
    Jackson, ex dem. Stewart, against Kingsley.
    Where a party suanttoañiücé ⅛ that purpose, strument "to which he ⅛ par-⅞⅛ L claims a beneficial in-necessary'* for tl,e other party ecufimTínofo-eutioii of the proved T>y The 0⅞⅛? it ’as'Tvidenct in the cause.
    The circumstances of the names of the subscribing witnesses being tora off, will not exempt the party from the necessity of proving the hand-writing of the party who executed it, there being no evidence that the party producing the deetl had mutilated iC
    
    Where A., a lessee, agreed to sell the lease to B., for a certain sum, and endorsed his name on the lease, and delivered it to B.. who paid him the purchase money, and agreed to pay the rent in arrear, and to become due to the lessor in the lease: Held, that this was an agreement for a sale, and that the relation of landlord and tenant did not exist between them, and that, therefore, B. was not entitled to a notice to quit.
    THIS was an action of ejectment, to recover lot No. 4. in M’Key’s patent, in the town of Worcester, in Otsego county, tried before Mr. Justice Platt, at the Otsego circuit, in 1818,
    At the trial, the plaintiff proved, that a notice had been duly served on the defendant’s attorney, to produce, at the trial, a lease, in perpetuity, from James V. Romayne to the lessor of the plaintiff, or that parol evidence would be given of its contents. The defendant, accordingly, produced a lease of the premises in question, dated the 15th of January, 1801, executed by Romayne and the lessor of the plaintiff, to the lessor of the plaintiff, his heirs and assigns for ever, paying an annual rent of 15 dollars.
    The defendant’s counsel objected to the lease being read in evidence, without first proving the execution thereof by the subscribing witnesses, or in some other legal mode. It appeared, that the names of the subscribing witnesses had been torn off. The judge decided, that the deed coming out of the hands of the defendant, under these circumstances, no further evidence concerning it was necessary. The lease was, there-uPon> read in evidence, and the lessor of the plaintiff proved, that some time after its execution, he went into possession of the premises, on which he lived several years ; and that, at the commencement of this suit, the defendant lived on the premises.
    The defendant, after proving the hand-writing of the lessor of the plaintiff, whose name was endorsed on the lease, offered to prove that, about ten years ago, Thomas Benton agreed to purchase of the lessor of the plaintiff, the premises in question, for 750 dollars, and that Benton was to pay Romayne the rent then in arrear, and which should become due thereafter ; and that, in pursuance of this contract, B. paid the lessor of the plaintiff the sum of 750 dollars, #who, thereupon, endorsed his name on the lease, and delivered it to Benton, who immediately went into possession of the premises, and continued in possession until his death, leaving a wife and children ; and the defendant, afterwards, married the widow, and lived with her on the premises, until the commencement of this suit. The evidence was objected to by the plaintiff’s counsel, who stated that no rent had ever been paid by Kingsley or Benton, that K. was insolvent, and that the lessor of the plaintiff, the original lessee, was called upon for the rent. The judge rejected the evidence, and charged the jury to find a verdict for the plaintiff; and the jury, accordingly, found a verdict for him.
    A motion was made to set aside the verdict, and for a new trial, which was submitted to the court without argument, on the above case, and the points and authorities stated thereon.
   Spencer, Ch. J.,

delivered the opinion of the court. In Betts v. Badger, (12 Johns. Reg. 223.) we laid down this rule, that if the party producing an instrument, on notice, is one of the parties to the instrument, the custody of the paper affords high presumptive evidence that he holds it as a muniment, and, prima facie, it is sufficient proof of the execution. The same rule was adopted by the Court of Common Pleas in England, in Pearce v. Hooper, (3 Taunt. 60.) In that case the chief justice observed, “ the mere possession of an instrument does not dispense with the necessity which lies on the party calling for it of producing the attesting witness.” He puts the case of an heir at law being in the possession of a will, and the devisee brings an ejectment, and calls on the heir to produce the will; then the heir claiming against the will, it would be hard that it should be taken to be proved against him because he produced it. Phillips, (346.) says, the result appears to be, that where a party to a suit, in pursuance of a notice, produces an instrument to which he is a party, and under which he claims a beneficial estate, it wall not be necessary that the other party, a stranger to the instrument, should call an attesting witness to prove the execution; but that in other cases, the execution ought to be regularly proved by #the party who offers the instrument as part of his evidence in the cause. This I consider, now, the settled law upon the subject, with this qualification, that it is immaterial whether the party who calls for the production of the deed be a party or a stranger to it. In the present case, the defendant is not a party to the lease, in any sense of the word; nor does he claim, personally, any beneficial interest under it. This case, therefore, does not come within the rule; and the plaintiff was bound to prove the execution of the lease. The judge, in admitting it to be read, was probably influenced by the fact, that the names of the subscribing witnesses were torn off; but there is no proof, or circumstance raising a presumption, that the defendant had mutilated the instrument. This fact, then, did not absolve the plaintiff from the necessity of proving the hand-writing of the lessor ; and, under the circumstances, that would have been the only mode of proof.

The objection, that notice to quit ought to have been given, is untenable. The relation of landlord and tenant never existed between the parties. Benton purchased the interest of the lessor of the plaintiff, as a lessee in the lease from Romayne. He was not to pay him any rent, but was subject to pay the rent to Romayne. The lease was never assigned in such manner, as to vest Renton with the title, and, consequently, the lessor of the plaintiff had the legal estate under the lease. As between them, it was an agreement to sell, and in such case notice to quit is unnecessary. (3 Johns. Rep. 422. 13 Johns. Rep. 106.)

A new trial must be granted, with costs to abide the event, on the first point.

New trial granted, 
      
       See Harden v. Kretsinger, post, 293. Jackson v. Cody, 9 Cowen, 140.
     