
    Robinson v. Wheeler.
    The reversioner may recover for waste by a tenant, although after its commission he alienate the estate and have no interest therein at the time of suit brought.
    The common-law rule (as stated in Coke Litt., 53, b,) is no impediment under our statute. (1 R. S., 750, § 8.)
    The plaintiff may recover for negligent waste, as in suffering a building to be burnt, although the complaint charge the defendant with having wrongfully set fire to it.
    The presumption that a deed which has been acknowledged or proved was delivered on the day of its date, is not affected by the statute. (1 R. S., 738, § 137.)
    Appeal from the Supreme Court. Action to recover for alleged waste. The complaint stated that at the time of the commission of the waste, the plaintiff was the owner in fee of the premises, which were an island in the Niagara river called Tonawanda island, and that the defendant held and enjoyed said premises as the tenant of the plaintiff. The waste charged consisted in cutting down trees, in digging up and carrying off quantities of the soil, and in burning down a wood house; which acts were charged to be to the injury of the plaintiff’s reversionary estate. The defence denied the several allegations of the complaint. The premises formerly belonged to a Mrs. Mary White, who conveyed them to the plaintiff on the 30th March, 1850; but he reconveyed them to her by a deed dated September 2d, 1851, but which was proved to have been actually delivered to the grantee in April, 1852. Evidence was given tending to prove the several acts of waste committed between the conveyance to the plaintiff and the reconveyance by him.
    The defendant maintained, and requested the judge to charge the jury, that the reconveyance by the plaintiff to Mrs. White divested the former of his reversion in the premises, and of all claim to damages done to such reversionary estate, and that he could not therefore recover in'the action; but the judge refused so to charge and the defendant’s counsel excepted. Verdict for the plaintiff for $80. The judgment having been affirmed at a general term, the defendant appealed here.
    White v. Wheeler was an action for the same waste, and the pleadings were the same. The plaintiff was the original owner, who granted the premises to the plaintiff in Robinson v. Wheeler, and afterwards took a reconveyance from him, as above stated., The trial was at the same Circuit, and three days prior to that of Robinson v. Wheeler. The evidence was ' substantially the same. The judge charged, under exception, that the plaintiff was entitled to recover for waste prior to ° March 30, 1850, when she conveyed to Eobinson. She had a verdict for $35, and judgment thereon having been rendered at general term in the eighth district, where the exceptions were heard in the first instance, the defendant appealed to this court.
    The cases were submitted together on printed points.,
    
      John H. Reynolds, for the appellant.
    
      Eli Cook, for the respondent.
    
      The main question involved in both cases was discussed by Wright, J., in Mrs. White’s case, and by Denio, Ch. J., in Robinson’s case, in the following opinions:
   Wright J.

This action, which was in the nature of an action of waste, was brought by the plaintiff in 1853, when she confessedly had an estate in reversion. She had been the owner of the reversion, and the defendant was her tenant before the 30th March, 1850. At that time she conveyed the premises, alleged to have been wasted, to one George Robinson. On the 2d September, 1851, Robinson reconveyed the premises to the plaintiff. It was proved in the case that the defendant entered into the possession of the premises in May, 1849, by the consent and permission of the plaintiff as her tenant, and continued to use and occupy them as her tenant until the 1st May, 1852, and after, a time when all the waste complained of had been committed. Some of the waste was proved to have been done before March 30, 1850, and another part after the 2d September, 1851; and 'the judge charged the jury that the plaintiff could recover for the waste done prior to the 30th March, 1850. Upon this branch of the charge the principal question in the case is presented.

The charge of the judge withdrew from the jury the consideration of any acts of waste while the plaintiff was not the owner of the reversion. Conceding, therefore, that she had the reversion after the 2d September, 1851, and before the 30th March, 1850, and her action in consequence of the waste committed prior to the latter period, the question is whether she parted with that right of action by the conveyance of March 30, 1850? I think not. If the plaintiff cannot maintain an action for an injury to the premises whilst she held the reversionary interest, no person can. Robinson, her grantee, could not, for waste committed before he took title, as the right of action would not pass with the land. There would be an injury without a remedy, and a consequent failure of justice. Upon principle the plaintiff should have her action, all the conditions upon which the action was given being in her favor. The relation of landlord and tenant existed between her and the defendant at the time of the injury. She was then the owner of the reversion, and the injury was to her reversionary interest. She sustained the damage and was compelled either to repair the injury out of her own pocket, or to sell her reversion in its impaired state, and with its depreciated value. A reason why the grantee of the reversion cannot sustain an action for waste committed before he has the title is, because he has sustained no damage. At common law a reversioner, when the term had expired, and he had got possession of his estate, and consequently could only recover damages, might sustain an action of waste in the tenuit. Upon principle, therefore, I cannot perceive why an action on the case in the nature of waste is not maintainable by one seised of an estate in reversion when the waste is committed, but who subsequently grants it away. The. right of action at common law, by the reversioner did not depend, in any degree, upon the facts that the tenancy had expired, and he who had the reversion had got possession of the estate; but damages were recoverable for the injury done to the inheritance, and no person could maintain the action who had not an estate of inheritance in him at the time when the waste was committed.

