
    Harrison D. Cole and Others, Respondents, v. Adam Bickelhaupt, Appellant.
    
      Waste — a grantee, in trust, of a life tenant is. an assignee against whom an action will lie for waste—measure of damages in such an action—what objection cannot be first talcen on an appeal.
    
    Where a life tenant of a farm conveys her interest .in the property, by a deed in i trust to secure the payment of a sum of money in accordance with, the condi- ■ tions of a contract by which it was provided that the grantee in the deed should take possession of .the premises, collect and receive all the rents, crops and ' profits thereof, until such sum of money should be paid, and then reconvey the premises to the life tenant, the grantee is an assignee of the life tenant within the meaning of section 1651 of the Code of Civil Procedure, designating1 persons against whom an action for waste will lie on behalf of the parties entitled to the estate in remainder.
    Where the waste complained of consisted in felling timber and in permitting the farm to deteriorate for lack of proper cultivation and care, the measure of damages is the difference between the value of theffarm before the waste was committed and its value afterwards.
    The objection that evidence, otherwise admissible, was not Competent under the pleadings,' cannot be raised for the first time upon appeal.
    Appeal by the defendant, Adam Bickelhaupt, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Jefferson on the 21st dáy of August, 1899, upon the report of a referee.
    
      Anson Harder, for the appellant.
    
      Watson M. Rogers, for the respondents.
   Rumsey, J.:

The action is brought to recover treble damages for waste committed on the property of the plaintiffs, situated in the town of Theresa, in the county of Jefferson. The land in question is a farm of about 188 acres. It belonged in 1868 to one Andrew J. Cole, Who in that year died, having made a will by which the farm was devised to Anna Cole, his wife, for life,, with remainder over to the plaintiffs. LTp. to July of 1879 Anna Cole was in possession of the farm, hut she then conveyed her interest in the property to the defendant by a deed purporting to be given in trust to secure the payment of $600, with interest, according to the conditions .of a eon-tract made at the same time, by which it was provided that the defendant should take possession of the land and the personal property, and should collect and receive all the rents, crops and profits until the $600 should be paid, when he should reconvey the premises to Mrs. Cole. He was to make all agreements as to letting the property from time to time, which it was agreed should “ be improved in a good and farm-like manner,” and he was to be entitled to recover damages for all injury to the property. Bickelhaupt proceeded at once to lease the property to various tenants, and he continued to hold the title to the property and receive the profits until the 10th of ¡November, 1890, when he and his wife conveyed back to Mrs. Cole. This action was commenced on the 2d of April, 1891,

Among other defenses the defendant set up the six-year Statute of Limitations, The referee found in favor of the plaintiffs that the amount of the damages to the farm was $250, and judgment was entered for $750, being the treble damages allowed by section 1655 of the Code of Civil Procedure, and costs.

The first point made by the appellant is that he , was not the assignee of the tenant for life, nor in possession of the farm in such a way as to render him liable for waste. By section 1651 of the Code, an action for waste lies against a, tenant for life, or the assignee of such tenant, who during the term commits waste upon the property. There can be no doubt that Bickelhaupt, the defendant here, was the assignee of Mrs. Cole,- the life tenant. She had conveyed her interest in the land to him and given him the express right to enter into possession. As against these remaindermen his right of possession and title was exclusive, and clearly that made him her assignee within the meaning of the section for the purposes of this action.

' That he was in possession cannot be doubted. He testifies that he made a lease of the land and collected the rent, and it was his tenant who was in possession of the land ; and while the-relation of landlord and tenant existed the possession of the tenant for certain purposes is deemed to be the possession of the landlord. (Code Civ. Proc. § 373; Tyler v. Heidorn, 46 Barb. 439.)

That serious waste was committed cannot be denied. It appears practically without contradiction that when the defendant took possession of the land there were two orchards upon it in fair condition ; that the land was cultivated; that the buildings were in good condition; that there was a sugar bush' of from 200. to 400 trees, and other standing timber, besides fallen timber sufficient for firewood. The referee would have been justified in finding that most of that timber was still standing in 1883, and that at that time the tenant began cutting the sugar bush and selling the wood. The standing timber was also cut down, made into firewood and sold. The farm, which up to one time had carried twenty cows and produced 1,500 bushels of grain, came to be Worthless. There was ample evidence to warrant the finding that by far the larger part of this waste occurred during the last years of Lawton’s tenancy, and certainly within six years before the commencement of the action. There is considerable dispute as to the condition of the orchards upon the place, but there is no doubt that the referee might have found that there were two, an old and a new one, and that they became entirely worthless, and that a large portion of this damage arose because they were not properly taken care of.

It is said that the sawing timber was all cut off in 1882. There was evidence both ways upon that point, and it may be that some was cut at that time, but it is quite clear that the serious waste was not caused by the sale of the sawing timber, but by the cutting of the standing timber which was sold for firewood.

The condition of the farm as it was in 1879 having been shown, and it then having been made to appear that in 1890, by reason -of poor cultivation, cutting of the timber, decay of the fences and the growth of weeds it had depreciated in value, Mr. Sardam, who had lived in that vicinity, was asked what the farm was worth in 1879, to which he answered, thirty dollars an acre. The witness was then asked what it was worth in 1890, and he answered twenty-five dollars. This testimony was objected to as incompetent and too remote, and not the proper measure of damages, and an exception was taken to' its: admission. Mo particular reason is given by • the defendant why this evidence was incompetent. The evidence was competent because the measure of damage was the difference between the value of the farm before the injuries complained of were committed and afterwards. (Argotsinger v. Vines, 82 N. Y. 309.) . If the waste had only been the cutting of the standing "timher it might be said that the question was, what was the value of the farm with the timber standing and with the timber cut off ? But that was not all the waste complained of. The complaint was not only that the trees had been cut off, but that the farm had been allowed to go to rack and ruin, which was clearly waste. (2 Black. Com. 281.) The witness was asked what the farm was worth an acre. The only objection was that it was not proper to lay a foundation for damages. But it was clearly a statement of the actual damage and the ruling was correct.

The objection that the evidence with respect to the orchard should not have been admitted was properly overruled. The destruction of the orchards was clearly permissive waste, and the only possible objection «to the evidence could have been that it was not alleged in the pleadings. But as the objection was not put upon that ground it cannot now be insisted upon. ( Voorhees v. Burchard, 55 N. Y. 98.)

We find it unnecessary to consider any of the other exceptions which appear in the case. Upon the whole case the judgment should be affirmed, with costs.

All concurred.

Judgment affirmed, with costs.  