C. 199. Nor could a real action be maintained against him; because he was not the owner of the realty and could plead non tenure. Booth. His interest could be devised, though at common-law, no real estate would pass by a will. Bac. Leg. B. 3; 1 Roll. A. B. 609. It has always been held, too, that after the decease of the lessee, the term belonged to his executors or administrators, and not to his heirs. 1 Leon. 312; Gillam, Adm. v. Lovelace, 5 Ma. R. 419; Pet. of Gay, Adm. 2 John. C. 376.
Under statutes creating a lien upon the real estate of a debtor from the time of judgment rendered, leases for years have been decided not to be embraced. 8 Co. 171; Fleetwood's Case, 1 John. C. 223; Wedenbergh v. Morris, 3 Atk. 739; Bunder v. Kennedy. In wills, too, as in the present case, they have always passed under the expression "goods and chattels," and in some instances under that of "goods" alone. Shep. Y. 97 Cro. El. 386; Boardman v. Willis, 1 D. & E. 597; Bac. Leg. B. Nor is it necessary that leases should be acknowledged and attested; as deeds must be that convey "lands and tenements." - Stat. 191.
But we are well aware of a common impression, that long terms are "to all imaginable purposes a fee simple estate:" (13 Mass. R. 403), that a power "to sell land," has been held to be duly executed by leasing it for 999 years: (Cilley v. Cay ford Hills, Ap. 1806); that our statute of Feb. 10, 1791, (Stat. 191) requires all leases for more than seven years to be recorded, and that according to Denn v. Barnard (Cow. 597), an adverse possession by the lessee, under a long term, might in time enable him to claim a fee.
On principle, however, it is impossible to define at what number of years a lease shall become real estate. Its character cannot be changed by the length of the term. Nor does our statute, or the decisions last cited, appear upon examination to conflict with the idea that a lease for any number of years is not, as to the lessee's heirs, anything more than "personal estate."
Let judgment be entered on the verdict.
3 Johnson's Cases (N. Y.), 128. - 1802.
Writ of right for the recovery of lands in Dutchess county. The judge directed the assize that if they believed the boundaries of the "Great Nine Partners" patent included the premises in question, they should find for the tenant, Peck, and they found a verdict accordingly.
Per Curiam. - Upon the issue in this action the mere right was in question between the parties. This principle we must not lose sight of. It is clearly and firmly established, as the leading point of inquiry in the writ of right. The evidence requisite to establish this right is under the same rules and regulations as in other cases.
The possession of the tenant for thirty-eight years was, in the first instance, evidence of this right. This presumption of right was, however, repelled by the prior possession of the ancestor of the demandant, and which was attended with circumstances that rendered it very high evidence of right. It existed thirteen years prior to the tenant's possession. It continued till a descent was cast in favor of the demandant; it was destroyed by a possession commencing on the part of the tenant, by abatement at least, if not by disseizin.
To encounter the conclusion resulting from the demandant's proof, the tenant produced the patent of the Great Nine Partners, dated upwards of a century ago, not to deduce a title from it to himself, but to show a title out of the demandant.
This was, however, a departure from the true question between the parties, to wit, which of them had the better right. If it lay with the tenant to show it, still the direction of the judge was wrong. The assize might well have presumed a title in the demandant, derived from the patent, since his ancestor was the occupant, and apparent owner, fifty one years ago, and thirteen years prior to the commencement of the tenant's tortious possession. This, at least, ought to have been left to the assize for them to presume.
We are of the opinion, therefore, that the direction was wrong, and that the finding of the assize was against evidence, and that a new trial ought to be awarded.
Sutherland, J., in
12 Wendell (N. Y.), 602, 659. - 1834.
A writ of right is the highest writ in the law, and lies not for the recovery of any estate less than a fee simple. 3 Bl. Com. 193; Booth, Real Act. 84. It regards the legal estate only, and has nothing to do with mere equitable interests. Even in the possessory action of ejectment the legal title always prevails; much more in this action (which is brought after the ordinary possessory remedies are lost by lapse of time or otherwise), in which the right of possession can be established only by showing a full and absolute right of property.
Our inquiry, then, is for the legal title. If the demandant never acquired that, however strong and persuasive her equities may be, or may have been, she cannot succeed in this action or the former.1
Kirkpatrick, C. J., in Den ex dem.
7 New Jersey Law, 7. - 1822.
This is an ejectment for lands in Salem. At the trial of the cause, it was moved for a nonsuit by the defendant's counsel, because the lessors of the plaintiff had not shown a title by deed or other conveyance, nor a possession in themselves and those under whom they claimed for the term of twenty years, and the plaintiff was called accordingly.
The ground of the nonsuit, as thus presented by the counsel and taken by the court, is not quite so precisely stated as could have been wished. From the manner in which it is expressed, it is left doubtful whether it was intended to say, that the lessors of the plaintiff had not shown a possession of twenty complete years, and, therefore, not a sufficient one to maintain an action of ejectment, or that they had not shown a possession within twenty years before action brought, and, therefore, were barred by the statute.