I have not discovered, nor have we been referred to any decision of the courts of England or of this country where it has heen held that one having an estate in reversion when waste is committed, may not maintain, after alienation of his estate, an action in the nature of waste for the injury done to the inheritance when he was so seised. Against the maintenance of such an action we have been referred to a remark or note of Lord Coke, in his Commentaries upon Littleton (1 Inst., 53, b., Thomas’ ed., vol. 3, 271), wherein he says, “ After waste done there is a special regard to be had to the continuance of the reversion in the same state that it was at the time of the waste done; for if after the waste he granteth it over, though he taketh back the whole estate again, yet is the waste dispunishable. So, if .he grant the reversion to the use of himself and his wife and of his heirs, yet is the waste dispunishable, and so of the like; because the estate of the reversion continueth not, but is altered, and consequently the action of waste for waste done before (which consists in privity) is gone.” The learned commentator was treating of, and the pássage had immediate reference to, the old forms of action. ‘ At common law the action of waste could only be brought by him who had the immediate reversion or remainder in fee or in tail to the disinheritance of whom the waste was alleged to have been committed, (Co. Litt., 53, a,), and no person could maintain the action unless he had an estate of inheritance in him at the time when the waste was committed. If a particular estate intervened between the tenant and the reversioner, the action could not be had during the continuance of such estate. (Co. Litt., 54, a.) The heir could not maintain the action for waste done in the time of his ancestor, nor the grantee of a -reversion for waste committed before the grant to him. (2 Saunders, 252, n. 7.) If a particular estate intervened, and the reversioner died before the determination of the intermediate estate, the action was gone. Lord Coke had just been affirming the doctrine that no man could have an action of waste unless the reversion be in him,- evidently •referring-to the time when the waste was done. He then appends the passage above refered to. Both the learned editors, Hargrave and Butler, in a note to Co. .Litt., p. 218, it would seem supposed the passage had reference to a case where a particular estate intervened, and the reversioner died before the determination of the intermediate estate, in which case the action would be gone, on account of the technical rules of the common law before stated. In Bacon’s Abridgement (title, Waste, Gr.), after stating that the action must be brought by him that hath the immediate estate and inheritance in fee simple or fee tail, it is added, “ It is said that the reversion must continue in the same state that it was at the time of the waste done, and not granted over. But in some special cases an action of waste shall lie, though the lessor had nothing in tne reversion at the time of the waste done; for if a bishop makes a lease for life or years, and dies, and the lessee, the see being void, doth waste, the successor shall have an action of waste.” Thus the rule in Coke is referred to in such a manner as to show that it was intended to affirm that the plaintiff in an action of waste must have had the reversion at the time the waste was done. Cruise in his Digest upon the Law of Real Estate, makes no allusion to the rule in the passage in Coke. The reason of the rule, as stated by Coke, is, that the action of waste “consists in privity.” But it is enough that there should be privity of estate between the reversioner and tenant when the waste is done. In Bacon v. Smith (1 Adol. & Ellis, N. S., 345), husband and wife were seised of lands for their joint lives, and the life of the survivor. The husband assigned his interest and died. The surviving wife brought her action for waste done after the husband’s alienation and before his death. It was held that she could not maintain the action, because until after the husband’s death she had no survivor-ship. Lord Denman, Ch. J., said, “ The declaration sets out no title. It shows no vested interest in the plaintiff at the period when the waste was committed. It is needless to inquire whether the action would have lain if the plaintiff had a vested estate for life in remainder at the time.” Patterson, J., said, “ the action of waste in Coke Litt., 53, b., is said to consist in privity.” Of course there was no privity in the case between the plaintiff and the tenant at the time of waste done.

