
    Isaac R. Pharis, App’lt, v. R. Nelson Gere, Resp’t.
    
    
      (Court of Appeals,
    
    
      Filed October 2, 1888.)
    
    1. Lunatic—Committee of—Has no foweb ovbe beau estate of lunatic.
    The committee of a lunatic has no title to or interest in the latter’s real estate. He becomes its mere custodian or bailiff, and is such solely as the agent or representative of the court, and has no independent power to dispose of the real estate in any manner whatever.
    2. Same—Fobcible detaineb—What amounts to.
    The two salt blocks, No. 22 and No. 23, in question, were about thirty feet apart, but within the same enclosure. They were held in a common ■ownership, though by separate leases from the state. They had been used and operated together, but could be utilized separately, and had no necessary connection. The owners of the two blocks were the plaintiff and his brother, who was a lunatic and in charge of a committee of his person and estate. The plaintiff had executed a lease of said blocks to the Syracuse Fine Salt Company, but hesitated to deliver it, and placed it in escrow, in the hands of an officer of the company, to become operative only upon conditions. The committee of the lunatic, without authority of the court, had executed a lease for ten years, but possession of the blocks had not been given, and was withheld. In this emergency, the said company, by resolution, directed the defendant to take possession of the two blocks in question. The defendant, acting under this resolution, went to the enclosure of these blocks and entered it. He removed plaintiff’s lock .and put on his own. Thereafter, he met Pharis at block 22, and a violent ■and personal struggle for possession and control occurred. At the commencement of this personal struggle, he notified the plaintiff that he took possession of that block and block 23, Held, that although the violence ■occurred on block 22, and more than mere words is needed to make a forcible detainer, yet as the violence was aimed at the possession of both blocks, and was employed to effect that possession, and did in the end secure it, the jury were warranted in finding a forcible detainer of the whole property within the enclosure, and it was no error for the court to refuse to charge the contrary.
    $. Same—Not within the authobity of committee to make a lease.
    Under the form of the lease, the committee of the lunatic assumed to put the latter’s property in the complete control of a corporation, subject to its business successes or failures as far as compensation was concerned, and reserving in the main no real rent, and even the nominal rent to be fixed by others, and contracted solely for speculative results. The lease ran for ten years. Held, that it was a lease only technically and in form; that substantially it was a transfer of the blocks for the period named upon a consideration speculative and contingent and doubtful, and made the estate a partner in a corporation enterprise; that it was not within the authority of the committee to make a lease independently of the court.
    Appeal from a judgment of the supreme court, general term, fourth department, reversing a judgment in favor of the plaintiff entered upon a verdict rendered by a jury at the circuit.
    The facts are stated with sufficient detail in the opinion.
    
      Louis Marshall, for appl’t; Geo. F. Comstock, for resp’t.
    
      
       Reversing 36 Hun, 639, mem.
      
    
   Finch, J.

The action was brought to recover damages for a forcible detainer of two salt blocks, identified in the evidence as numbers 22 and 23. The plaintiff had a verdict, which the general term had reversed. On the trial, the court was asked to charge that there was no evidence of a forcible detainer of block 23. The request was refused and an exception taken to the refusal, and it is upon that exception that the appellate court, so far as its opinion indicates, founded its order for a new trial. We are not contented with that decision. The argument at the bar, and a deliberate study of the proofs have brought us to a contrary conclusion.

The two blocks were about thirty feet apart* but within the same enclosure. They were held in a common ownership, though by separate leases, from the state. They had been used and operated together, but could be utilized separately, and had no necessary connection. Both were out of repair, and required preparation and expenditure to put them in condition for use, block 23 being much the most dilapidated and in need of the most extensive repairs. The owners of the two blocks were the plaintiff and his brother who was a lunatic and in charge of a committee of his person and estate. The Syracuse Fine Salt Company was a corporation duly organized, the ultimate purpose of which was to control the salt manufacture of the entire reservation. This was planned to be effected by leasing all the salt blocks, and operating them under one management and so controlling the supply and preventing variation or diminution of prices. The success of the project depended upon the ability to bring all the salt blocks into the combination, and so master the market. In carrying out the plan a difficulty was encountered as to blocks 22 and 23. The plaintiff had executed a lease, but hesitated to deliver it, and placed, it in escrow in the hands of an officer of the company, and to become operative only upon condition. The committee of the lunatic, without authority of the court, had executed a lease for ten years, but possession of the blocks had not been given, and was withheld. In this emergency the Fine-, Salt Company passed a resolution directing the defendant to-take possession of blocks 22 and 23. The evidence shows that this was the only resolution of the kind passed by the corporation, and indicates the knowledge of its members-that there was a difficulty to be overcome, and their determination to get possession, at all hazards, and defend it as-best they could.

