JACKSON, ex dem. BEEBE, against AUSTIN. THIS was an action of ejectment for part of lot No. 45, in the town of Locke, in the county of Cayuga: the parties, by consent, without trial, made a case for the opinion of the Court, which was submitted without argument. of lands, sold at the saine ment, which The plaintiff and defendant both derived their title from John and conveyed Van Deusen, who went into possession of the premises in ques- time, to secure tion as assignee of one Bailey, to whom they had been leased the payment of the purchase by Isaac Cooper. On the 21st of October, 1815, Van Deusen money, to aay surrendered the lease to Cooper, and took a deed from him for previous jugthe premises, for the consideration of 500 dollars. The lessor may have been of the plaintiff, on the same day, at the request and for the ben- obtained against efit of Van Deusen, *executed a note to Cooper, for the amount [* 478 | of the consideration money, which the lessor afterwards paid; is restricted the purchaser, and Van Deusen, on the same day, executed a mortgage to the to the case of a lessor of the plaintiff, of the premises in question, as his indem- mortgage to the nity for the note which he had given. The mortgage was duly land,there being recorded on the 31st of October, 1815, and on the 10th of No- no restriction in vember, 1817, the premises were sold, under the power contain- statute concerned in the mortgage, and were bid off by an agent of the lessor ing mortgages, of the plaintiff, to whom the lessor conveyed them, and he re- s. 15, by which conveyed to the lessor. this preference is created; and, vendor of the the words of the sess. 36. c. 32, be advanced by a third person, to whom the the same tinie purchaser, at Previously to the execution of the mortgage, Walter Wood therefore, if the obtained a judgment in the Court of Common Pleas of Cayuga purchase money county, against Van Deusen, and one Solomon Austin, for 228 dollars debt, and 10 dollars damages and costs, which was filed and docketed on the 15th of September, 1815. A fi. fa. was issued, and the premises in question were levied upon, and were sold by the sheriff, on the 12th of March, 1816, to the defendant. A deed was executed on the same day by the sheriff to the defendant, which was duly acknowledged and recorded on the 22d to secure the of March. that the conveyanceis executed to him, executes mortgage of a the same land, ad money titledtothe same preference over vendor of land had the mort Per Curiam. The question of priority will.depend on the statute, (1 N. R. L. 375.) (a) which declares that whenever a prior judg lands are sold and conveyed, and a mortgage is given by the ment, as the purchaser, at the same time, to secure the payment of the pur- would have had, chase money, money, such such mortgage shall be preferred to any previous gage been exejudgment which may have been obtained against such purchaser. cuted to him. The mortgage in this case comes within the letter of the act. It was executed by the purchaser, Van Deusen, to secure the purchase money, and was given at the same time with the deed, although not given to Cooper, from whom Van Deusen derived title. But this cannot vary the principle upon which the statute appears to be founded. The lessor of the plaintiff advanced the (a) 1 R. S. 749. Oct. 1818. NEW-YORK, purchase money, and took the mortgage to himself. The act probably contemplated cases where the mortgage was given to the seller of the land. But the words of the act are not restricted to such cases, and a just and fair construction *will warrant DECKER V. LIVINGSTON. its application to the present case. The plaintiff is, according [* 479 ] ly, entitled to judgment. Judgment for the plaintiff. (a) (a) Vide Stow v. Tifft, ante, p. 458. Clark v. Munroe, 14 Mass. Rep. 351. In an action other cause, ac marriage, in re gard to the real wife, she must but for rent of joined. DECKER against R. S. LIVINGSTON and others. THIS was an action of replevin, in which the defendants for rent, or any made avowry for rent arrear. band distrains the land of his the proceedings, that the rent for this cannot [* 480 ] be not shown, *The plaintiff produced in evidence two receipts, signed by and if that fact the defendant, John S. Livingston; one dated the 10th June, the objection 1815, by which he acknowledged that he had received from the may be taken plaintiff 37 and a half bushels of wheat, for the rent of his farm, In an action due the 1st of January, 1815; and the other dated the 6th of of trespass April, 1816, for 37 and a half bushels of wheat, for the rent of brought by tenants in common, his farm, due the 1st of January, 1816. at the trial. in relation to their land, or in debt for