
    Abraham Stauffer v. Bowen Eaton, and others.
    Where a vendee of land is in land is in possession, under a contract of sale remaining open and in force between the parties, he is not liable to the vendor, in an action on the case, for an injury to the property.
    
      'The vendor, in such case, has not a reversionary interest for an injury of ■which ho can recover damages.
    Nor can he support an action for such damages, in the nature of an action for waste.
    This is an action on the case reserved from Trumbull county. ■
    Tho declaration has three counts. To the first tho defendant demurs; and to the second and third counts, pleads non assumpsit. The questions for decision arise upon the first count, which is as follows:
    “ The said plaintiff complains, for that whereas, before and at the timo of the committing of the grievances by tho said defendants, as hereinafter mentioned, certain premises, embracing *about three and one quarter acres of land, with a steam .■saw arid grist-mill, and two dwelling-houses thereon, with the .appurtenances, situate in the township of Canfield, in the county of Trumbull, aforesaid, were in the possession and occupation of .a certain person, to wit, the said Bowen Eaton, under and by virtue of a contract for the sale and conveyance of the same to the .said Isaac Eaton, made and executed by the said Bowen Eaton •and the said plaintiff, on or about August 21, A. D. 1889, wherein and whereby the said Bowen Eaton agreed to make, or cause to be made, in thirty days from the date of said contract, to the said plaintiff, his heirs and assigns forever, a good, legal and warranty deed of about fifteen acres of land, situate in the county of Trumbull, .Aforesaid, with a furnace thereon, and also his interest and claim in and to certain iron oro and flowed ground (reserving, however, fihe steam engine, with all its appurtenances, and also the flasks .and patterns), and to give said plaintiff immediate possession thereof; and the said plaintiff therein and thereby agreed, in thirty days from the date of said contract, and upon the aioresaid deed of said premises, lurnace and privileges being tendered to him, to pay to the said Bowen Eaton, or his order, the sum of $1,0U0, and at the same time make, or cause to be made to the said Isaac Eaton, his heirs and asigns, forever, a good, legal and warranty' deed of said premises, with a steam saw and grist-mill and two dwelling houses thereon, with the appurtena1 ces, situate in Canfield, a oresaid, and also to pay the said Bowen Eaton the sum oi $i,5U0, in twelve months from the date of said agreement, and to give him immediate possession of said premises, mill and dwelling-houses, with the appurtenances (ihc reversion ot said premises, mill and dwelling-houses, with the appurtenances, then and still belonging to the said plaintiff, in case the said Bowen should neglect to tender such deed, as a oresaid, and should abandon said contract, premises, mill and dwelling-houses), to wit, at Canfield, in the county of Trumbull, amresaid. Yet the said deiendanis well knowing the premises, and *that the said Bowen Eaton had wholly neglected to tenderte said plaintiff such deed, as aforesaid, and had abandoned said coniract, and was about to abandon said promises, mill and dwelling-houses, but contriving, and wrongfully and unjustly intending to injure, prejudice and aggrieve the said plaintiff in his reversionary estate and interest of and in the said premises, null and dwelling-houses, with the appurtenances, while the said premises, mill and dwelling-houses were so in the possession and occupation of the said Bowen Eaton, under and by virtue of said contract, and while the said plaintiff was so interested therein, as aforesaid, by reason of the neglect of the said Bowen Eaton to tender such deed, as aforesaid, and of his abandonment of said contract, and by reason of the determination uf the said Bowori Eaton immediately to abandon said premises, mill and dwelling-houses, to wit, on February 1, a. d. 1840, and on divers other days and times between that day, and bcloro the commencement of this suit, at Canfield, in the county of Trumbull, aloresaid,. wrongfully and unjustly, without the leave or license of, and against the will of the said plaintiff, tore down the machinery by which the said mill was propelled, and took and removed the same away, and took and removed away the millstones, mill-irons, bolting-cloths, and screen, and broke, cut and destroyed the timber work, frames and gearings appurtenantand belonging to said mill; and cut and broke divers large holes through the sides and end of said mill building. By means of which said several premises, the said plaintiff hath been and is greatly injured, prejudiced and aggrieved in his said reversionary estate, and interest o- and in the said premises, mill and dwelling-houses, with the appurtenances, so in the possession and occupation of the said Bowen Eaton, as aloresaid, to wit, at Canfield, in the county of Trumbull, aforesaid.”
    Crowell ■& Abell, Tod & Hoeeman, for defendants, in support. of demurrer to the said count:
    The declaration avers that, at the time of the committing of the grievances complained of', the three acres of land and the *mills, e)c„ were in the possession and occupation of'Bowen Eaton, one of the defendants, by virtue of a contract to sell and convey the same to said Isaac Eaton, by said Bowen and plaintiff, by the terms of which, Bowen Eaton, within thirty days from August 21, 183!), was to deed to the plaintiff fifteen acres of land, with a furnace thereon, reserving the engine, flasks, and patterns, and to give immediate possession; and the plaintiff was, at the same time, and on receiving said deed, to pay said Bowen $1,000, and to deed to said Isaac Eaton said three acres, etc., and to pay said Bowen, twelve months from the date of said agreement, $1,500, and to give him immediate possession, the reversion still belonging to the plaintiff in case said Bowen should neglect to deed, and should abandon the contract.