Our statute, unlike the common law, which gave the action of waste only to him who had the immediate reversion or remainder in fee, or in tail, authorized the maintenance of an action of waste, by any person seised of an estate, in remainder or reversion, notwithstanding any intervening estate for life or years. (1 R. S., 750, § 8.) Unlike the common law, also, which gave the action only against tenant by the curtesy, tenant in dower or guardian, the statute gives it against a tenant for life or years, and the assigns of the tenant by the curtesy, or in dower, or for life or years. (2 R. S., 334, § 1.) It also gives the action to the assignee of such tenant; to one joint tenant or tenant-in-common against another joint tenant or tenant-in-common, who shall commit waste of the estate held in joint tenancy or in common; and to an heir whether he be within or of full age, for waste done in the time of his ancestor, as well as in his own time. (2 R. S., 334, §§ 2, 3, 4.) The impediments, therefore, in the way of maintaining the old common-law action of waste, have been removed; and all the rules of the common law which affected the form of the action merely, and did not go to the right, have no application now. Hone but an immediate reversioner or remainderman in fee or in tail, could have waste, and the estate of inheritance must have been in him when the waste was committed. But he could" have maintained waste after the tenancy had expired, and he had got possession of the estate. If an estate intervened for life between the reversioner in fee and the tenant, he could not bring an action against the tenant for waste, so long as the intervening estate continued; for he was not entitled to the immediate reversion in fee or in tail, to the disinheritance of whom the waste was always alleged to have been committed. And this is all that is meant by Coke in reference to the continuance of the reversion in the same state that it was at the time of the waste done. If the reversioner in fee made a lease to A for life or years, remainder to B for life, he could not bring an action of waste against A, so long as the estate of B continued; and if the reversioner died before the determination of B’s estate, the action of waste against A would be gone; but if B died or surrendered his estate, he might bring his action, as the impediment would be removed. Our statute authorizes any person having an estate in reversion or remainder, to maintain an action of waste or trespass for an injury done to the inheritance, though there, be an intervening estate for life or years. It removes the impediment in the way of sustaining the old common law form of action, and authorizes the maintenance of an action in the nature of waste by other than a reversioner or remainderman in fee or in tail. If a tenant grants away his estate, still retaining- the possession, and commit waste, his assignee may have an action against him. So, an heir is given an action for waste done in the time, of his ancestors. It is no longer necessary, to enable one who has had a reversionary interest in lands, to maintain an action in the nature of waste, that he should be seised • of that interest at the time the action is brought. It is enough if he was seised of the interest at the time the waste was committed; and indeed this is not necessary in the case of an heir who may recover for waste done in the time of his ancestor. The statute allows a person seised of an estate in reversion or remainder, whether it be in fee or for life or years, to maintain either waste or trespass. At common law the reversioner could not maintain trespass; but now the person seised of any estate in reversion or remainder may do so. I do not think it can be maintained, since our statutes, that trespass would not lie in favor of one whose reversionary estate was wasted whilst he held it, though subsequent to such injury he aliened the estate. In this case there is no difficulty on account of the form of the action; and the only question to be considered is whether the law of the land affords any remedy to a reversioner who parts with his estate before action brought against a tenant who wastes such estate whilst the reversioner is seisecf of it. Or, more especially in this case, when the plaintiff divests herself of her reversionary interest for a time, and retakes the estate before suit brought, whether she may have an action for waste done before being divested of her reversionary interest. I think that she may; and that it was not error for the judge to charge that the plaintiff could recover'for waste done before the 30th of March, 1850.

2. The judge charged the jury that the plaintiff could recover for the wood-shed without showing that the defendant set fire to it on purpose, if it was burned through his negligence. The tenant was answerable for waste of the premises through his negligence; and although it was averred in the complaint that the defendant wrongfully set fire to and destroyed the wood-shed, and it turned out from the proof that he had negligently set fire to it, and it was burned up, the plaintiff could recover. That was this case. It was the same kind of waste, the complaint averring that it was committed wrongfully, and the .proof showing that it was done negligently.

3. The objection that the deed from Eobinson to the plaintiff of September 2,1851, did not operate to transfer the estate to the latter as of its date, was not well ■ taken. The deed bore date 2d September, 1851, and it was acknowledged on that day, but appears not to have been recorded until the 20th October, 1852. The date is presumptively the true time of the execution of a deed. (Jackson v. Hill, 5 Wend., 532.) The deed was acknowledged on the day it bore date. The Eevised Statutes do not affect this-rule in cases where the deed has been proved or acknowledged. (Elsy v. Metcalf, 1 Denio, 323.) There was no presumption that the deed was not delivered until it was recorded; but on the contrary, in the absence of proof showing non-delivery, the presumption was that it was delivered on the day it bore date.

The judgment of the Supreme Court should be affirmed.

Denio, Ch. J., (dissenting.)

