[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 413
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 414 The leading question in controversy in this cause concerns the ownership of the buckwheat and straw. That depends upon the answer to be given to the following inquiry: When an owner of land makes a lease, reserving rent with a condition of re-entry in case of non-payment, and the rent is not paid, and an action of ejectment is brought against the tenant by the landlord to enforce the condition of re-entry, and during the pendency of this action the tenant sublets to another, who has full knowledge of the facts, and that person sows a crop, which is harvested, but not removed from the premises, when the sheriff delivers possession to the landlord, in the action of ejectment, who owns the crop, the landlord or the sublessee? The most satisfactory mode of viewing this subject will be to consider what would have been the rights of the lessees, the Tripps, in case they had sown a crop after the action of ejectment; and then to ascertain whether the position of the defendant, in any respect, differs from theirs. *Page 416
The rights of the lessees, had they been in possession when the action of ejectment terminated, would have been governed by the law of emblements. It is a perfectly well-settled rule, that a tenant has no right to emblements when his lease is terminated by a paramount title, wholly subverting his own. For example, where, on the foreclosure of a mortgage, the mortgagee enters by force of a superior title, whatever crops are then growing upon the land, whether planted by the mortgagor or by a lessee taking his lease in subordination to the mortgage, pass to the purchaser at the foreclosure sale. (Shephard v. Philbrick, 2 Denio, 174.) This doctrine would have been plainly applicable to the lessees in the present case, had the crop been growing upon the land when the plaintiff took possession. An entry for condition broken would have defeated the estate of the Tripps ab initio, and would have transferred the growing crops to the plaintiff. The lessees would have had no equitable claim to emblements, as the termination of the estate would have resulted from their ownact in not making payment of the rent. The whole law of emblements is derived from a rule of public policy. Its object was to encourage agriculture, by giving to such tenants as held a possession terminable upon some uncertain event, a return for the capital and labor laid out and expended upon the land of another. There is no color for the view that any such allowance can be made in favor of one who has a fixed term, or whose estate terminates (though indefinite in its original duration) by his own act. Thus, if an estate be given during widowhood, and the tenant marry while a crop is growing, she is not entitled to emblements.
It may, however, be claimed that this doctrine only terminates the lease at the time of actual entry on the part of the landlord, and accordingly, that all crops harvested after the act of forfeiture but before re-entry by the landlord, have been so completely severed from the soil, that he can make no claim to them. It will be urged on this view that, as in the present case, the crops were severed from the land before *Page 417 the landlord took possession of it, he had no title, and was driven to his claim for mesne profits, according to the ordinary practice in ejectment proceedings.
To meet this objection, it is necessary to consider the nature of an action of ejectment for condition broken in a lease or other conveyance. The old method of resuming possession on condition broken was by an actual entry of the grantor or his heirs upon the land. This was found to be practically inconvenient and statutory substitutes were resorted to. The Revised Statutes provide that, "whenever a half year's rent or more is due, * * * if the landlord has a subsisting right by law to re-enter for the non-payment of rent, he may bring an action of ejectment for the recovery of the possession of the demised premises, and the service of the declaration shall be deemed and stand instead of the demand of the rent in arrear and of are-entry on the demised premises." (2 R.S., 505, § 30.)
In the lease in controversy in the present case, there was an express agreement that the landlord might re-enter for non-payment of rent. If there had been an actual re-entry for condition broken at the time when the action of ejectment was brought, the title of the Tripps would have been defeated abinitio, and the land, with all its accretions, would have been vested in the plaintiff. As the commencement of the action is made, by the above cited statute, equivalent to a re-entry, the landlord must be conclusively presumed to have taken possession at the moment of the service of the complaint in this action. The lessees, if still there, could not be assumed to hold adversely, but rather, in some manner, consistent with the paramount right of possession of the plaintiffs. They might be assumed to be her bailiffs or servants. When the landlord actually took possession at the termination of the action, it would relate back to its commencement. The effect of an entry by a lessor, where he may lawfully make it for a breach of condition, is to determine the estate of the tenant altogether, and wholly revest the same in the lessor or his assigns. The property is held on the same conditions as if *Page 418 the estate to which the condition was annexed had not been granted. (2 Wn. on Real Prop., 11 parag., 13, and cases cited [3d ed.]; 2 Cruise Dig., 36 [Greenlf. ed.].)
The result of this discussion is, that had the lessees been in possession when the action was brought, any crops subsequently sown before its termination would have vested in the plaintiff.
The defendant is in no better position than his lessors would have occupied had they remained owners. It is undoubtedly true that a sublessee is frequently in a better position in respect to emblements than the original lessee. Any distinctions, however, between their rights in this respect, rests upon the rule of public policy already alluded to. If, for example, a lessee, having made an underlease, terminates his estate by his own act, he would have no emblements, though the underlessee would be allowed them. Accordingly, it has been laid down that if a tenant for years, whose lease depends on a certain condition, underlets the land, and his underlessee sows corn, and afterwards the first tenant breaks the condition, and so forfeits the lease, by means of which they are all ousted, the undertenant is, nevertheless, allowed to enter and cut the corn when it is ripe. (Oland v.Burdwick, Cro. Eliz., 46; Bevans v. Briscoe, 4 Har. Johns., 149; Taylor on Landlord and Tenant, § 536.)
The condition having been broken after the underlease was made, it was reasonable in these cases that emblements should be allowed, as the underlessee had no reason when he took the premises to anticipate the special mode by which the lease was terminated, and to which his own act in no respect contributed.
