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tion need not be considered, because, in Zabriskie v. Wood, 23 N. J. Eq. 541, the court of errors expressly decided that the eleventh section did apply to all estates tail, whether general or special. The force attributed by Mr. Zabriskie to the word 'assigns,' in this clause, is, in my judgment, excessive and inappropriate. In Den v. Wortendyke, 7 N. J. Law, 363, the question was whether an estate in fee or in tail passed under a clause of a will, and the same contention was made. Chief Justice KINSEY uses the following language: In the outset, I will remark that little or no importance is to be attached to the use of the word "assigns," in this case; a circumstance upon which a considerable part of the argument was founded. I am not aware of a single case wherein, a certain interest having been given in a will, this word has been held to enlarge, or in any manner to affect, this interest. Every interest recognized by the law, unless under particular circumstances, is the object of an assignment. It belongs essentially to every species of interest or property; and the introduction of the term is, therefore, in every case, superfluous and inoperative in a conveyance of property. The first section of Littleton shows that the word has no enlarging power in a conveyance, and Coke * * * shows that it is the same in a case of a will. The argument, therefore, resting on the basis, is entitled to no consideration.' In the section referred to by the learned chief justice, Littleton delares that a purchase by the words, to have and to hold to him and his assigns forever,' would only pass an estate for life. Coke, in his Commentary, says that a devise ‘to him and to his assigns forever' will pass a fee-simple by the intent of the devisor. But it is plain that this intent is drawn, not from the use of the word assigns,' but the use of the word forever;' for he adds that under a devise to one and his assigns,' without saying 'forever,' the devisee hath but an estate for life. Co. Litt. 96. In Lutkins v. Zabriskie, 21 N. J. Law, 337, on a devise to A., and to her heirs lawfully from her body begotten, and assigns, forever, it was contended that A. took a fee-simple, and, among other reasons, because of an intention to be inferred from the use of the word assigns.' Chief Justice HORNBLOWER held that the word assigns' had never been considered sufficient to control previous words of limitation. Upon these cases it seems to me the word relied on has never been applied to enlarge an estate under the circumstances such as appear in this case. The force attributed to the word is inappropriate, because, in any event, the estate taken by M. V. D. C. was vendible and assignable. Under such circumstances, there is no inference to be drawn except of an intent to pass a vendible and assignable estate.

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"It was contended on the argument that the word forever,' in this clause, tended to the same construction reached by Mr. Zabriskie. \But, although this word often operates to indicate an intent to create a fee-simple, yet it will not operate to create or impede the creation of an estate tail. Such was the view of Chief Justice EWING in Den v. Cox, 9 N. J. Law, 10, and the cases there cited, and many others sustain that view. In Vernon v. Wright, ubi supra, CROWDER, J., expresses the same view, and says the word would not enlarge the limitation of the estate tail, but only import its continued duration. The result is that, in my judgment, the plain intent of testator was to create an estate which, under the statute of 13 Edw. I., commonly called the Statute of Entails,' would have been an estate in special tail. Upon the authority of Zabriskie v. Wood, ubi supra, that estate fell within the provisions of section 11 of the descent act, and became an estate for life in M. V. D. C., the devisee, with remainder to his children in fee-simple. See also Redstrake v. Townsend, 39 N. J. Law, 372. /

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"It was suggested on the hearing that there might be a question, under section 11, as to the amount of estate to which plaintiff would be entitled. Не is one of seven children of M. V. D. C. by his wife, Sally Ann. M. V. D. C. had a child by a previous wife. If the last-named child obtains an interest under section 11, it is plain that the intention of the testator is not regarded.

But the question is not before me, because plaintiff only claims one-eighth of the land. If before me, the case of Zabriskie v. Wood, ubi supra, settles it, for in that case the statute was so construed as to cast the devised estate upon a child to whom it was the evident intent of the testator that the estate should not pass. I am therefore constrained to find for the plaintiff, and that he is entitled to judgment for the lands claimed, etc., and his costs of suit," etc. A writ of error was brought to remove the judgment and proceedings to this court.

Geo. O. Vanderbilt and W. D. Holt, for plaintiff in error. James B. Vredenburgh, for defendant in error.

PER CUKIAM. The judgment in this case should be affirmed, for the reasons given by the court below. Unanimously affirmed.