Under this resolution the defendant acted. He so testifies. The direction was to take possession of both blocks and what he did was adequate for that purpose and effected that precise result. He went to the enclosure and entered it. He carried with him the means of forcing the lock which he expected to encounter and a new lock to supply its place and give him control. He removed plaintiff’s lock and put on his own. Thereafter he met Pharis at block 22 and the-violence and personal struggle for possession and control which both sides detail with but few and unimportant differences occured. That violence was aimed at the possession of both blocks and secured the possession of both. The defendant testified “it was in my mind to take possession of the blocks;” speaking of his men he added “I went there to see that they took and kept possession of the blocks;” he told Pharis that he was not able to cope with him or the salt company “in holding on to that property;” he said “if these blocks hadn’t come in there would have been no company; the company wouldn’t have run if they hadn’t been in.’’ At the commencement of the personal struggle he notified the plaintiff according to the latter’s statement that “he took possession of that block and block 23.” While it is true that the violence occurred on block 22 and more than mere words are needed to make a forcible detainer, yet where the violence was aimed at the possession of both blocks and was employed to effect that possession and did in the end secure it the jury were warranted in finding a forcible detainer of the whole property within the enclosure and it was no error that the court refused to' charge the contrary.

But the reversal by the general term is now defended upon the ground that the lease from the committee of the lunatic was valid so far at least as to justify the entry of the defendant and repel the charge of a forcible detainer .

It is conceded that the committee had no right to lease the interest of the lunatic by virtue of any order of the court, but it is asserted that such right existed where the term was not longer than five years by force of the common law and the statute, and while this lease was for ten years, it was nevertheless good as a lease from year to year, and justified the possession taken.

I am not satisfied that the committee of a lunatic ever had the common law right which is asserted. A survey of the earlier authorities, cited quite fully upon the briefs of both parties, has led me to the conclusion that the committee of a lunatic has no title to or interest in the latter’s real estate; that he becomes its mere custodian or bailiff, and is such solely as the agent or representative of the court; and has no independent power to dispose of the real estate in any manner whatever. In substance that, at least, is the doctrine of this court.

In the Matter of the Application of Otis (101 N. Y., 581) it was declared that the committee had no interest in the property; that his possession was the possession of the court; and his authority that of its agent acting under its direction. The provisions of the statute in force at the time fully accord with this doctrine. Laws of 1874, chap. 446, p. 571. Section 1 of title 2 vests in the supreme court the care and custody of lunatics and their estates. The committee thus becomes merely the officer or agent of the court, and has no authority except such as comes from that source, or is vested in him by statute. If the real estate is to be sold, application must be made to the court and its order obtained. Section 6. If a lease is necessary to ac‘complish specified results the court is expressly authorized to order it (§ 9); and all sales, leases, etc., made by the order of the court are declared to be as valid and effectual as if made by the lunatic himself. So far, no authority is found for the lease of real estate except by direction of the court as custodian and trustee of the estate; and the statute not only reserves that authority to the court, but by a very plain implication denies its existence elsewhere. The committee is but the hand of the court, moving only as moved by the dominant will; unless by an implication derived from section 27 the hand is furnished with a brain or will of its own.

That section reads: “The real estate of any idiot, lunatic or person of unsound mind, or person incapable of conducting his owTn affairs in consequence of habitual drunkenness shall not be leased for more than five years, or mortgaged or aliened or disposed of otherwise than herein directed.” The respondent claims that the phrase “otherwise than herein directed,” relates as well to leases for more than five years as to mortgages and sales, and so the order of the court is needed only where a lease is proposed for a longer term than five years. I seriously doubt that ■construction. All authority to deal with the lunatic’s estate had been previously vested in the court, and none outside of its direction given to the committee; and the final provision seems rather intended to prohibit absolutely leases for a longer period than five years even by the order of the court, and not by a doubtful and uncertain implication to give to the committee an independent authority within that limit.

