Jackson, ex dem. F. and E. Goose and Brown, against Demarest

*Jackson, ex dem. F. and E. Goose and Brown, against Demarest. After a lessee has quitted the premises demised, -without proof of ever having paid rent, and after a 14 years’ possession, under conveyances from a lessor who had a right to enter in default of payment, a demand and reentry will be presumed. Ejectment for lands in Montgomery, in which a verdict was taken for the plaintiff, subject tp the opinion of the court on the following case: In, April 1773, Jelles Eonda demised to Frederick Goose, and Elizabeth, his wife, and their heirs forever, the premises in question, rent free for the first eight years, reserving from thenceforth forever thereafter, an annual rent of six pounds, with a power of re-entry in case the same should be unpaid for twenty-one days after due. Under this lease Goose and his wife entered, and continued in possession till 1778, when they went into Canada, leaving the premises vacant. In March, 1785, Fonda, by lease and release, conveyed a large tract of land, including that in dispute, to Daniel Campbell, who, in 1789, demised it to Robert Kason, under whom the defendant claimed. At the trial there was no proof that Goose had ever paid any rent, or that any person had ever been in possession under him after he went to Canada; nor was there any testimony that Fonda, or Campbell, had ever demanded the rent, or made any entry for non-payment of it. Cady, for the plaintiff. We have to contend that there was no abandonment of the possession, and that the nonpayment of rent could not of itself work a forfeiture of the lease. On the first point the case is conclusive. It does not appear that the lessor of the plaintiff ever quitted the possession so as to leave it vacant. But if he did, an entry by the lessor ought to be shown before he could pass any title to a third person. 1 Dyer, 7, a. The breach of the condition gave only a right to re-enter. ChicJcleys Case, ibid. 79, a. But even this could not be exercised without a previous demand of the rent, notwithstanding the clause reserving the rent does not specify that any demand is to be made. Browning v. Beston, Plow. 130. Mallory’s Case, 5 Bep. 111. Molineux v. Molineux, Cro. Jac. 145. Newdigate’s Case, 1 Dyer, 68, b. None is shown to have been made, and therefore Fonda had no authority to convey. Van Vechten and Radcliff, contra. After a lapse of so many *years, a demand must be presumed, as the possession has been in conformity to the title of the defendants. Read v. Brookman, 3D. & E. 159, and the cases cited there. Vandyclc v. Vanbeuren & Vos-burg, 1 Caines’ Bep. 84. Denn v. Barnard, Cowp. 595. In Jaclcson, ex dem. Smith, v. Wilson, in this court, to support the title of a landlord who had acquired the possession, after a judgment against his tenant, an affidavit of an insufficiency of distress and a writ of possession were presumed, and that he had entered according to his right under the judgment. So in Bergen v. Bennett, 1 Caines’ Cases in Error, after 16 years’ possession, it was presumed that the proceedings under the act concerning mortgages were regular. Cady and Umott, in reply. It is conceded tbis case, does not rest on fact, but on presumptions; and to warrant them, there must be a string of presumptions. Had there been a demand of rent, there might have been a presumption of an entry: for presumptions must arise from facts. Here we are to presume facts to make presumptions: 1. That rent was demanded; 2. That there was an entry. If the demand was established, the rest might be presumed; not otherwise. There was a further point made, as to adverse holding; but as it was not noticed by the court, it is not necessary to specify it, or detail the argu ments used. [MAJORITY — Kent, Ch. J.] Kent, Ch. J. The lessor and his family abandoned the premises in 1778. In 1785', the landlord had a right to re-enter for non-payment of rent, and he then sold the land. In 1789; Kason, under his title takes possession. Here, then, is certainly 14 years’ possession, and after that we will presume a regular re-entry at common law. Ee-entry is a matter in pais, and not of record. In the case cited against Wilson, which was determined in January term, 1803, an affidavit of arrears was presumed. In the authority from the court of errors, the notice from the mortgagee was presumed to have been regular. Judgment, therefore, must be for the defendant. Judgment for the defendant.