part of the plaintiff, or of his grantors, the plaintiff’s action must fail. He has not succeeded in proving a title to the land superior to that of defendant Church. Nor can plaintiff claim here that the title to the premises is in him under the lease. His complaint alleged ownership in fee of the premises, and the judgment at special term awarded him possession as such owner. The action was in hostility to the lease. and in denial of defendant’s rights under it. .

The order and' judgment of the general term appealed from should be affirmed, with costs, and under the stipulation of the appellant contained in the notice of appeal, judgment absolute should be rendered against them.

All concur, except Earl, J., dissenting, and Beckham, J., not sitting.

Earl, J.

(dissenting).—Not being able to agree with my brethren, I will state briefly my reasons for dissent.

It does not appear that either Van Rensselaer or his lessee was ever in actual possession of the land in question. From the terms of the lease, and our knowledge of the country, we may infer that at the date of the lease, the land was wild and unimproved. It does not appear that any one was ever in possession of the land under the lessor or lessee, or that any one in possession ever recognized the title of either, or that any rent was ever paid under the lease. The inference from all the facts is, that no rent was ever, in fact, paid. The plaintiff, and those under whom he claims had been in possession of the land under claim of right for more than thirty years. What is there to defeat their title by adverse possession? Absolutely nothing. There is no proof ■that they were in possession under the lease, or that they ever recognized it. Suppose the lessee had brought this action, what answer could he have had to the adverse possession? ■Clearly none. And how could the lessor have a better answer? But it is said that there is some sort of presumption that they were in possession under the lease in such way that adverse possession could not run against the lessor. Upon what principle can such a presumption against the actual facts as they appear be raised? Can it be the law that when a lease has once been executed, all persons thereafter found in the adverse possession of the land must be presumed to be in under the lease? There is absolutely no case holding or hinting at such a doctrine. It is not found in the cases of Jackson v. Davis, 5 Cowen, 123, and Jackson v. Harsen, 7 Cowen, 323. In each of those cases, the party in possession claimed under or from the lessee, and it was held that he took the position of the lessee, and could not, therefore, dispute the title of the landlord, or set up adverse possession against him. But they are far from holding that the relation of landlord and tenant may be presumed without any proof, and thus what would otherwise be an adverse possession be defeated. This case would have been analogous to those if the title of Bradt had, by proof, been in some way connected with the title of the lessor.

I, therefore, favor a reversal of the order of the general term, and an affirmance of the judgment entered upon the report of the referee.  