1 Sec- also cases on pp. 391-400, supra. - ED.
To this declaration there was a general demurrer, and joinder in demurrer.
Yates, J., delivered the opinion of the Court. - This is an action of waste, brought by the plaintiff against the assignee of the tenant by the curtesy. The declaration states that the plaintiff's right of inheritance to the locus in quo is derived from John Graham, as the person last seized. It also states the previous seisin of Elizabeth Graham, his mother, who died, leaving her husband tenant by the curtesy, from whom the defendant holds the premises by assignment; that John Graham derived his inheritance from the mother; and that both died without lawful issue. The waste is specially stated, and it then concludes that the plaintiff is injured, and has sustained damages to the value of two thousand dollars, and, therefore, he brings suit, etc.
To this declaration there is a general demurrer and joinder; and in support of the demurrer it is insisted that John Graham was not so seized as to form a new stock of descent, and that the plaintiff is not heir-at-law; and if he be such heir, that waste does not lie by him against the assignee of the tenant by the curtesy.
From the facts set forth in the declaration, it does not appear that this is a case not provided for in our statute to regulate descents; and the common law governs only in cases not provided for by that act. It is stated that the inheritance is claimed through John Graham, the son, who died in the lifetime of his father, the tenant by the curtesy. There can be no doubt that this tenancy suspended the descent, so that the inheritance could not be transmitted during the continuance of that estate, as no stock of descent, during its existence, could be formed by John Graham. And as it does not appear, by the declaration, when the mother died, nor whether she left any other brother or sister besides the plaintiff in this cause, a sufficient title to the inheritance is not shown to sustain the action.
But admitting that the plaintiff is entitled to the inheritance, it is clear that he cannot seek redress from the present defendant. 1 Inst. 54; 2 Inst. 301a.1 At common law, the assignee of the tenant by the curtesy cannot be sued in waste. The action ought to have been brought against the tenant himself by the heir; and the books state that thereby he shall recover the lands against the assignee, for the privity which is between the heir and tenant by the curtesy. Walker s
1But see Code Civ. Proc. § 1651 for present New York rule. - Ed.
Case, 3 Co. 23. So, if tenant in dower, or tenant by the curtesy, grant over their estate, yet the privity of action remains between the heir and them, and he shall have an action of waste against them for waste committed after the assignment; but if the heir grant over the reversion, then the privity of action is destroyed, and the grantee cannot have any action of waste but only against the assignee; for between them is privity in estate; and between them and the tenant in dower, or the tenant by the curtesy, is no privity at all; so that, at law, if the assignee is suable in waste, there must be a privity of estate; unless, then, the action against the assignee is warranted by the statute, it is improperly brought in this instance.
The section in the act § 36, ch. 56, 1 R. S. 750, does not authorize this action, for, according to the decision in Livingston v. Haywood, it gives the reversioner or remainderman an action of waste or trespass for any injury done to the inheritance, notwithstanding an intervening estate for life or for years; it gives the action of waste where waste is the appropriate remedy, and trespass where trespass in the appropriate remedy, but does not alter the law as to the requisite privity of estate between the heir and the tenant by the curtesy, so that the principle continues the same as to the assignee, who, without such privity, is not liable in waste.
The sixth and seventh sections of the act for preventing waste, contain no authority for this action; the sixth gives the right of action to the heir at any time during or after his minority, and the seventh section declares tenants for life, or for another's life, or for term of years, or any other term, liable to waste after granting their estates, if they take the profits. Neither of those sections can be so construed as to alter the law on the subject, so as to give the heir an action of waste against the assignee of the tenant by the curtesy. It would seem that such an action can be brought in no case, except where the heir has granted over the reversion, because, as before stated, by the grant the privity of the action is destroyed, and the grantee cannot have any action of waste but only against the assignee, for as between them there is privity in estate, but no such privity, after the grant, exists between the assignee and the tenant by the curtesy. It is, therefore, evident, that the action of waste in this instance cannot be maintained by the heir against the assignee. The law is decidedly against it, and the principles in relation to tenants by the curtesy ought to be strictly applied, in an action like the present, because the judgment operates as a penalty, the recovery being not only for the place wasted, but treble dam-The defendant is, consequently, entitled to judgment.
Judgment for the defendant.
7 Johnson (N. Y.), 1. - 1810.
Per Curiam. - There is no doubt but that an action of trespass will lie against a tenant at will for voluntary waste, as in the cutting of timber; for the injury amounts to a determination of the will and of his possession. Co. Litt. 57a; 5 Co. 13a.; Cro. Eliz. 777, 784. The defendants in this case were nothing more than tenants at will, for the purpose of this action, even if they were entitled to be considered as holding from year to year, for the purpose of a notice to quit; and they would have no right to such notice, after they had determined the will. The nonsuit must be set aside, and a new trial awarded, with costs to abide the event of the suit.