
    King v. Kaiser.
    (New York Common Pleas
    General Term,
    May, 1893.)
    Plaintiff, through, one M., became the owner of certain houses in the city of New York, on May 24, 1892. By an arrangement between plaintiff and the husband of M., the latter was employed to receive the rents after the delivery of the deed. Sometime after plaintiff’s deed had been recorded the husband of M. borrowed money from defendant, a tenant, gave him a note, and told him when the note became due he could pay it out of the money coming as rent of plaintiff’s property for the month of September, 1892. In the early part of that month, both plaintiff and the husband of M. called upon defendant, and informed him that plaintiff was the owner of the premises, and that the rents must be turned over to him. Defendant thereupon asserted his claim against the husband of M., and plaintiff said he would have nothing to do with it, and the husband of M. then told the defendant he would pay it as it was his debt, and then defendant accepted the agency from plaintiff to collect the rents for him. Defendant collected the September rent, but refused to pay it over to plaintiff. Thereupon this action was brought to collect the money so withheld. Defendant claimed that there was an equitable assignment from the husband of M. of the rents to become due. Held, untenable.
    Appeal from a judgment for plaintiff rendered in a District Court of the city of Hew York. The opinion states the case.
    
      Jiabe & Keller, for defendant (appellant).
    
      W. J. O’ Connell, for plaintiff (respondent).
   Bookstaver, J.

Prior to May 24, 1892, one Fanny C. Matthews was the owner of the houses Hos. 225 to 229 Willis avenue, in the city of Hew York, and on that day she conveyed the same by deed to the plaintiff herein. Robert H. Matthews, the husband of Fanny 0. Matthews, was acting as his wife’s agent in respect to these houses in collecting the rent, and by an arrangement between the plaintiff and Matthews, the latter continued to receive the rents after delivery of the deed to the former. Matthews had been in the habit of borrowing money from the defendant, and some time in July, and long after plaintiff’s deed had been recorded, Matthews borrowed some money from the defendant, gave him a note, and told him when the note became due he could pay it out of the money coming as rent of plaintiff’s property for the month of September, 1892. Both plaintiff and Matthews called upon the defendant in the early part of that month, and informed defendant that Mr. King was the owner of the premises, and that the rents must be turned over to him. Defendant thereupon asserted his claim against Matthews, and plaintiff said he would have nothing to do with it, and Matthews then told defendant he would pay it as it was his debt, and then defendant accepted the agency from plaintiff to collect the rents for him. Defendant collected the September rent, hut refused to pay it over to the plaintiff, claiming it under the alleged assignment of Matthews to him. Thereupon this action was brought to collect the money so withheld. Upon the trial the defendant conceded that he had collected for September §131.19, so that the only issue between the parties was as to the ownership of the rents so collected.

"We think that defendant’s claim that there was an equitable assignment of the rents to become due is untenable, and that for several reasons: First. No authority was shown in Matthews, as agent of Mr. King, the owner, to assign the rents in payment of Matthews’ debt. In order to hold the principal, the agent must have acted within the scope of his authority, and to sustain the claim against the principal, such authority must he proved. 1 Am. & Eng. Ency. of Law, 415, and cases cited. Second. Because it was not claimed on the trial that there was any written assignment of these rents. It is, therefore, void under the Statute of Frauds. Rent is q return or compensation for the possession of some corporeal hereditament, and is a certain profit issuing out of land and tenements in return for their use (2 Bouv. 437; 2 Black. Com. 4), and are incident to the reversion and naturally attach to the ownership. Estate and interest in land shall be construed to embrace every estate and interest, freehold and chattel, legal and equitable, present and future, vested and contingent, in lands as above defined.” Rev. St. tit. 3, chap. 7, § 3. And the Revised Statutes expressly provide that no estate or interest in land, other than leases not exceeding one year, nor any trust or power over or concerning lands, or in any manner relating thereto, shall he created, granted, assigned, surrendered or declared, unless by act or operation of law, or by a deed or evidence in writing subscribed by the party creating, granting, assigning, surrendering or declaring the same, or by his lawful representative thereunto authorized in writing. Third. Because the recording of plaintiff’s deed long before the taking of the note was constructive notice to the defendant and all others of plaintiff’s claim as owner. The object of the Recording Act is to put every person dealing with the property upon his guard regarding the same, and consequently he cannot now claim that he had no notice of the change of ownership of the property in question. Fourth. By accepting the agency from the plaintiff, with knowledge that plaintiff disputed any claim of defendant against Matthews payable out of the rents, he is now estopped from claiming any assignment thereof. The evidence shows that plaintiff and Matthews called upon defendant in September; informed the defendant that plaintiff was the owner of the property and rents should be paid to him; thereupon defendant asserted his claim against Matthews, which plaintiff said he had nothing to do with; that defendant must look to Matthews, and that if he wanted to take charge of the premises, it must be as plaintiff’s agent, and that Matthews said then to defendant he would pay him, and thereupon defendant accepted the employment as plaintiff’s agent. Had defendant then refused to waive his claim to the September rents, it is not at all likely that the plaintiff would have given him charge of collecting the same. In this way defendant induced plaintiff to repose confidence in him, and he is, therefore, estopped from claiming anything as against these rents. Bigelow Estoppel, 387.

The judgment should, therefore, be affirmed, with costs.

Bischoff, J., concurs.

Judgment affirmed.  