
    Van Rensselaer vs. Owen.
    The section of the Revised Statutes, providing that “ if the right or title of a plaintiff in ejectment espire after the commencement of the suit, but before trial, the verdict shall be returned according to the fact; and judgment shall he entered that he recover his damages by reason of the withholding of the premises by the defendant, to he assessed; and that as to the premises claimed, the defendant go thereof without day,” does not apply to an action of ejectment for the non-payment of rent, brought by the plaintiff as devisee of the lessor, against the defendant as devisee of the lessee, where the plaintiff, after the commencement of the action and before trial, conveys to third persons all his right and interest to and in the claims involved in the action, and in the premises in controversy.
    The plaintiff's title, in that section, has reference to the estate or interest in the premises, which for the time being is in the possession of, or represented by, the plaintiff and not merely to the person who is at the time the owner of the estate. It is the title upon which a plaintiff seeks to recover.
    
    If the estate expire, that is, cease or come to an end, the defendant should, as to the premises claimed, go thereof without day, and the plaintiff recover his damages for the unlawful withholding, up to the estate terminated; but if the estate continues to exist, though in other hands, the defendant should he permanently discharged from liability therefor; while the plaintiff if he recovers them, recovers them as trustee in fact of him who since the commencement of the action has become the real party in interest.
    
      PPEAL from a judgment ordered at the circuit, on a trial before the court without a jury. The action was brought to recover the possession of real estate. It appeared upon the trial that on the 28th day of January, 1792, Stephen Van Eensselaer, the father of the plaintiff, and Joseph Owen, the father of the defendant, executed an indenture under seal, by which the form granted to the latter in fee, reserving the rents mentioned below, certain lands described in the complaint, situated in the town of Berne, in the county of Albany, which were occupied by the defendant at the commencement of this action, and to recover the possession of which this action was brought. In that indenture Owen, for himself, his heirs and assigns, covenanted to pay to the said Van Eensselaer, his heirs and assigns, yearly, on the 2d day of January, twenty-six skipples of wheat, four fat fowls, and perform one day’s service with carriage and horses, to be delivered and performed at the mansión house of said Van Eensselaer, in Watervliet. The indenture also contained the usual claims, giving the right of re-entering to the grantor, his heirs and assigns, in case of want, of sufficient distress, and also in case of non-payment of the rent by Owen, his heirs or assigns.
    Owen entered, under said grant, and occupied the premises, paid rent, and died, in February, 1841, devising the premises so granted, to his son, the defendant, who had occupied them ever since. Van Eensselaer died in January, 1839, devising all his lands, tenements, hereditaments, real estate, rents, &c. in Albany county, to his son, the plaintiff. On the 2d of January, 1864, a little before sunset, the plaintiff, through his agent Lansing, who acted under a power, of attorney, dated .February 24,1852, made a formal demand, at the front steps of the mansion house mentioned in the indenture, for the rent falling due on that day, and the rent was not paid, nor the demand complied with.
    It appeared that on the 2d day of March, 1862, the plaintiff made a contract with reference to this lease, among others, with James Kidd and others, and in May, 1864, after this action was commenced, conveyed and .assigned to James Kidd and Peter Oagger all his claims in this action, and in the premises in controversy.
    The defendant moved to dismiss the complaint, to which decision the defendant excepted. And the judge having found in favor of the plaintiff, the defendant excepted to such finding.
    
      A. Bingham, for the appellant.
    
      8. Hand, for the respondent.
   Hogeboom, J.

So far as I can discover, all the points raised by the defendant on this appeal have been decided against him, either in this court or the Court of Appeals, except that arising on the deed of conveyance made by the plaintiff to James Kidd and Peter Cagger, on the 2d of March, 1864, (after the commencement of this action,) conveying to them all his right and interest in the claims involved in this action, and in the premises in controversy. On this point I entertain an opinion unfavorable to the defendant, and cannot concur in the position taken by him, that the plaintiff’s title had expired, and that the complaint should have been dismissed.

I will briefly express my reasons for reaching this result. The position in question, is founded upon that section of the Kevised Statutes which provides that if the right or title of a plaintiff in ejectment, expire after the commencement of the suit, but before trial, the verdict shall be returned according to the fact; the plaintiff recover his damages for the unlawful withholding of the premises; and that as to the premises claimed, the defendant go thereof without day. (2 B. 8. 308, §§ 24, 31.)

The construction to be given to this language turns upon the meaning to be applied to the words “ the right or title of a plaintiff,” and the word “ expire.” The. plaintiff’s title, in this connection, has reference, in my opinion, to the estate or interest'in the premises, which for the time being is in the possession of, or represented by, the-plaintiff, and not merely to the person who is at the time the owner of the estate. It is, as expressed in Lang v. Wilbraham, (2 Duer, 171,) “the title upon which the plaintiff seeks to recovery

If the estate expire, that is, cease or come to an end, there is reason for saying that as to the premises claimed, the defendant should go thereof, without day, and. the plaintiff recover his damages for the unlawful withholding up to the time the estate terminated. But if the estate continues to exist, though in other hands, (as by alienation, descent, devise or otherwise,) there is no good reason for saying that the defendant should go thereof without day ; that is, be permanently discharged from liability therefor, by the verdict of a jury, and the judgment of the court; while the plaintiff, if he recovers them, recovers them as trustee in fact of him who since the commencement of the action has become the real party in interest.