SMITH V. MILLER et al.

(Supreme Court of New Jersey. June Term, 1887.)

1. LANDLORD AND TENANT-LEASE-FORFEITURE FOR NON-PAYMENT OF RENT.

A provision in a lease that if the payment of rent was in default for sixty days after the end of five years, the premises should revert to the lessor as though the lease had never been made, is no defense in an action for rent, brought after such default; the default alone not operating to terminate the lease.

2. CONTRACT-ACTIONS FOR BREACH-PLEADING JOINder of CounTS.

In New Jersey, the common-law rule is abolished, and counts in covenant may be joined with assumpsit, for injuries arising from breaches of contract.

3. SAME-PARTIES-NON-JOINDER OF PARTIES PLAINTIFF-DemurreR-NOTICE.

Under Revision N. J. p. 853, § 37, a defendant cannot take advantage by demurrer of a non-joinder of a party plaintiff, without giving a written notice five days after filing his demurrer, of such objection, stating in such notice the name of the party omitted.

4. SAME-DEFECT OF PARTIES DEFENdant-DemuRRER.

After stating that two defendants were jointly bound in the contract sued on, the declaration proceeded to declare against one only. Held, that the non-joinder of the other could be taken advantage of on demurrer; the joinder of both in the commencement of the declaration sufficiently implying that the other defendant was still living.

On demurrer to declaration.

This was an action upon contract. The first count declared that the defendants rented of the plaintiff Barnet A. Smith a farm, for the term of 20 years, paying therefor the sum of $125 for each quarter of a year, and the further sum of $300 for the railroad privileges, which last sum was due October 1, 1884; and that the defendants entered into the demised premises, and afterwards there was a default in the payment of rent to the sum of $1,000. Then followed the common counts in assumpsit. The lease, which became a part of the declaration by reference thereto in the declaration, provided that if at the expiration of the first five years from the date of the lease default should be made for the space of sixty days in the payment of the rent, the defendant shall forfeit all the privileges and rights therein given, and, in case of such default and forfeiture, the said demised premises to revert to the said party of the first part, the same to be enjoyed by them as though the lease had never been made. The grantor in the contract of lease was Barnet A. Smith, and grantees were Garrick M. Miller and Charles Parish. After setting out the contract and the joint obligation of Miller and Parish, the declaration proceeded to declare against Miller alone. Miller demurred. Argued before BEASLEY, C. J., and DEPUE, SCUDDER, and REED, JJ. William M. Davis, for plaintiff. Martin Wyckoff, for demurrant.

REED, J. The first point of attack upon the first count in the declaration is that the sealed agreement upon which the count is framed had, at the time