    The declaration xurther avers, that Bowen Eaton neglected to-tender the deed, had abandoned the contract, and was about to-abandon the premises; and being still occupying the promises, the defendants, to injure his reversionary interest, on February 1, 1840, and on divers other days, tore down the machinery of the-mill and took away the millstones, mill-irons, bolting-cloths and screen, and cut and destroyed the timber work, frame, gearing, etc.
    This count is clearly one in case for waste. It sets forth that Bowen Eaton is the tenant, if in fact there be such a relation subsisting between any oi the defendants and plaintiff as that of landlord and tenant. The other defendants are all strangers to-the title, and have neither possession nor the right to possession^ and can not be sued in such a form of action. If they are liable to any action, it must be to the action of Bowen Eaton, the tenant in possession.
    It is, says Kent, a general principle that the tenant is responsible to the reversioner for all injuries amounting to waste done to the promises during his term, by whomsoever committed. “He has his action over against the wrongdoer.” The landlord can not protect the property against strangers; 4 Kent’s Com. 77. The reason of the rule is iounded upon the necessities of the case, and the well-established distinctions ^between trespass with force and trespass on the case. The facts charged upon all the defendants, except Bowen Eaton, is a trespass, and the aetioa should correspond with the fact. If, then, the plaintiff can not maintain trespass against them, because out of possession, and it is admitted he could not., this is no reason why he should be allowed to violate the established forms of law and resort to case-It was his own folly to place the possession in another, so as to prevent his bringing his.action of trespass, or to enable that tenant to give a license which would prevent the bringing and sustaining such action ; and he must abide the consequences. The parties dealing with a person having such evidence of right, may ■not be tort feasors, and if not, can not be sued jointly with their vendor, lor property which they purchased, paid for, and took away in trood faith.
    To sustain a count in case in the nature of waste, it is necessary that thero should be a privity of estate between plaintiff and defendant; and although it is not necessary to set out at length the respective title of each, it is always necessary to state their relation to each other as landlord, or reversioner and tenant, or occupant, and to aver occupancjr by the defendants, at the time the grievances were committed which aro complained of; Green v. Cole, 2 Saund. 252, b, note. In this count, the pleader, so far from showing a relation of tenant or occupant between Isaac Eaton and the plaintiff, sots forth that Bowen Eaton was exclusive occupant under a contract of sale made between him and plaintiff, which was then in force, and for aught that appears, will be fully complied with and perfected, if the plaintiff will pay the $1,000 stipulated by him, and also, perform the other concurrent act to which his contract bound him. The defendant, Bowen Eaton, was in lawful possession as a purchaser, and had a right to use the premises, from the showing of the pleader, while the contract remained unrescinded. It did so remain at the commencement of the suit; for, in the first place, the cestui que trust was Isaac Eaton ; and it was not competent for Stauffer, the plaintiff, and Bowen Eaton, to abandon the contract *and put an end to it against his will, or without his assent. The contract of sale was then in force — was executed, so far as possession was concerned, and could not be rescinded by the act of the parties, and, ■consequently, the true remedy of the plaintiff was a bill to enjoin waste and enforce a specific performance; because, in that way only could he act consistently with truth, and the rights of all the parties in interest.
    There is a total absence of all privity of estate between plaintiff and part of defendants, and for this the count is bad upon demurrer* 7 Bac. Abr. 267, 268; 2 Inst. 300, 1, 2; Fitz. 129; Co. Lit. 54; 13 Johns. 260, 264; 12 Johns. 371.
    Again. If it be held that the declaration sufficiently avers the abandonment of the contract, we then say that trespass, quare clausum, and not case, is the proper form of action; for the contract being abandoned, Eaton could only bo tenant at will, and waste determined that estate, so that in law the possession becomes, eo instante, vested actually in the landlord, and he can maintain trespass. 9 Johns. 36; Ib. 331; 7 Cow. 229; 11 Mass. 519.
    It is important to preserve the distinction between actions; and no courts have felt the necessity of so preserving them more than our own courts. It is manifest that the action proper to be brought, in many cases that will arise, will be a doubtful and perplexing question to determine, if ancient rules are to be broken in upon. Ancient rules will be broken down if it be settled that a case proper for trespass, vi et armis, and one that could be1 maintained, may be converted into an action on the case at the pleasure of the party. Such a doctrine would be mischievous in-the extreme.
