
    William, Earl of Craven, and another, vs. John S. Price.
    Where, in an action for wrongfully withholding from the plaintiffs the possession of certain land of which they were the owners in fee, and cutting and severing grass from such land, and making it into hay and converting it, the defendant admits the title to the land to be in the plaintiffs as alleged, but claims that he was rightfully in possession of the premises, and had a right to cut and dispose of the hay, under the license and permission of the plaintiffs, by virtue of an executory contract by a third person to purchase the land, the title to land does not arise; and if the plaintiff recovers a verdict for $15 only, the defendant is entitled to costs.
    APPEAL by the plaintiffs from an order made at a special term denying a motion for a retaxation of costs.
    
      C. W. Brandt, for the appellants.
    
      Hakes & Stevens, for the respondent.
   By the Court, Marvin, J.

The plaintiffs alleged, in their complaint, that they were the owners in fee of certain land described; that one Albert G-. Brown wrongfully withheld possession from them, and cut and severed certain grass from the land, and made it into hay; that the hay was the property of the plaintiffs, as alleged; second answer—a denial of all the other allegations in the complaint ; third- answer—alleges that the plaintiffs had a right to the possession of the land, and that Brown was lawfully in possession, under license and permission of the plaintiffs, and those who were the owners thereof prior to the plaintiffs, under and by virtue of an executory contract for the purchase of the land by Brown, with the license and permission of the plaintiffs, with the right to the possession and rents and profits thereof; and that while so in possession, Brown cut the hay, as he lawfully might, and sold it to one Ewers, who transferred it to the defendant, and the latter took it away, as he lawfully might. The plaintiffs had a verdict for $15, and the clerk taxed costs in favor of the defendant.

Does a claim of title to real property arise on the pleadings in this case? It is argued that the third answer raises the question of title, as it states that Brown was lawfully in the possession of the lands, under the license and permission of the plaintiffs, and those who were the owners thereof prior to the plaintiffs, under and by virtue of a contract for the purchase of the lands by Brown, with the license and permission of the plaintiffs, with the right to the possession, and rents and profits thereof. What does the pleading here mean? It is claimed that under the allegations here made, the defendant, on the trial, would have been permitted to prove title in prior owners, and a contract with Brown for the purchase of the land, and license to possess the land, &c. The defendant, however, says Brown was in possession under the license and permission of the plaintiffs and those who were the prior owners, under a contract, &e., with the license and permission of the plaintiffs. Brown’s possession was under the license of the plaintiffs, and if other persons who were previous owners, assented thereto, how could that affect the question of license ? Again; Brown was in possession under a contract to purchase, with the license and permission of the plaintiffs. The license and permission of the plaintiffs for what ? Clearly, to possess. The defendant did not propose by his answer to defend upon the ground that Brown was rightfully in possession under and by virtue of a contract to purchase the land of some prior owner, simply, hut he avers that his possession was under the license and permission of the plaintiffs. The fair construction of the answer is, that Brown’s possession and right to cut and dispose of the hay, was under the license and permission of the plaintiffs.

[Erie General Term,

November 18, 1867.

I think the order appealed from should he affirmed, with $10 costs.

Order affirmed.

Daniels, Marvin and Davis, Justices.]  