rent arising out of land, or in any other action merely personal, they must all join as plaintiffs, and a release of the action by one of them is a bar to the others. (b) But in a distress and avowry for rent, which savor of the realty, tenants in common ought not to join; and therefore, if one releases the rent, it is not a discharge as to the others. One tenant in common may, however, before distress and avowry, receive the whole rent, and discharge the lessee, for, until distress and avowry, the rent is only in the personalty. A receipt for rent arising at a subsequent period, is presumptive evidence, that all rent, previously accru ing, had been paid. (b) Sherman v. Ballou, 8 Cow. Rep. 304. Oct. 1818. A verdict was taken for the plaintiff, by consent, subject NEW-YORK, to the opinion of the Court, on a case containing the facts above stated. Van Buren, (attorney-general,) for the plaintiff. 1. The proceedings were irregular. The distress was for rent due many years before, and before the marriage of Catharine Livingston with Stevens. She ought, therefore, to have been joined. Avowry is in the nature of an action, and all parties having an interest must be joined. (Pullen v. Palmer, Carth. 328. Page v. Stedman, Carth. 364.) In an avowry for rent upon a lease for life, or years, before coverture, the husband and wife must join. (2 Com. Dig. 105. Baron and Feme, (V.) It cannot be pleaded in abatement. (Harrison v. M'Intosh, 1 Johns. Rep. 380.) 2. The receipts offered in evidence, of the rent for the last two years, are prima facie evidence that the rent for all the former years had been paid; and not being explained or rebutted by any evidence on the part of the defendants, are sufficient to entitle the plaintiff to judgment. (1 Sid. 44. Co. Litt. 373. a. 3 Co. 65. b. 1 Esp. Dig. 71. (Debt.) Vanderpool, contra. 1. There is no irregularity. It was not necessary for Mrs. S. to be joined in the avowry. The cases cited are those of joint tenants or coparceners, and do not apply to tenants in common. It does not appear that the rent for which the distress was made, was due before the marriage of Catharine L. with the defendant S. It is laid down by Chitty, (On Pleadings, 19, 20.) that the rent or other cause of action, accruing during the marriage, on a lease, or demise, or other contract, relating to the land or other real property of the wife, whether such contract was made before or during coverture, the husband and wife may join, or he may sue alone. (Str. 230. 1 Wils. *224. 2 Lev. 107. Reeves's Domes. Relat. 30, 31.) The 19th section of the act concerning Distresses, Rents, &c. (1 N. R. L. 439. sess. 36. ch. 63.) is express, that husbands, having estates in right of their wives, may sue for the rents by action of debt, or distrain and make avowry, &c. The distinction between joint tenants and tenants in common is laid down in Pullen v. Palmer, (3 Salk. 207.) which was an action of replevin; and the Court held, that the husband may distrain for rent due to his wife, and avow for it alone, because the right to the rent due is in him alone. So, in Bowles v. Poore, (Cro. James, 282, 283.) it was objected that the avowry was bad, because it appeared that the rent in arrear was not due to the husband, but only to the wife dum sola fuit; but the objection was overruled. Tenants in common must sever in their avouries, for their interest is separate and distinct. (1 Chitty, Pl. 544. 2 Chitty, 514. 5 Comyn's Dig. Rent. (B.) 424. Co. DECKER V. LIVINGSTON. [* 481 ] NEW-YORK, Litt. 198. 285. 3 Bac. Abr. 671. (A.) Id. 690. (H. 2.) Harrison v. Barney, 5 Term Rep. 247.) Oct. 1818. DECKER V. 2. The receipts of John S. L. can be no bar to the rents due from the tenant in 1814. The cases cited do not bear out the LIVINGSTON. doctrine contended for by the plaintiff, and laid down in some treatises and elementary books. The cases speak of releases or acquittances under seal, which may be pleaded in discharge. Again; the receipt of J. S. L., alone, is no bar to the rights of the other tenants in common: the tenant was not authorized to pay their proportions of the rent to him. (Harrison v. Barney, 5 Term Rep. 247. 249.) [* 482] Two SPENCER, J., delivered the opinion of the Court. questions have been made on the argument: 1. Whether the wife of John C. Stevens ought to have been a party to the suit; and, 2d. whether the receipts of one of the tenants in common for the rent of 1815 and 1816 are available as prima facie evidence of the payment of the rent of the antecedent years. The rent for which the distress was made, accrued prior to October, 1815, but the case does not disclose for what years it grew due. Mrs. Stevens, who is one of the tenants in common, is not joined in making the distress, or avowry, with her husband; and it does not appear whether the rent claimed accrued before or after their marriage. We consider the law well settled, that for rent, or any other cause of action accruing before marriage, in regard to the real estate of the wife, she must be joined with her husband in a suit for such cause of action, but that for rent of her land arising after the marriage, she need not be joined. (1 Chitty, Pl. 17. 