    P. and R. Hitchcock & Wilder, for plaintiff, contra:
    It is manifest, from the case set forth in the count, that the-plaintiff has sustained a serious injury, and the question arises 'whether he is without redress. Il he can have redress, we know of no other way in which he can obtain it, except by *pursuing the course adopted in the present instance of prosecuting an action on the case.
    But it is said that this is an action in the nature of an action of waste, and that no action of waste can be sustained, except where there is the relationship of landlord and tenant. It is an action brought by the vendor against his vendee and others, for an injury to the property, committed after tae vendee had abandoned the contract, and when he was about to leave the premises. Thus injury may have been waste, as it had a tendency to deteriorate the property, and so does every injury to property, whether caused by a direct trespass or incidentally in the performance if a lawful act.
    An action on the case for a nuisance, is based upon the hypothesis that the nuisance complained of has a tendency to< deteriorate the value of the plaintiff’s property; still, it is not an action of waste, nor can it be said to be in the nature of an action of waste.
    Whore the relation of landlord and tenant exists, if a third person enters upon the land and destroys the timber, or does other acts which diminish the value of the estate, the landlord may have an action on the case to recover damages for the injury done to the inheritance. He can not have an action of trespass, because he is not in possession, but the tenant may.
    The case before the court is one substantially of (his character. Stauffer was the owner of the land, with the mill, building, and other appurtenances. Ho, by contract, had sold to Bovven Eaton, and put him in possession. Eaton, however, had failed to perform, the contract; he had, in fact, abandoned it. Although he was still in possession, he was about to leave. In this situation the injury was committed — not by Eaton alone, but by him and oth< r persons. How, if we admit that, owing to the relation between Bowen Eaton and the plaintiff, this suit can not be sustained against him, it does not follow .but that it may be sustained against the others, who were strangers. If liable at all, the defendants are liable as in trospass, jointly and severally; and all having demurred jointly to *the declaration, if any of them are liable in this form of action, the demurrer should be ■overruled.
    But we do not admit that Bowen Eaton is not liable. He, with others, have inflicted a wrong upon the plaintiff, and there is no other way in which redress can be obtained. The action ol tres'■pass on the case is the only appropriate remedy. It may be that no case precisely similar has been before the court. We confess that we have not found any. But still this can be no good reason why the court should not sustain the suit.
    The case of Yates v. Joyce, 11 Johns. 136, was of this character. Tates was the assignee of a judgment, which was a lien on the real estate of John and Darcy Joyce, and was about to take out execution, and have it levied upon a certain lot in Schenectady, the property of John and Darcy Joyce. G. Joyce, knowing that the judgment was a lien, and that the judgment debtors had no other property with which to satisfy the judgment, after tho execution was levied, demolished a barn upon the lot, of the value, of' $300, thereby diminishing to that extent the security of Tates. Tates commenced suit against G-. Joyce, and stated these facts in his declaration. To this declaration there was a demurrer, but the demurrer was overruled.
    In deciding the demurrer, the court say: “This appears tobe an action of the first impression. The books do not furnish a precedent in its favor. It is obvious, however, from the statement of the plaintiff’s case in the declaration, the truth of which is admitted by the demurrer, that he has sustained damage by the act of the defendant, which he alleges was done fraudulently, and with intent to injure him. It is the pride of the common law that, wherever it recognizes or creates a private right, it also gives a remedy for the violation of it.” Again, the court say: “ If there is any remedy lor him, ‘that is, for the plaintiff,’ it is in this form of action only that ho can obtain it. Trespass will not lie, for the plaintiff was not in possession.” And, again : “ It is a sound principle that, where the fraudulent misconduct of a party occasions an ^injury to the private rights of another, he shall be responsible in damages for the same.”
    Now, in the case before the court, there can be no doubt, as that case is stated in the first count in the declaration, that the private rights of the plaintiff.have been infringed, and that he has sustained a grievous wrong by the wicked, fraudulent, and wrongful acts of the defendants. Under such circumstances the court of New York sustained an action on the case to redress an injury, although no precedent could be found directly in point. And they did it upon the principle that wherever the common law recognizes a right it gives a remedy for the violation of that right, and that remedy, where no other form of action is prescribed, is by action on the case. 1 Com. Dig. 178.
    It seems to us that justice requires, in this case, that the demurrer should be overruled, and the defendants ordered to plead to the declaration.
   Wood, J.

