
    Samuel H. Smith v. Henry L. Babcock and others.
    In an action by a vendor to recover damages for the removal of a building standing upon premises sold under executory contract, while the premises were in the possession of the vendee, it is competent for the defendants to prove that the plaintiff had no title to the premises in question at the time of making the contract or at any time afterward, and no power or means of procuring such title.
    The instances considered in which a party may deny the title of his vendor.
    Where the persons against whom the action is brought have made no contract^ . but are trespassers simply, the idea of estoppel or of privies is inapplicable. They arc liable to the real owner for an injury to the reversion, and in an action against them for such damages, may show that the plaintiff is not such owner.
    This was an action to recover damages for the removal of a building from certain premises in Catón, Steuben county, which premises had been sold by executory contract, by the plaintiff to one Catharine Herrick, and had afterward come back into his possession,_ by reason of the non-performance of the contract by the said Catharine Herrick. The facts are. stated in the opinion of the court.
    
      G. B. Bradley, for the appellants.
    
      Geo. T. Spencer, for the respondent.
   Hunt, J.

This is a special action for injury to the plaintiff’s interest in the property described in the complaint. The plaintiff sold the property to Catharine Herrick by a written contract, in which (a certain cash payment being made) it was agreed that the payments stipulated, were to be made at a future day, at which time the deed was to be executed by the plaintiff, and in the mean time the purchaser was entitled to possession. While thus in possession, and before the arrival of the stipulated time of payment, the injury complained of, was committed. The plaintiff alleged and proved that a building erected upon said premises was. injured, and a portion of the same entirely removed from the premises. Evidence was given at the trial to show that the injury was committed by the direction of Mr. and Mrs. Herrick, with the assistance of each of the defendants. After hearing the evidence upon both sides, the judge, holding the circuit declined to submit the case to the jury on the question of liability, but charged the jury as matter of- law that each of the defendants was liable, and that the only question for th.e jury to pass upon, was the amount.of damages, to which. the plaintiff was entitled. During the trial, the defendants offered to prove, “ that the plaintiff had no title to the premises .in question, at the time of making the contract with-Mrs, Herrick, or at any other time afterward, and that he did not then have and has not at any other time .had- any means, power or authority, of procuring a title thereto.” This evidence was excluded and the defendants excepted. The jury rendered a verdict for the plaintiff, and upon appeal to the General .Term of .the seventh district, the Supreme Court -affirmed the judgment rendered thereon. The defendants now appeal to this court.

The.rejection of this evidence,.was sustained in the court below, on the ground that Mrs. Herrick, having recognized the plaintiff’s title, by her contract of purchase, was estopped to deny it, and that the acts of the defendants having been under her direction, they were estopped also. The court also say in this connection, that the offer of the defendants was not to show that they or either of them had title to the" premises but that the plaintiff had none.

A party in possession of premises- under a lease, or under a contract of purchase, is certainly estopped for some purposes from denying the title of his vendor, or lessor. This is upon the principle that he shall not use .the possession acquired from an apparent owner, to the injury of such owner.

' Whenever, therefore,, the. tenant surrenders possession to the lessor, or his term expires, the rule no longer applies, but he is at liberty to assert a right without .the consent of the lessor. (Child v. Chappel, 5 Seld., 246.) Having given up the advantage of the position received under a claim of title, he is no longer subject to its disabilities. (Jackson v. Spear, 7 Wend., 401.) This rule of estoppel, it is to be .observed, does not apply when the action does not involve the right of possession. Thus, while a tenant cannot deny his landlord’s title, in an action to recover possession, or for the rent, when the lessee has actually enjoyed the premises, yet he may do so when he has not actually occupied the premises (Vernam v. Smith, 15 N. Y., 328, and authorities cited, pp. 329, 330, q. v.); and in an action to recover the amount agreed to be paid on a- contract of purchase, the purchaser may defend on the ground that the seller has and can give no title. (Burnell v. Jackson, 5 Seld., 535; 4 Comst., 396; 11 Vesey, 337; 18 id., 508; 9 Price, 488.) In the one case, it would be most unreasonable for a lessee, who has had the full use and benefit of his lease, to say that his lessor had no title. The implied covenant for possession is a Sufficient consideration, and whether he had title or had not, the lessee has received the expected benefit, and should pay the promised rent. In the other case, where A, without title, agrees to sell certain premises to B, who, supposing that a title can be given, agrees to, pay the purchase-money, it would be unreasonable to compel B to pay the promised sum, when it became clear that A could not perform on his part by giving title. The. distinction is manifest and is recognized by the authorities cited above.

In the case before us, the action is not for an injury to the possession. The right of possession was in Mrs. Herrick exclusively, at- the time of the transactions in question, and such action would be hers exclusively. It is for an injury to the reversion, for an injury to the plaintiff’s interest in the property itself, and at the time the action was brought Mrs. Herrick had abandoned the possession and the plaintiff had resumed it. Hpon the principles. stated, it is not clear that Mrs. Herrick herself would be estopped from questioning the ownership. She had yielded what she had received from the plaintiff, to wit, the possession, and both parties stood remitted to their original rights. If she had despoiled the property she was liable in damages to the owner, and to no one else, and a recovery by a pretended vendor, would not protect her against the claims of the real owner. v

But the defendants in this action had made no contract whatever with the plaintiff. At the request of Mrs. Herrick, as is assumed, they had injured the house upon the premises. They were doubtless responsible for this act, and could not shield themselves under the direction of Mrs. Herrick, except so far as her interest was affected. But they were not responsible farther or ■ otherwise than they would have been if they had committed the injury from their own volition, and without the interference of Mrs. Herrick. A trespass is not aggravated by the circumstance that it is committed at the instance of one having no right to interfere.

The idea of privies is inapplicable to such a, case. The defendants have no, title and no rights in the premises under any one, and claim none. They are strangers, legally and technically. (Campbell v. Hall, 16 N. Y. 578, and cases cited.) The defendants were therefore responsible to the possessor of the property for injury to the possession, and to the owner of the fee, if the injury affected the reversion. The direction of the actual possessor was a defense to any claim to be interposed by her, and they remained responsible to the owner of the' reversion alone. We are to assume the offer to be capable of proof to its full extent, and if we suppose .that the plaintiff at the time of the injury had no title to the property, that he has had none since, and no power or authority to procure it, how are the defendants to be protected from the claim of the real owner when he shall appear ? A recovery in favor of a pretender will not protect them. The rights of the actual owner would not be affected thereby.

The case of Dewey v. Osborn (4 Cow., 329) is cited by the respondent, and in some of its features it is very like to the present case. The plaintiff there recovered in ejectment against Barker, and intermediate the judgment and the issuing of a habere facias, the defendant in that suit, with the aid of his neighbors, of whom Osborn was one, removed a building from the premises on to an adjoining lot of Barker’s. In an action to recover damages.for such removal, it was held that the record of recovery in the suit against Barker was competent evidence in the latter suit. • The defendant Osborn did, as the report shows, attack the actual title of the plaintiff, but failed in shaking it, and the court sustained the recovery by the plaintiff.

There is also a class of cases, of which Whitney v. Lewis (21 Wend., 131) is an example, in which the covenant for quiet enjoyment was held to be a sufficient consideration for the agreement to pay, and until the defendant was disturbed in his possession he could not set up the want of title as a defense to his bond for the purchase-money. This is like the case of possession under a léase already discussed, and is expressly distinguished in Burnell v. Jackson, supra, from the case of an executory contract to convey.

I think there was error in excluding this evidence, and upon that ground, without examining the further questions in the case, there should be a new trial.

All concur.

¡Reversed.  