In the case at bar, there was no uncertainty when the sublessee's interest would terminate, except that which is necessarily involved in the progress of a law suit. The defendant, before his crops were planted, was well aware of the risk he ran. Having chosen to assume it, he cannot complain of the consequences. The recovery in ejectment is conclusive against him, as he derives all his title from the defendants in that action. (Jackson v. Stone, 13 J.R., 447.) *Page 419 Stockwell v. Phelps (34 N.Y., 363) does not govern the present case. There a party in ejectment claimed to hold adversely to the plaintiff, and, during the adverse possession, hay, produce of the premises, was sold. It was decided that the plaintiff could not, on his recovery, claim the hay, but was driven to his action for mesne profits. In the present case there is no adverse holding. A landlord is resuming possession for condition broken, under a statute which declares the commencement of his action equivalent to a re-entry at common law.
It is, however, objected that there is no clear proof that the present action is brought as a matter of re-entry for the non-payment of rent. It is a simple action of ejectment, setting forth, in the general manner permitted by the Revised Statutes, the title of the plaintiff in fee simple, and a wrongful possession and claim by the defendant. It is urged that this action is perfectly consistent with an ordinary case of adverse holding by the defendant. The answer to this view is, that it was admitted on all hands that at the time of the commencement of the action, there was a lease subsisting between the plaintiff and the Tripps, lessees of the defendant. This lease the defendant sets up in his answer and relies upon it as being still a ground upon which he can defeat the plaintiff's action. It would not be consistent with the plaintiff's duties as lessor to have brought the present action on any other ground than that of the forfeiture of the lease itself. It was an instrument under seal, and the plaintiff would have been estopped from making any claim to the property inconsistent with the relation of landlord and tenant. It is unnecessary to cite authorities to establish a principle so elementary and so familiar. The action, therefore, according to all ordinary presumptions, must have been brought upon some condition of re-entry in the lease itself, and, accordingly, the principles discussed in this opinion must be deemed to be applicable.
The rules followed in this case are fully sustained by the authorities. In Hodson v. Gascoigne (5 Barn. and Ald., 88), an action of ejectment was brought against A, by his landlord *Page 420 there being rent in arrear. The date of the declaration was December 5, 1815; the judgment was rendered July 1, 1816. There were then crops growing on the land. The court said that after the judgment was obtained in ejectment, the defendant was a trespasser from the day of the demise laid in the declaration (December fifteenth). The property was from that time divested out of him, and he had no property at the time when the execution was delivered to the sheriff. It was further said that the landlord might, in an appropriate action, have recovered the value of all the crops. TINDAL, arguendo, for the plaintiff, said: "The judgment in ejectment is that the plaintiff recover his time against the defendant of and in the premises aforesaid. The writ orders the sheriff, quod habere facias possessionem. This can only bind from the time of the execution of the writ, for in an action for mesne profits, the course is to give damages up to the time of the execution of the writ. It cannot have any retrospective power so as to take away any right vested in a purchaser of the crops. Suppose, for example, the tenant has sold the crops to a purchaser, and after the sale the sheriff entered under the habere facias, etc., would the landlord in that case have been entitled to the growing crops?" BAYLEY, J., replied, "I think that he would, if the sale took place subsequently to the day of the demise laid in the declaration of ejectment, for, from that time, the tenant must be considered as a wrong-doer."
The principle is thus stated in Adams on Ejectment (416, 4th ed.): "When the sheriff delivers possession of the land under the writ of habere facias possessionem he thereby also delivers possession of the crops upon it, and such crops will pass to the lessor although severed at the time of the execution of the writ, provided such severance has been made subsequently to the determination of the tenant's interest, and of the day of the demise in the declaration (citing Doe v. Witherwick), and the growing crops will also pass to the lessor by the execution of the writ of possession, although previously siezed under a fierifacias against the tenant, if the day of the demise in the declaration be prior to the issuing *Page 421 of such fieri facias, inasmuch as they cannot be said to belong to one who is a trespasser from that day." The same rule is stated in Tyler on Ejectment, 590.
In the case of Doe v. Witherwick, referred to by Mr. Adams, the facts were, that the defendant was a lessee, and his term having expired on the 6th of April, 1824, and having refused to quit, the lessors of the plaintiff in an action of ejectment were put in possession under an habere facias, etc., in the ensuing August, at which time some grass crops were lying on the ground, together with nine acres of oats, which the defendant had recently severed, and the plaintiff was put in possession of these also. PARK, J., said, that as the tenancy expired in April, though the writ of possession was not executed till the month of August following, during that intermediate period he was clearly a trespasser. GAZELEE, J., said, that the defendant ought to have quitted on the expiration of his term, and the plaintiffs are entitled to the mesne profits, from that time till the writ of possession was executed. (10 J.B. Moore, 267.) In the same case, as reported in 3 Bingham, 11, it is stated that the court were of opinion that the defendant had no merits.
The objection that there were sixteen bushels of other grain mixed with that belonging to the plaintiff, and that therefore the action will not lie, has no force. At most, it only presents a case of confusion. The court cannot undertake to separate from the mass, the grain belonging to the defendant. If he cannot do so, the loss results from his own act.
The other points in the case require no special consideration. As to the farming utensils belonging to the plaintiff, and removed without just cause by the defendant, there was evidence of such an act of ownership by the latter as to justify the plaintiff in including them in the litigation. The subsequent disclaimer of title by the defendant would not subvert a cause of action that had once vested in the plaintiff.
The order of the General Term should be reversed, and judgment ordered for the plaintiff on verdict. *Page 422