
    Ira Emerson and others, infants, by George Clark, their guardian, vs. Ramiro E. Spicer.
    A guardian in socage has power, as such, to lease the lands of her infant wards until they shall become of age.
    A lease executed by her, for a term of years, is prima facie a valid instrument, but is subject to be avoided, either by the coming of age of the infants, or by the appointment of another guardian.
    The lessee takes his lease subject to the contingency of its being put an end to;
    and upon the appointment of a new guardian and his election to terminate " the tenancy, the lessee is bound to leave the premises.
    Such election may be made by a demand of possession of the premises, or the commencement of an action to recover the possession.
    ACTION to recover the possession of real estate claimed by the plaintiffs as heirs at law of James Emerson, deceased.
    James Emerson, the father of the infant plaintiffs, died intestate, on the 14th of September, 1864, seised of about 107 acres of land, o.n which he resided, and leaving the plaintiffs his only children and heirs at law, and his widow, Esther B. Emerson, who continued in the possession of the said premises, with the plaintiffs, who constituted her family. Her dower in the lands was never admeasured or assigned to her. The widow was, on the 29th of October, 1864, duly appointed administratrix of her husband’s estate. On the 31st of January, 1866, she executed to the defendant a written lease of the said premises, and certain personal property, for the term of three years from April 1st then following. The defendant entered into possession of the premises, under and by virtue of the lease, and was in possession at the time of the commencement of this action, claiming the right to retain the same to the end of his term, viz., the 1st of April, 1869, by virtue thereof. During this period, Mrs. Emerson occupied a portion of the dwelling-house on the premises, under said lease, the plaintiffs residing with her; and she received her share of the proceeds of the farm, which were used for the support of herself and the infant plaintiffs.
    
      On the 12th of March, 1868, George Clark was appointed guardian of the infants, and having demanded of the defendant a surrender of the premises, he, on the 23d of April, 1868, commenced this suit, to recover the possession.
    The action was tried October 18, 1868,. before Justice Mullin, without a jury, who ordered a judgment declaring that the defendant was unlawfully in possession of the premises, and that the plaintiffs were entitled to immediate possession thereof, and to $106.32, costs of the action.'
    The following opinion was delivered by the justice before whom the action was tried:
    
      Anson B. Moore and John G. McCartin, for the appellant.
    
      S. H. Hammond, for the respondent.
   Mullin, J.

The plaintiffs are entitled to judgment. The mother was guardian in socage, and as such had power to lease the lands of her wards until they became fourteen years of age, or another guardian was duly appointed. (3 R. S. 5th ed., p. 2, §§ 5, 6, 7.) On the appointment of another guardian, her power to lease, and all leases made by her of the wards’ lands, ceased. (Sylvester v. Ralston, 31 Barb. 286. 2 Kent’s Com. and note f. Roe v. Hodgson, 2 Wil. 129, 135. Field v. Schieffelin, 7 John. Ch. 150. Holmes v. Seely, 17 Wend. 75. Putnam v. Ritchie, 6 Paige, 399. Byrne v. Van Hoesen, 5 John. 66.)

It follows that the lease of the mother was valid only until Clai’k was appointed guardian, and the defendant is not protected by it. Judgment is therefore ordered in

favor of the plaintiffs, for the premises described in the complaint, in fee.

Judgment being entered accordingly, the defendant appealed.

By the Court, Bacon, J.

The mother of the infants was guardian in socage of her children, who were owners of the fee, and she had, as such, power to lease the lands until they should become of age. The lease under which the defendant claimed to hold was prima facie a valid instrument, but it was subject to be avoided either by the coming of age of the infants, or by the appointment of another guardian. The youngest child was not fourteen when this suit was commenced, but on the 12th of March, 1868, George Clark was duly appointed guardian of the infants, and as such, on that day, he demanded of the defendant a surrender of the premises, and on the 23d of April, 1868, commenced this suit.

The statute (3 R. S. 5th ed., p. 2, § 7) provides that the rights and authority of every guardian in socage shall be superseded in all cases where a testamentary or other guardian shall have been appointed.

The question is, whether by this appointment the lease was absolutely avoided, or was only voidable at the election of the guardian. In Roe v. Hodgson (2 Wil. 129) this question was discussed, without a definite decision; but on a subsequent day the court unanimously held that the lease was void. (Id. 135.) It is somewhat singular, but this precise question does not seem to have been passed upon in any case reported in this State, nor in this country, except in the case of Snook v. Sutton, (5 Hal. 133,) which holds that the lease of an infant’s lands, extending beyond the age of fourteen years, is voidable, provided the infant be then entitled to choose a guardian; or it may be avoided by the.guardian chosen by the infant. If not absolutely void by the supersedeas of the statute, the guardian is authorized to determine the lease; and that was done, in this case, by the notice, or at all events by the commencement of this suit, which was an express determination and notice that the lease was determined, and the defendant was holding over without right. The defendant took his lease subject to this contingency, and was hound to leave upon the election of the guardian to terminate his tenancy.

[Onondaga General Term,

October 5, 1869.

I think the judgment should be affirmed.

. Judgment affirmed.

Morgan, Bacon and Foster, Justices.]  