
    Cyrus D. Hibbard, appellant, v. Chauncey Ramsdell and Morgan Dix, respondents.
    
      (Supreme Court, General Term, Fourth, Department,
    
    
      Filed July 1, 1886.)
    
    1. Lease—Eor lives, presumed to be in existence till shown to have
    lapsed—New lease a nullity without such proof.
    In 1816, M., the owner of certain lands, executed a lease of them to F. for the term of the lives of three persons named and the survivor of them. In 1868, G. became the owner of lessee’s interest in said lease. In 1879, all of G.'s interest was sold to H , the plaintiff herein. Five days thereafter H. agreed in writing to sell to defendant R., who agreed to buy, the said lease for $800, payable in installments. R. entered into possession and paid as agreed until May 1, 1880. There is about $600 unpaid. Defendant D., who became owner of the fee prior to 1879, leased this same land, in October, 1880, to R. for ten years, who has since held possession under the lease of 1880. Plaintiff asks to have the lease of 1880 declared void and that defendant D. be adjudged to execute a new lease to plaintiff on the same terms: Held, that if the evidence is wanting to show a termination of the lease of 1816, plaintiff’s case must fail, because with that lease presumptively in existence, he has suffered no wrong except the non-payment of its purchase price. That the new lease would then have been a nullity, because until the termination of the old lease defendant had no t.tle which he could lease.
    2. Same—Holding title under dead lease gives no right.
    If the old lease was proved to have expired prior to 1880, the plaintiff having had nominal title to the dead lease for five days, but never being in actual possession of the premises: Held he had no right to possession and could not give a rightful possession to defendant. He could not make a valid contract to assign what did not exist.
    3. Same—Renewal, to whose benefit it inures.
    He could not by custom or otherwise have any right to a renewal of the old lease, and hence no renewal could inure to his benefit.
    4. Practice—Equity will not enforce contract void at law.
    Where the contract is so far void that an action could not be maintained at law for the money, equity cannot be invoked to establish such void contract to secure a debt which is in law no debt.
    Appeal from a judgment of supreme court at special term.
    In 1816 one Morgan, the owner of the fee, executed a lease of one hundred acres of land to one Fenner during the lives of three persons named, and the survivors or survivor -of them. In 1868 one Gheesbro became the owner of the lessee’s interest in said lease; In February, 1819, all of the interest of Cheesbro’s estate (he being then dead) was sold and conveyed to the plaintiff. Five days thereafter the plaintiff, in writing, agreed to sell to defendant, Ramsdell, who agreed to buy the said lease and pay therefor eight hundred dollars in installments, with interest. The defendant, Ramsdell, entered into possession, and until May 1, 1880, paid rent according to the terms of such lease. There remains unpaid upon the contract from Ramsdell to plaintiff over $600, mostly due. About October 1, 1880, defendant Dix, who had prior to 1879 become the owner of the fee, leased the one hundred acres described in the lease of 1816 to the defendant, Ramsdell, for ten years, and the defendant has since held possession under such last lease. This action was brought in 1882, and the relief demanded was:
    
      First. That the lease of October 1,1880, be declared void, and that defendant, Dix, be adjudged to execute a new lease to plaintiff on same terms.
    
      Second. That plaintiff be adjudged to have the right of possession, and that defendant, Ramsdell, be decreed to assign to him the lease of October 1. 1880.
    
      Third. That plaintiff’s interest under this contract with Ramsdell be adjudged a lien upon his leasehold interest.
    
      Fourth. That defendant, Ramsdell, account for income and of the and
    
      Fifth. That plaintiff recover a judgment for amount due him from defendant Ramsdell, and that the judgment be declared a lien upon defendant Ramsdell’s leasehold interest and for a sale of same to satisfy such judgment.
    The answer of defendant Ramsdfell in effect denies the allegation of the complaint except the contract between him and plaintiff and the execution of the new lease of October 1, 1880, and his possession under it. It also alleges that the lease of 1816 had expired before the making of the contract with plaintiff, which was without consideration and void; that plaintiff had no interest in February, 1879, in or to said lease of 1816, or in and to the lands therein described. The decision of the judge at special term was with the defendant, and the plaintiff appeals to this court.
    