In the revision accomplished by the Code of Civil Procedure the language was changed for some reason about which we need not now inquire ; nor is it essential even to finally determine the question of construction raised upon the terms of section 27 of the act of 1874, for what is here termed a lease of the two salt blocks, and was put in that form, was in reality a contract of a very different character, and going so far beyond the characteristics of an ordinary lease as to be void without the authority of the court, even if a letting in the customary manner for a short term was within the independent authority of the committee. In the guise of a lease the two salt blocks were put into a combination to control the entire manufacture, and in such manner that the rental was dependent upon the success of -the enterprise, and was something or nothing as its affairs should prosper or prove unfortunate. The lease put in evidence provides for the payment by the salt company of an annual rent of two per cent upon a valuation of the premises to be made as thereinafter set forth, and which valuation was to be indorsed on the lease. No such mode of valuation is described, and no such indorsement appears ever to have been made. Upon plaintiff’s lease never becoming operative, there appears the detail of the contract actually made, which probably was common to all the owners of salt blocks, and which, perhaps, we ought to assume was applicable to the committee’s lease in order to save it from destruction as inchoate and uncompleted. That detail provided that the average value of each salt block should be $3,000 ; and the special value of each one separately should be fixed by eleven appraisers to be chosen by the salt company, the estimate of any eight of them to be final. The two per cent thus was upon a valuation to be fixed by persons chosen wholly by the salt company, in whose selection the lessor was to have no voice, and for whose arbitrary judgment there was to be no remedy. If we take the average valuation, the two per cent payable was sixty dollars,for each block ; and since the lessors out of this were to pay their own taxes, and insurance if they had any, and take their property back with the wear and dilapidation of a season’s use, it is evident that the fixed rent was merely nominal and not the real consideration of the contract. And so there was further stipulated what was denominated a contingent rent. From the earnings of the salt company all expenses of the business were to be deducted, including the two per cent of fixed rental and interest on money borrowed by the corporation for the purposes of its business, and from the balance was to be first deducted ten per cent upon the company’s capital paid in or secured. If anything then remained it was to be divided among the block owners to the limit of eight per cent upon their respective valuations.

If any surplus still remained it was to be divided pro rata between capital and valuations. It is thus apparent that, under the form of a lease, the committee of the lunatic assumed to put the latter’s property in the complete control of a corporation, subject to its business success or failure so far as compensation was concerned, reserving in the main no real rent and even the nominal rent to be fixed by others, and contracting solely for speculative results. Whatever may be said as to an independent power of a committee to make an ordinary and customary lease for a short term, I have no doubt that a contract like the one before us, running for ten years, tying up the lunatie’s estate to the fortune of an untried experiment, never was, either at common law or under the statute, within the authority of a committee acting independently of the court. It was a lease only technically and in form. Substantially it was a transfer of the blocks for the period named upon a consideration speculative, contingent and doubtful, and making the estate a partner in a corporate enterprise so far at least-as its possible profits were concerned and perilling its rental value upon the fortunes of the enterprise. The court itself might well have hesitated had its authority been sought, but no technical argument founded upon the form of a lease, can bring this most unusual and extraordinary contract within the independent authority of a committee. If by possibility the length of the term could be rejected there would still remain the inherent character of the contract beyond the committee’s authority.

A further effort to sustain the reversal of the general term was founded upon the partition proceeding instituted by the plaintiff. The judgment in that action was not pleaded as a bar to this nor were the parties the same.. Neither the present defendant nor the salt-company were parties when it was rendered and they were in no manner bound by it. As evidence of possession by plaintiff during the alleged detainer his complaint was admissible, but the salt company’s answer alleged possession by it and the-question became one of fact upon all the evidence in the case. ■

Some other questions have been examined but without enabling us to sustain the reversal.

The judgment of the general term should be reversed, and that of the circuit affirmed, with costs.

All concur, except Huger, Oh. J., not sitting.  