In the count under consideration, it is recited, in substance, that certain premises, embracing three acres and a quarter of ground, with a steam saw and grist-mill, and two dwelling-houses thereon, with the appurtenances, situate, etc., were in the possession and occupancy of the said Bowen Eaton under a contract lor the sale and conveyance of the same to Isaac Eaton, which contract was executed by the said Bowen Eaton, and the said plaintiff, Stauffer, on August 21, 1839; and by which contract the said Bowen Eaton agreed to make, in thirty days from the date of said contract, to the said plaintiff, his heirs and assigns forever, a good warranty deed of about fifteen acres of land, situate, etc., with a (urnace thereon, and to give said plaintiff immediate possession thereof, and the said plaintiff, by said contract on his part, agreed, in thirty days from the date of said agreement, and upon the deed of said promises, furnace, etc., being tendered to him, to pay to said Bowen Eaton, or his order, the sum of $1,000, and, at the same time, to make to the said Isaac Eaton, his heirs and assigns, a good warranty deed of said premises, with s steam *saw and grist-mill, and two dwelling-houses thereon, with the appurtenances, situate, etc., and also pay the said Boweü Eaton the sum of $1,500, in twelve months (rom tho date of said agreement, and give him immediate possession of said premises, with the appurtenances, etc., the reversion of said premises, then, and still belonging to the said plaintiff, with the said mill, dwelling-houses, and appurtenances, in case the said Bowen Eaton should, neglect to tender such deed, as aforesaid, of the said fifteen acres, with the appurtenances, etc. Yet iho defendants, well-knowing the premises, and that the said Bowen Eaton had wholly neglected to tender to said plaintiff such deed, and had abandoned said contract, and was about to abandon said premises, mill, and dwelling-houses, but contriving, and wrongfully and unjustly intending to injure, prejudice, and aggrieve tho plaintiff in his reversionary estate, and interest of, and in the said premises, mill, and dwelling-houses, with the appurtenances, while the same were in the possession and occupancy of the said Bowen Eaton, under, and by virtue of said contract, and while the said plaintiff was so interested therein, as aforesaid, by reason of the neglect of the said Bowen Eaton to tender such deed, as aforesaid, and of his abandonment of said contract, and by reason of the determination of the said Bowen Eaton immediately to abandon the said premises, mill, and dwelling-houses, to wit, at, etc., on, etc., wrongfully and unjustly, without the leave or license of and against the will of, the said plaintiff, tore down the machinery, by which the said mill was propelled, and took and removed the same away, and took and removed away the millstones, mill-irons, bolting-cloths, etc., and broke, cut, and destroyed the timber work, frame, and gearing belonging to said mill, etc. By means of which said several premises, the plaintiff is greatly injured and agrieved, in his said reversionary interest and estate, in the premises aforesaid.

