Martin v. Rector

• Decision Date: 19 January 1886
• Citation: 4 N.E. 183,101 N.Y. 77
• Parties: MARTIN v. RECTOR.
• Court: New York Court of Appeals Court of Appeals

101 N.Y. 77

4 N.E. 183

MARTIN

v.RECTOR.¹

Court of Appeals of New York.

Filed January 19, 1886.

Plaintiff, on the original trial of the action for ejectment, recovered judgment for possession for non-payment of rent, and was put in possession by the sheriff. On appeal by the defendant, the general term reversed the judgment, and ordered a new trial, on which a verdict was rendered for defendant, who entered judgment for costs and for restitution to the premises, and was restored upon the proper writ. By an order of the special term this was set aside, and the sheriff directed to restore plaintiff; but this order of the special term was reversed in the general term, (28 Hun, 409,) and the relief asked for by defendant granted. From this appeal is brought.

RAPALLO and EARL, JJ., dissent.

Mr. Cowen, for appellant, Robert C. Martin.

Mr. Miller, for respondent, Jacob S. Rector.

DANFORTH, J.

That the plaintiff was the grantee of the original lessor, that rent was due from the lessee, and unpaid, and that the devise contained a condition for re-entry upon the land in question for non-payment of rent, was conceded; but the land was occupied, and no recovery could be had, unless the defendant was at the beginning of the action the actual occupant of the premises. 2 Rev. St. 304, § 4. Whether he was such occupant was the question litigated at the trial. The plaintiff there claimed that the evidence was all one way, and of such force as to require the trial court to withhold it from the jury, and direct a verdict for him. The judge declined to do so, and, upon submission to the jury, their verdict was in favor of the defendant, as was also a special finding that ‘he was not the actual occupant of the premises at the time of the commencement of this action.’

We think the learned court did not err. By force of the statutes relating to the property of married women, (Laws 1849, c. 375,) the wife may take the equitable or legal title to real and personal property, and hold the same to her sold and separate use, as though she were unmarried. She might therefore cultivate the land and manage the personal property, either in person or by means of any agency which any other owner of property might employ. Knapp v. Smith, 27 N. Y. 277;Draper v. Stouvenel, 35 N. Y. 507;Rowe v. Smith, 45 N. Y. 230;Bodine v. Killeen, 53 N. Y. 93;Wood v. Wood, 83 N. Y. 575. Whether she was doing so in this case, or whether she had given to the defendant, her husband, the possession of the premises, was the real subject of contention, and to be determined as a question of fact. Alexander v. Hard, 64 N. Y. 228.

That the title was in her was unquestioned, and, without her consent, he could have no legal possession; and therefore could not have been that rightful temporary use of the soil without which one could not be, in the language of the statute, an ‘actual occupant.’ In behalf of the plaintiff, he at one time testified, on examination before trial, but after suit commenced, that he ‘was in possession at the time of the commencement of the action, and with that general testimony the plaintiff rested. But afterwards the facts constituting the possession and occupancy of the premises were disclosed, and, it appearing that the land was given to Mrs. Rector by her father, the defendant testified: ‘My wife went upon those premises in pursuance of that. I went there with my wife. The property was given to her, and of course I went there, and...