20, and the authorities there cited.) As it does not appear affirmatively, that the rent in question accrued after the intermarriage between Stevens and his wife, we cannot intend the fact to be so; her husband's right to sue, alone, resting on the fact, that the rent accrued after the marriage, his title is defective, if the fact is not shown; and this objection may be made on the trial. (1 Chitty, 7.) We held, in Austin and others v. Hall, (13 Johns. Rep. 286.) that a release by one tenant in common of a trespass on the lands of another tenant in common, was a bar to the action brought by them, on the principle, that the action was strictly personal, and that the plaintiffs were bound to join in it; and there can be no doubt that when there is such a unity of interest as to require a joinder of all the parties interested in a matter of a personal nature, the release of one is as effectual as the release of all. If two tenants in common make a lease of their tenement, for a term of years, rendering rent, if the rent be behind, they Oct. 1818. WHITBECK V. Соок. shall have an action of debt against the lessee, and not divers NEW-YORK, actions, for the action is in the personalty. (Co. Lit. sec. 316. 198. b.) But in an avowry for the rent, they ought not to be joined, for this is in the realty; (Co. Lit. s. 317.) and this distinction between debt for rent and an avowry, appears to have been uniformly recognized. (1 Chitty, 544.) The reason is, that the avowry savors of the realty; but until the distress and avowry, the rent is in the personalty, and then it can be released by one of the tenants in common. It is the distress on the land which makes the rent partake of the realty. The case of Harrison v. Barney, (5 Term Rep. 249.) on which very great stress was laid, simply determines that a tenant, holding under two tenants in common, cannot pay the whole rent to one of them, after notice from the other not to pay it. If he do, the other tenant in common may distrain for his share. Lord Kenyon puts his decision on the justice of the case, and that the payment was against conscience. Whether the receipts for 1815 and 1816 are presumptive evidence of payment of the rent of the preceding years, depends on the right of one tenant in common to receive the whole rent. If he had such a right, then the presumption exists; and it arises from the improbability that the former rent remained unpaid, when rent is specifically received for a subsequent period; and this presumption obtains as well where several persons are entitled to receive money, as in an individual case, for they are all to be presumed conusant of their rights. This presumption may be repelled, but standing uncontradicted, as it does here, it is decisive. (a) Judgment for the plaintiff. (a) Baldwin v. Munn, 2 Wendell's Rep. 399. Beckman v. Bemus, 7 Cow. Rep. 29. [* 483] WHITBECK against COOK AND Wife. THIS was an action of covenant, for the breach of the covIn assigning enants contained in a conveyance of land. The cause was a breach of a covenant for quiet enjoy ment, contained in a conveyance of land, the plaintiff must show an entry, and expulsion from, or some actnal disturbance in the possession. (b) It is not a breach of the covenants, that the grantor was lawful owner of the land, was well seised, and had full power to convey, that part of the land was a public highway, and was used as such; a public highway being a mere easement, and the seisin, and right to convey, still continuing in the owner of the land over which it was laid out. (c) Where a husband and wife execute a conveyance, in which they both covenant to the grantee, the wife cannot be joined with her husband in an action for a breach of the covenant, her acknowledgment having no further effect than to convey her interest in the land, and not binding her by the covenants contained in the deed. (d) Where husband and wife are improperly joined, as defendants in an action, it seems, that if the plaintiff has a cause of action against the husband, he will be allowed to enter a noli prosequi, as to the wife. (b)Vide Dyett.v. Pendleton, 4 Concen, 581. S. C. 8 Cowen, 727. Lansing v. Van Alstyne, 2 Wendell, 53 (n). (c) Vide supra, 447. (d) Vide Jackson v. Vanderheyden, 17 Johns. Rep. 167. VOL. XV. 377 48 |