Opinion
June Term, 1857.
The purchase of a particular estate in land by a reversioner, is no evidence tending to show that a claim for damages, which the purchaser had, on account of waste theretofore committed, was settled in that purchase.
It is no objection to an action on the case in the nature of waste, that the reversioner purchased the estate of the particular tenant, after the waste was committed.
TRESPASS on the CASE in the nature of waste, tried before MANLY, J., at the Spring Term, 1857, of Edgecombe Superior Court.
The land in question was devised by Willis Dupree to the plaintiff and James Dupree, in fee, and the latter assigned his estate to the plaintiff before the commission of the alleged waste. The defendant, Elizabeth, was the widow of the said Willis, and, having dissented from her husband's will, the lands in question were assigned to her for dower, in November, 1849.
It was proved that the defendant, Abram, in 1854, cultivated the premises jointly with the other defendant, and with her assent, in the Spring of that year, cut down the trees in a portion of the grove around the dwelling, and cultivated it in cotton. He also cleaned up the yard back of the dwelling-house, and took off the top dirt, so as to make holes at places.
Defendants relied on the plea of accord and satisfaction, and, to sustain it, they offered proof tending to show that, in 1853, the estate of the dowress was worth $2000, and they showed a treaty for the sale of her right, and produced a deed dated in November, 1854, showing a consideration paid by plaintiff to defendant, Elizabeth, of $1750, and a conveyance of her estate to him for that sum.
The defendants' counsel contended that, plaintiff having purchased the estate of the dowress, after the alleged waste was committed, this action could not be sustained.
His Honor ruled that there was no evidence to sustain the plea of accord and satisfaction. To which defendant excepted. He was further of opinion that his right of action was not taken away by the purchase of the dower interest, after the waste was committed. Defendant further excepted.
Verdict for plaintiff. Judgment and appeal.
B. F. Moore, for plaintiff,
Rodman, for defendant.
The defendants objected to the plaintiff's recovery, upon two grounds:
1st. Because of an accord and satisfaction.
2ndly. Because the plaintiff had purchased the life-estate of the defendant, Elizabeth Dupree, before the commencement of his action.
We are of opinion that there was no evidence to support the first objection, and that, in law, the second is not tenable.
1. The only testimony offered to prove the accord and satisfaction, was the treaty between the parties for the purchase of the defendant, Elizabeth's, life estate, and the deed by which it was conveyed to the plaintiff, upon the payment of the price by him. We are unable to perceive any such necessary, or even probable, connection between that transaction, and the adjustment of the damages which the plaintiff had a right to claim for the injury done to the land by the defendants, as to make the one a settlement and compensation for the other. In all the cases cited and relied upon by the counsel for the defendant, where one thing is presumed from another, the presumption is founded upon the principle that the one is ordinarily the consequence of the other.
Thus, as it is common in England for the purchaser of goods to give his note for the price, a note given after the purchase of goods is, in the absence of direct proof. presumed to have included the price of such goods. Motrie v. Harris, 1 Moody and Malkin, 322. So, an order for money is not usually left in the hands of the drawee, unless the money has been paid. Hence the possession of the order is admitted as evidence of the payment. Blount v. Starkey, Tay. Rep. 110. So, of all the other cases where such presumptions have been allowed; and they can never be safely admitted, unless observation and experience have shown that, in the large majority of instances, certain facts have caused, or been followed by certain results. Can it be shown from observation and experience that the purchase of a particular estate in land by a reversioner, or remainderman, usually embraces an adjustment of the claim for damages which the purchaser may have against the vendor? Is it so in the analogous case of a purchase by a remainderman of a life-estate in slaves, or other personal property? It may, perhaps, be said, and said truly, that such instances are too rare for the production of any such cases. If so, it will be rather hazardous to lay down any rule of presumption on the subject. The fact might be so, or it might not be so. It is a mere matter of conjecture, and conjecture is no proof in favor of him who is bound to make proof. Sutton v. Madre, 2 Jones' Rep. 320. We, therefore, agree with his Honor that there was no evidence given in support of the plea of accord and satisfaction.
2. The second objection is founded upon the idea that there must exist a particular estate, and a reversion at the time when the action is brought, as well as when the waste was committed. In support of this, the counsel for the defendants relies upon the authority of Co. Lit. 35 b., where it is said: "Note, after waste done, there is a special regard to be had to the continuance of the reversion in the same state that it was at the time of the waste done; for, if after the waste, he granteth it over, though he taketh back the whole estate again, yet is the waste dispunishable: so if he grant the reversion to the use of himself and his wife, and of his heirs, yet the waste is dispunishable, and so of the like; because the estate of the reversion continueth not, but is altered, and consequently the action of waste for waste done before (which consists in privity) is gone." The counsel referred also to the case of Bacon v. Smith, 41 Eng. Com. Law Rep. 571, where PATTESON, Judge, in remarking upon this passage, said "it had immediate reference to the old form of action, but the rule equally applies to an action on the case in the nature of waste." It is unnecessary for us to enquire whether if the plaintiff, in the present case, had granted away his reversion, he could have maintained his action. If he could not, it would not be for the want of privity, simply because privity is not now necessary to the action on the case in the nature of waste. Instead of being confined, as the old action of waste was, to the owner of the inheritance against his immediate tenant for life, or years, it may be brought by a person in remainder or reversion for life, or years, as well as in fee, or in tail, and against a stranger as well as against a tenant. 2 Saund. Rep. 252, note 7; Williams v. Lanier, Busb. Rep. 30; Dozier v. Gregory, 1 Jones' Rep. 100. It may be brought also in the tenuit against a tenant, after the term for life, or years, has expired. Kinlyside v. Thornton, 2 Black. Rep. 1111. Privity, then, not being essential to the maintenance of the action, we are not aware of any principle which forbids a suit by a remainderman or reversioner after the purchase by him of a particular estate, for waste done before.
The counsel contends that the right to damages is an incident to the tenure, and that when the plaintiff has, by his own act, put an end to the tenure, the incident must be extinguished with it. But we have seen that the right to damages for the waste does not depend on the tenure, and, of course, the inference that it must cease with it, cannot be legitimately drawn.
There is no error in the judgment, and it must be affirmed.
PER CURIAM. Judgment affirmed.