of the commencement of the action, ceased to exist. This contention is based upon the clause in the lease which provides that if at any time after the expiration of the first five years of the lease there should be sixty days' default in the payment of rent, then the defendants shall forfeit all rights under the lease, and the premises should revert to the lessors, and be enjoyed by them as though the lease had not been made. It is claimed that the failure to pay the rent, as charged in the declaration, put an end to the lease absolutely, and no action could be maintained upon that instrument. This result is alleged to spring out of the fact that the clause of forfeiture does not leave the avoidance of the lease to the option of either party, but upon the failure to pay rent at certain times it becomes, by reason of that alone, absolutely void. It is said that after the happening of the event, upon the occurrence of which the vitality of the lease is extinguished, the right to recover for the occupancy of premises must be asserted in the shape of an action for use and occupation. If it was possible to accede to this view of the legal force of the clause of forfeiture, I am yet unable to perceive how it would aid the demurrant; for a glance at the lease discloses the fact that the covenant to pay rent was broken before the occurrence of the default, upon which the avoidance of the lease is based. The covenant was to pay the rent in quarterly payments, at certain specified dates, but the event upon which the lease was to become void was a failure to pay any such instalment within 60 days thereafter. So a right to an action for some portion of the rent must have accrued before the occurrence of the 60 days' default. But the plaintiff's demand is supportable upon a broader ground than this, for it is impossible to yield assent to the demurrant's view of the import of the clause of forfeiture. The law controlling the construction of provisions of this description may be regarded as entirely settled. The rule is that the lessor has the right to take advantage of the forfeiture, but it is entirely optional with him whether he avails himself of his privilege, although by the terms of the proviso the term is to cease or become void for the non-performance of the covenants; and, if the lessor does not avail himself of it, the term will continue, for the lessee cannot elect that it shall cease or be void. Tayl. Landl. & Ten. § 492. It was once held that there was a distinction between estates of freehold and terms for years, in respect to the effect of a breach of a condition for the non-performance of which the estate or term should become void. It was thought that upon the breach of a condition of absolute avoidance in the first instance, inasmuch as at common-law livery of seizin was necessary to begin the estate, nothing less than an entry could terminate it; while in the case of a lease, as they were originally only contracts, they became void upon breach of the condition without entry or any other act to enforce the forfeiture. Dumpor's Case, 1 Smith, Lead Cas. *47, notes; Tayl. Landl. & Ten. § 492. This view may now be regarded as entirely abandoned. In Hartshorne v. Watson, 4 Bing. N. C. 178, the landlord sued for rent. The lease contained a proviso that if there was a default in the payment for a certain time the lessor was to have the premises again as if the lease had never been made. It was held that the lease was not void, but voidable by the lessor upon the happening of the default, and that the lease still existed to support his action. In Arnsby v. Woodward, 6 Barn. & C. 519, the lease contained a proviso that if the rent should be in arrear for 21 days after demand made, or if any of the covenants should be broken, then the term thereby granted, or as much thereof as should then be unexpired, to cease, determine, and be wholly void, and it should be lawful for the landlord upon the premises to re-enter. This was held to render the lease voidable only upon breach of a condition. The clause of re-entry, which was coupled with the avoidance of the lease, was the subject of remark, as if it might aid in reaching the construction given to the provisos. But the proviso, stripped of any right to re-enter, has received a similar interpretation. In Rede v. Farr, 6 Maule & S. 121, the proviso was that if the rent

should be unpaid for 40 days, although not demanded, the lease should be void. Lord ELLENBOROUGH, with all the other judges of the court then sitting, held that it was a voidable term only. Reid v. Parsons, 2 Chit. 247. And in the case of Doe v. Bancks, 4 Barn. & Ald. 401, a proviso that, upon failure of the tenant to work a coal mine for two years, his lease should be void to all intents and purposes, received a similar construction. The rule seems firmly established in the English courts, and it may be generally considered well settled that however absolute the words of forfeiture may be, they will be construed as having no other object than that of enabling the party in whose favor they are made to treat the lease as void, or to enforce it, as he desires. 1 Smith, Lead. Cas. *98, and cases. The claim, therefore, that at the time of bringing this action the lease had ceased to exist by reason of the default in payment of rent, cannot be admitted.

The counsel for the demurrant also insists that there is a misjoinder of counts, the first count being framed in covenant, and the last count in assumpsit. This, previous to the adoption of the new rules, would have been fatal upon general demurrer to the entire declaration; but now the joinder of covenant with debt, assumpsit, or trespass on the case, for injuries arising from breaches of contract, is permissible.

The demurrant insists that the narr is defective by reason of the non-joinder of parties, both as plaintiffs and defendants. It appears from the sealed agreement that the covenant to pay rent, for the breach of which this action is brought, was made by Miller and Parish to Smith and wife. The first count is apparently against Miller alone, and the action is brought by Smith, without joining his wife as a plaintiff. The non-joinder of a joint covenantee was, at common law, if the defect appeared upon the face of the pleading, fatal upon demurrer. Dicey, Parties, 525; 1 Chit. Pl. 13. The thirty-seventh section of the practice act (Revision, p. 853) provides that the non-joinder of a plaintiff shall not be objected to by the defendant, unless he gives written notice of such objection to the plaintiff within five days after filing his plea or demurrer, and state in such notice the name of such person alleged to have been omitted. The interpretation of this provision in the case of Brown v. Fitch, 33 N. J. Law, 418, was that the defendant was precluded from making the objection of the non-joinder of a plaintiff upon the trial if he had neglected to give the notice. It was held that the defendant could show upon the trial that the contract sued upon was joint, and make any defense under that contract which he might have made if the omitted person had been joined as a plaintiff. But the rule laid down in that case was that the fact alone appearing upon the trial that the contract was joint, would not, without the notice, defeat a recovery by the plaintiff or plaintiffs suing, although others should have been joined as parties. So, if a plea had been interposed in this case, without a notice of non-joinder, and upon the trial the same condition of fact had been proved as now appears upon the face of the first count in the declaration, it would not have presented a defense. The rule thus established in the above case applies to demurrers as well as pleas. Both a plea and a demurrer are mentioned in the statute as pleadings under which the non-joinder of a plaintiff cannot be objected to without the statutory notice. So, upon the trial of the issue of law, raised by a demurrer without notice, if, upon the face of the declaration, it appears that the contract sued upon by one person was made with him and others, and nothing appears to disclose any defense to such joint contract, the defendant is precluded from objecting to the nonjoinder, as he might have done at common law. The objection of the demurrant, aimed at the non-joinder of the wife as a co-plaintiff, is not now sustainable.