We have thus spread out the declaration nearly in its words, 'and we think it requires more than ordinary legal astuteness to discover any merits in the plaintiff’s case.

*The count in the case at bar was, probably, intended to redress what the plaintiff supposed was, and what he denominates, an injury to a reversionary interest. If such wore the injury, and such the action, whether the estate be realty or personalty, numerous authorities may be cited to sustain the position. But what is the case made?

On August 21,1839, the plaintiff contracted with the defendant, Bowen Eaton, to convey to Isaac Eaton tho premises, or locus in quo. Tho deed was to be executed in thirty days. Under this contract Bowen Eaton went into possession.

By the same contract the defendant, Bowen Eaton, agreed to convey to the plaintiff fifteen acres of land, with a furnace, etc., and to execute the deed in thirty days from tho date of the contract. The plaintiff to have immediate possession, and when Eaton should tender the deed of the furnace property, the plaintiff to deliver the deed of the mill property, and pay to Eaton 81,000, and 81,500 more in twelve months, and give to Bowen Eaton immediate possession of the mill property. It will thus bo seen this was an exchange of land, and each party acquired the immediate and lawful possession under the contract. The covenants are, throughout, mutual, to be performed at the same time.

It follows that neither party could abandon, rescind, or put an end to this contract without the consent of the other ; or, without doing some positive act, on his part, by which to put the other in the wrong. Before the plaintiff could forfeit the defendant Eaton’s contract, it was necessary for him to tender the deed of the mill property, offer to pay the 81,000, and demand performance by the defendant, Eaton.

This was not done, and, from anything that appears, the contract is still a valid, binding, and obligatory contract, and either party, by performance, or an offer to perform, on his part, may comjjol the other to execute it. The defendant, Bowen Eaton, being in possession as vendee, though ho has not the legal title, is, while such contract continues open, tho solo owner of the estate in equity. I say as vendee, because *he bought tho property, and he paid for it, and he was put in possession, though the deed was to be made to Isaac.

A purchaser thus in possession may control the property, build up, or tear down-, and use it in any way conducive to his own feelings, or interest, provided he do not injure another by such use.

The plaintiff avers that the defendant intends to abandon the property, and not perform the contract, and that these acts are an injury to his reversionary interest; but the fact is, he has no such reversionary interest at present — ho had none when the suit was brought, and it may at least be doubtful whether he ever will have any to injure.

Such contingencies as these, so remote, so uncertain, can be neither seen, felt, nor'handlod by the law. Supposed injuries to such contingencies can not, at law, be measured, and the law is incompetent to mete out redress.

In cases somewhat analogous to this, courts of equity will interfere by injunction, to stay waste, or groat injury to property, by a vendee who is insolvent, until he performs, or gives security to perform, his contract; but I know of no ease in equity, sustained against a solvent vendee, who can be made to respond in damages, or by a comjilianco with his contract.

In the case at bar it is clear to us the action, so far as this first Count in the declaration is concerned, can not bo sustained for an ■injury to a reversionary interest.

Can it bo viewed in any more favorable light for the plaintiff? Suppose wo call it an action of waste, as suggested by one of the ■learned counsel? At common law, waste would lie against tenants in dower, tenants by the courtesy, guardians in socage or chivalry, etc.; but it would not lie against a lessee for life, or ■years, and the reason was, these estates were created by grant, -,and the grantors might have secured themselves against waste by -special provision in the grant.

'It was only when the estate was enacted by law, that the action ■of waste was maintainable, until the 6 Eliz. 1, when it was given by the statute of Gloucester, against tenants for life, or years, or per autre vie. 4 Kent, 79.

^-'Chancellor Kent supposes the provisions of this statute were imported by our ancestors, and ingrafted, with the- whole body of the common law, into our system of jurisprudence, as appli cable to our local circumstances; but however this maybe for the purposes of the case at bar, it is of little moment to inquire; for, if its provisions were incorporated into the statutes of Ohio, it could hardly be brought up to the rescue of this count in the declaration. ■

Between vendor and vendee, the latter is not a tenant of the former. The vendor, after sale, has no interest in the estate, unless it be an equitable lien for the purchase money, and so far as this lien is concerned, the vendee holds the land as trustee to the vendor, and not as tenant, lessee, guardian in socage or chivalry — ■ terms that are strangers to our system.

Waste is an incident to certain classes of estates, but not to such an estate as the vendor holds in the land, after sale, or conveyance. Rights resulting from a certain relation can only be claimed when such relation exists, and no relation exists here to authorize such action.

We are of opinion the first count is bad, and that the demurrer should be sustained. Case remanded.  