      John D. Gibson, for the plaintiff, appellant, Cyrus D. Hibbard.
    
      Ulley & Howe, for respondent, Chauncey Ramsdell.
    
      Loton S. Hunt, for respondent, Morgan Dix.
   Boardman, J.

The points taken by the learned counsel for the appellant will be considered in the order in which he has taken them.

Objection is made to the finding that “at the date of the conveyance (Cheesbro to plaintiff), none of the lives upon which the lease rested were in being, the last fife having-expired in 1878.” The exception is based upon the insufficiency of the evidence to sustain it.

The plaintiff in his complaint alleges that the fives measuring said lease of 1816 were ended, and the same was terminated prior to October 1, 1880. His witness, Hunt, is examined by him upon that subject and testifies, as one must understand him, that the last of the three fives ended in 1878. Such being the allegations and evidence of the he is not at now to it.

But if we assume the evidence is wanting to show a termination of the lease of 1816, then the plaintiff’s case must fail, because with that lease presumptively in existence, the-plaintiff has suffered no wrong except the non-payment of its purchase-price. He agreed to sell it for a stipulated price and to assign it when the price was fully paid. He had his right of action at-law for so much of the money as was due. He had no equities because his condition was not affected by the conduct of Eamsdell and Dix. The new lease would then have been a nullity because, until the termination of the old lease Dix had no title to the land which he could lease. The whole theory of plaintiff’s cause of action is founded upon the termination of the old lease and the execution of a new lease to Eamsdell in October, 1880, of the same premises.

The court found “that no fiduciary relation existed between the parties in relation to either of the leases. This-finding of law is supported by the 2d, 5th and 8th findings of fact and the terms of the written contract between the parties, dated February 18, 1879. If the plaintiff had no. title or interest on that day to the premises, he could not transfer any interest by his contract, nor could the defendant Eamsdell acquire any interest from one who had noiie. It is difficult to see how a trust case can be created in favor of the plaintiff in respect to property or rights which he never possessed. But the contract imposes no character of trust and confidence upon the defendant. He agrees to pay plaintiff §800 for a lease thereafter to be assigned when such payment is made. If that contract was valid and binding the plaintiff had his right of action for the money as it became due. The defendant is not insolvent so far as appears. If the contract was so far void that an action could not be maintained at law for the money, with what propriety can equity be invoked to establish a void contract, to secure a debt which is in law no debt ? The plaintiff had the nominal title to the dead lease for five days. He was never in the actual possession of the premises so far as appears. He had no right to the possession and could not give to the defendant a rightful possession because he had none to give. Never having had the title to the lease of 1816, while it was alive, he could not, by custom, or otherwise, have had any right to renewal, and hence, no renewal could be made to inure to his benefit. Assuming that the old lease expired in 1878, as is found by the court," that no fiduciary relations could have existed between the parties in respect to the lands described in the two leases, or in such leases.

There is no evidence which would justify a finding that Ramsdell procured the lease of October 1, 1880, by fraud. The eighth finding of fact negatives any claim of bad faith ■or dishonesty on the defendant’s part.

We concur in the views of the learned justice at September term, and to the assignability of the old lease in 1879; as to the effect of such attempted assignment; as to its tenants’ right of renewal and its application to the present case, and as to the equities of the parties to this action. We think the opinion in these respects is sound, and is sustained by the authorities cited therein.

But if we are correct in saying the plaintiff was never the ■owner of the old lease, before it expired, it would seem that these various legal questions were of trifling importance, because then the plaintiff never owned the old lease, never could assign or agree by valid contract to assign what did not exist, never had a- right of renewal by custom or otherwise of a lease which he never had or owned, and, as a final consequence, never had any right of action in equity •against the defendants for the acts lawfully done by them in the autumn of 1880.

The plaintiff has lost the benefit of a bargain made unless, he can enforce it by action at law. The defendant Rams-■dell, if he can escape such payment, has made a good purchase or lease of valuable property at a low rate. But we can find no reason for adjudging the plaintiff entitled to the aid of a court of equity in giving to him what he hoped ho obtain by his contract with Ramsdell.

We think the judgment should be affirmed, with costs.

Hardin, J., concurs, Follett, J., not sitting.  