The second objection, which goes to the non-joinder of a person who, upon the face of the declaration, was a joint covenantor with the defendant, stands upon a different footing. Wherever the non-joinder of a defendant does not

appear upon the pleading, the defendant can only raise the objection by a plea in abatement. 1 Chit. Pl. 46. If, however, the non-joinder is apparent from the face of the pleading, the defendant may demur. It must appear that the party omitted is still living, as well as that he jointly contracted. Id. Although Sergeant Williams held the view that the omitted defendant was presumed to be living, the better opinion seems to be in favor of the view that it must appear upon the face of the pleading that the omitted party is living. Notes to Rice v. Shute, 1 Smith, Lead. Cas. 1405. And the fair inference to be drawn from the commencement of this declaration is that the omitted defendant was, at the time of the commencement of the action, living. It speaks of Miller as impleaded with Parish. The fact so stated, namely, that they were sued together, implies that both were living at the time. The pleader, after so stating, proceeds to declare against one only. Upon this ground, there must be judgment for the demurrant.

STATE (MURPHY, Prosecutor) v. BORDEN.

(Supreme Court of New Jersey. June Term, 1887.) EXECUTION-ISSUANCE-VAlidity-Order TO SET ASIDE.

The owner of property upon which a levy has been made under an execution issued upon a judgment against another person, has his remedy at law, and cannot interfere with the execution by an order to show cause why the execution should not be set aside.

On certiorari to the Ocean county circuit court, bringing up a rule discharging an order to show cause why an execution issued out of said court upon a mechanic's lien claim, commanding the sale of property previously sold under an execution issued upon a concurrent lien claim, should not be set aside, and for a judgment setting aside the rule discharging and making the order to show cause absolute.

Argued at November term, 1886, before Justices DIXON and REED. John H. Baches, for prosecutor. Samuel H. Patterson, for defendant.

REED, J. As appears by the return to this writ, William H. Hoover and others were the owners of the Land's End Hotel, in Point Pleasant, N. J. James Corcoran and Byron Richards, partners as the Point Pleasant Lumber Company, under whom the prosecutor claims, and Charles E. Borden, the defendant, furnished materials used in the erection and construction of the said Land's End Hotel, entitling them, concurrently, to liens by virtue of the mechanic's lien law thereon. On April 19, 1884, James Corcoran and Byron Richards, partners, etc., filed their lien claim in the Ocean county clerk's office against the said Land's End Hotel for $216.23. Upon the said lien claim suit was instituted in the Ocean county circuit court, and within due time judgment thereon entered. On September 5, 1884, special execution was issued on the said judgment, according to the provisions of the mechanic's lien law, and the property so subject to the lien was, on November 25th of the same year, sold by the sheriff of Ocean county to the prosecutor. The defendant, Borden, filed his lien claim on March 11, 1884, and commenced a suit thereon, and within due time entered judgment thereon. Execution was issued and levied upon the same property.

Assuming that the issuance of the second execution was illegal, in view of the provisions of section 24 of the mechanic's lien act, (Revision, p. 674,) the question arises whether the prosecutor occupies a position from which he can attack it in the manner which he has adopted in the present instance. He is not a party to the action in which the writ was issued. It is true that the writ is a menace to the property of which he claims the ownership by virtue of his purchase, under the former execution. He occupies the position of an owner of property upon which a levy has been made under and execution is-

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