The writ of waste was a real action, but it has been long in disuse both in England and in this country. Here, the Eevised Statutes rendered the forms more simple; and the Code has abolished the action altogether, providing that wrongs heretofore remediable by action of waste are subjects of action as other wrongs.” (2 R. S., 334, §§ 1-10; Code, §§ 450, 451.) Ho objection of a technical character can now be taken to the form of the proceeding, and the question in the present case is simply this: whether a person seised in fee of lands, who has demised them for years, and has afterwards conveyed the premises in fee, can after such conveyance maintain an action in any form against the tenant for waste committed during the time the plaintiff was seised of the reversion. Lord Coke, in his commentary upon Little-ton, section 67, says: “Ho person shall have an action of waste unless he hath the immediate estate of inheritance.” As corollaries to this he adds: “ If the tenant doth waste, and he in reversion dieth, the heir shall not have an action of waste done in the life of the ancestor, nor a bishop, master of an hospital or the like, in the time of the predecessor,” and “ if an estate tail determine, hanging the action of waste, and the plaintiff becomes tenant in tail after possibility [which is only equivalent to an estate for life] the action of waste is gone.” Further on he adds as follows: “Note. After waste done, there is a special regard to be had to the continuance of the reversion in the same state that it was at the time of the waste done; for if, after the waste, he granteth it over, though he taketh back the whole estate again, yet is the waste dispunishable : so if he grant the reversion to the use of himself and his ' wife, or his heirs, yet the waste is dispunishable, and so of the like; because the estate of the reversion continueth not, but is altered, and consequently the action of waste, for waste done before (which consists in privity) is gone.” (Co. Litt., 53, b.) The doctrine as thus stated is generally repeated in the abridgments and treatises. (Bacon’s Ab., Waste [g.]; Com. Dig. Waste, [c. 3] ; Roscoe on Real Actions, 109.) Sergeant Williams makes it the subject of two interesting notes appended to Greene v. Cole (2 Saund., 235, note 2; 252, a, note 7), in which the subject is measurably exhausted, but the principles ■ stated by Coke are affirmed as unquestioned law. In the last note it is shown that the modern practice, where it is not sought to recover the place wasted, is to bring an action on the case in the nature of waste, in which action some of the formal difficulties of the ancient writ of waste are avoided. Bacon v. Smith, (1 Adol. & Ellis, N. S., 345; anno 1841), was case 1 for waste brought after the defendant had yielded up the premises to the plaintiff, who, when the action was brought, had an estate for life. The question was whether this was the same estate which she had at the time of the waste committed. Jt was held that it was not and that she could not recover. Patterson, J., repeated the passage from Coke Littleton, that the reversion must continue in the plaintiff in the same state that it was at the time of the waste done, and added. “ The passage, indeed, has immediate reference to the old form of action, but the rule equally applies to an action on the case in the nature of waste.” The case is referred to in order to show a recent recognition' of the rule, as well as that it applied equally to the modern as to the ancient action. The rule has been qualified by the legislature in this state in a point not essential to the present case, by 1 Revised Statutes, 750, section 8, which declares that a person seised of an estate in remainder or reversion may maintain an action of waste or trespass, for any injury done to the inheritance, notwithstanding any intervening estate for life or years. The object of this enactment was to abrogate a branch of the doctrine of Coke ' by which it was laid down that if, between the estate of the tenant who commits waste, and the subsequent estate of inheritance, there is interposed an estate of freehold in any person in esse, then, during the continuance of such interposed estate, the action of waste is suspended, and i if the estate of the person committing the waste expires during the continuance of such interposed estate the action is gone forever. (Co. Litt., 218, b.; Sergt. Williams’ note 7, sup.) This formal difficulty is thus removed, but the rule of the old books is at the same time .impliedly recognized, and it is on account of the latter circumstance that the statute is here mentioned.

It thus appears that a rule, which it must be admitted seems to be somewhat technical, has come down to us from an early period of English jurisprudence, and has been repeatedly recognized and affirmed by modern authorities. I cannot find that it has ever been questioned or even doubted. It does not relate to the form of the remedy, but to the right to recover in any action. We cannot, therefore, refuse to apply it to the present case, which presents facts precisely within its terms and spirit. The plaintiff was seised in fee and the defendant became his tenant for years, and while holding the premises in that character he committed waste; but before« bringing the action, and, as I understand the facts, before the expiration of the tenancy, he granted the premises, that is, the reversion, to another. This precludes him from maintaining an action for the waste.