This seems to me the sensible construction of this language, and it is confirmed by the very next section, (2 B. S. 308, § 32,) which provides that the action shall not abate by the death of the plaintiff, but the same proceedings shall be had as in other actions, to substitute the names of those who may succeed to the plaintiff’s title. In such a case, (to wit, in case of death,) it is no less true than in the case of a volun-' tary alienation of the estate, that the title of the particular plaintiff has expired. Moreover, this construction' harmonizes better with other statutory provisions, and with the general analogies of the law.

The condition of the law prior to the Revised Statutes seems to have been in accordance with the rule now claimed by the plaintiff. In Jackson v. Leggett, (7 Wend. 377,) timbead note is : “A conveyance by a lessor in ejectment, after suit brought, to third persons in trust, is no bar to a recovery.” And in the opinion of the court, {Id. 380,) it is said : “ The conveyance by Dubois, after suit brought, does not prevent a recovery in his name. In Frier v. Jackson, (8 John. 507,) it was held that where all the lessors died pending the suit, the suit did not abate, but might be prosecuted for damages and costs.”

• In the head note to Wilkes v. Lion, (2 Cowen, 334,) reference is made to the collection of authorities cited in the case, {at pages 355, 356,) to show that if the interest of the plaintiff’s lessor expire after the commencement of the suit, and before judgment, he shall have judgment and execution for his damages, but not for the land.

In Jackson v. Davenport, (18 John. 302,) the court say, in their opinion : “ This suit was brought before the termination of the life estate, and it appears by the plaintiff’s own showing, not only that his estate is ended, but that the defendant has the reversionary interest. The plaintiff, then, has no title to turn the defendants out of possession ; but he has a title to the mesne profits, and the costs of this suit, and must, therefore, have judgment to enable him to recover them.”

It would appear from the notes of the revisers that the sections (31 and 32) heretofore discussed, incorporated by them into the Eevised Statutes, were not supposed to introduce a new rule, but to be substantially declaratory of the existing law. (5 N. Y. Stat at Large, 441.)

Let us now turn to the provisions of the Code. Section 121 of the Code declares that no action shall abate by the death, marriage or other disability of a party, or by the transfer of any interest therein, if the cause of action survive or continue. In case of transfer of interest otherwise than by death, marriage or other disability, the action shall be continued in the name of the original party, or the court may allow the substitution of the party to whom the transfer is made. The provisions of this section in the case of the death of parties, and probably in other cases, have been frequently applied to actions of ejectment. (St. John v. Croel, 10 How. 253. Waldorph v. Bortle, 4 id. 358. Ash v. Cook, 3 Abb. 389. Putnam v. Van Buren, 7 How. Pr. 31.) And in various actions where an assignment of the cause of action has been made pendente lite, the same rule has been applied. (Howard v. Taylor, 11 How. Pr. 380. McGown v. Leavenworth, 2 E. D. Smith, 24. Murray v. Gen. Mu. Ins. Co. 2 Duer, 607. Harris v. Bennett, 6 How. 220. Sheldon v. Havens, 7 268.) As the Court of Appeals decided, in McKee v. Judd, ( 2 Kern. 622,) that all demands for injuries to property are assignable, and the Supreme Court decided, in Foy v. Troy and Boston R. R. Co. (24 Barb. 382,) that when so assigned, the action is properly brought in the'name of the assignee, can it be doubted that under section 121, if a motion had been made in the present case, after the deed to Kidd and Cagger, to substitute them as plaintiffs, the court would have been empowered to grant such a motion.

The only adjudicated case relied upon to support the construction of section 31 of the Revised Statutes, claimed by the defendant, is that of Lang v. Wilbraham, (2 Duer, 171.) If this were a direct adjudication in favor of the construction contended for, I should be prepared to overrule or disregard it; but it is far from being so. That was an action of ejectment, brought by an heir at law of a testator, against a party in possession, the testator having devised his real estate (the premises in question, with others) to executors in trust, until the youngest son became of age, and also vested them with a power to sell, and directed a distribution of the proceeds of the sale among his children. The executors had leased for a term exceeding the duration of their trust estate, and disregarding such lease, one of the sons (apparently the youngest) had brought ejectment. The court held the suit well brought, but after its commencement the surviving executor exercised the power to sell, and sold the property to a third person. The court held that under section 31, of the Revised Statutes, before quoted, the title of the plaintiff had expired, and that the provisions of that section took effect; doubtless upon the theory that the lawful exercise, by the executor, of the power of sale conferred by the testator, terminated the interest of the plaintiff in the real estate as such, and was the exercise of a paramount potver, derived not from the plaintiff, but from a higher source; that the plaintiff could not, after the exercise of such a power, by the executor, have effectually alienated the power himself, and must content himself with participating in the proceeds of the sale: Under the doctrine of equitable conversion, his real estate was turned into . personal property. (See Lang v. Ropke, 5 Sandf. 363, for a fuller statement of the provisions of the Lang will.)

[Albany General Term,

September 17, 1866.

It was in.view of such a case that the Superior Court employed the language, liable (if the facts were not borne in mind) to some misconstruction. “It (§31) applies to all cases where the title upon which a plaintiff seeks to recover the possession of real property, has from any cause ceased to exist, before the trial. It would be a narrow construction to confine it to cases in which the title expires hy its own limitation.”

I am for affirming the judgment of the court below.

Miller, J. concurred.

Ingalls, J. expressed no opinion.

Judgment affirmed.

Miller, Ingalls and Sogeboom, Justices.]  