Otis v. Thompson , 1 Hill & Den. 131 ( 1843 )

By the Court,

Nelson, Ch. J.

I do not see how it is possible to answer one ground of defence taken in the court below and overruled, namely, that the defendant was a tenant in common in the crop, and, therefore, not liable to his co-tenant for the tortious taking of the two loads of wheat. (Caswell v. Districh, 15 Wend., 379; Putnam, v. Wise, 1 Hill, 234.)

Admit that Mrs. Young was in possession of the farm, as guardian in socage to her minor children, and, as such, had a right to let it upon shares in the spring 'of 1840, so far as their interest was concerned; and that, as to the adult heirs, it was fairly to be presumed she was in, exercising acts of ownership over the premises with their knowledge and consent; still, on the 20th August following, Kinne was duly appointed a general guardian of these minors, which had the effect to supersede the guardianship in socage, and vest him with all the powers that belonged to her over the estate. (1 R S. 714, §7.)

He took her place on his appointment, and became entitled to receive the accruing rents and profits of the estate in trust for the minors, the same as would have belonged to her, had her power as guardian in socage remained. (2 R S., 150,154, §§ 3 and 9.) And nothing was left for her in respect to their affairs but to close her accounts, and settle the trust.

Then on the 20th October succeeding, all their interest and estate in the premises was conveyed to the defendant by the guardian in pursuance of the order of the court of chancery, which, of course, vested him with their share of the wheat under the letting, as it did not become due till the following season, the summer of 1841.

We need scarcely refer to an authority to show that the accruing rents belong to- the grantee. (Bug. Vend., 235.)

Upon this single ground, without refering to others, the judgment below must be reversed.

Venire de nova by common pleas, costs to abide event.