But the rule is founded on reasons which, though somewhat, artificial, are not entirely unsatisfactory. When the waste was committed the plaintiff was not in a condition to recover damages for an injury to the possession, and he accordingly only claims them on account of injuries to the reversion. Such damages, it is supposed, could not affect him until he became entitled to the actual enjoyment of the inheritance by the expiration of the defendant’s term. Before that time he grants the reversion to another. He may, it is true, have sold the land at a less price on account of the waste; but such a ground of damage is somewhat speculative, and the law does not appear to regard it as a cause of action. The grantee, it is considered, cannot maintain the action, for when the waste was committed he had nothing in the premises.

I have assumed that the defendant was something more than a tenant at will. The complaint states that he was the plaintiff’s tenant under a demise; and'the injury is stated tobe done to the plaintiff’s reversionary estate. These statements of course imply a term in the tenant, and a reversion in the plaintiff, and they are inapplicable to a mere holding at will. If the latter had been the character of the defendant’s possession, a common action of trespass would have been maintainable, as the commission of the waste would have been a determination of the will. (Phillips v. Covert, 7 John., 1, and cases cited.)

I am of opinion that the decision at the Circuit was wrong, and that the judgment ought to be reversed, and a new trial ordered.

The case of White v. Wheeler is similar in its facts to Robinson v. Wheeler, argued at this term, except that the plaintiff, after conveying the premises wasted to Bobinson, subsequent to the commission of the waste, and while the defendant remained her tenant, and before the commencement of this action, received a grant of the same premises from Bobinson, and thus was seised of the inheritance at the time of bringing the action. The case falls directly within Lord' Coke’s rule, in which he says: “for if after the waste, the tenant granteth [the reversion] over, though hetaketh back the whole estate again, yetis the waste dispunishable.” (Co. Litt., 53, b.)

This judgment should also be reversed.

In the Robinson case, the following opinion was delivered by

Wright, J. The plaintiff proved that on the 80th March, 1850, the premises described in the complaint were sold and conveyed to him, and from that time until almost the middle of April, 1852, the defendant occupied the same, and the buildings thereon, as his tenant. He then gave evidence of acts of waste committed by the defendant upon the premises between March 30, 1850, and April 1, 1852. The greater part of the waste was done in 1850,' but some of it after the 11th January, 1852, and before the 1st April, 1852. It was conceded that the plaintiff, by deed, sold and conveyed the' premises to Mary White in April, 1852. The defendant claimed that the conveyance had been executed on the 2d September, 1851, the day it bore date, but the judge permitted the plaintiff to prove that it was not delivered until April, 1852. It can make no difference, as respects the principal question in the case, whether the plaintiff parted with his reversionary interest in September, 1851, or in. April, 1852, as he had, unquestionably, granted and conveyed such interest to another before suit brought.

The judge, upon being requestéd, declined to charge, but on the contrary charged the converse of the propositions: 1st. That the deed of the plaintiff to Mary White of September 2, 1851, operated to grant over the plaintiff’s reversion, and all claim on account of any injury to his reversionary estate; and, 2d. That the action cannot be maintained unless the plaintiff’s reversion be at the time of the action brought in the same state that it was at the time of the waste done. This substantially raised the question whether a reversioner, who aliens his estate after waste committed, may, after such alienation, maintain an action for such waste; or, whether to entitle a party to maintain an action in the nature of an action for waste, the reversion must be in him at the time of action brought in the same state as when the waste was committed. I think that a party may recover after alienation for waste done whilst the title to the premises and the reversionary interest was in him. I have explained my views, and given my reasons for this opinion, in the case of White v. Wheeler, at the present term, and it is unnecessary to repeat them.

The defendant offered to show that the plaintiff’s grantee, in a prior action, had recovered for the waste done after the 2d September, 1851, but the judge excluded the evidence. There was no error in this; the proof could in no way affect the plaintiff’s right. It was not his fault if the defendant had suffered a recovery against him by some other person for this waste; who, by law, had no right to recover. It was clearly by some neglect or omission of his own, if the defendant suffered a recovery against him by a person not entitled thereto, and he cannot set that up to defeat the plaintiff’s right of action.

There was nothing in the objection to the court receiving evidence that the deed of the plaintiff to Mrs. White was not delivered until April, 1852. The plaintiff was entitled to recover for all acts of waste committed during the time the reversionary interest remained in him. A deed can convey nothing until it is delivered, and hence it is always open to show when a deed is actually delivered. The execution and recording of it is only presumptive evidence of its delivery. This was not a case for the appliéation of the doctrine of estoppel. The defendant being liable to respond to the owner of the reversion it was open to both parties to show, as best they could, the precise period of time when the ownership ceased.

The judgment of the Supreme Court should be affirmed.

Davies, Selden, Gould and Smith, Js., concurred; Sutherland and Allen, Js., concurred with Denio, Ch. J., for reversal.

Judgments affirmed.  