#### Bates *against*Shraeder.

where a. ¡s' seised of a refersion ekpectant, on the dethe^ifó^tate the Curtesy, ás B°“the wife of thLurtes”/,an$ the fee°of The notf’become^! etock^of1’ descent; but a ■ ■ person claiming the- reversion must deduce his title immediately from b., the tl,e

Therefore, the eidesS nót inherit, búl siseteí1t!l1fS b.1! sentativcs, ‘áre accoráingto thé provisions of the statute of descents.

ad action of *waste*does not alaiS thehasr signee of theoníyeagmnst tíih tenant himself.?

IN ERROR, on *certiorari*to the-court. -of common pleas, of" the COUnty of *Dutchess.*

*.*This Wag an action of waste. The declaration stated; that *BUz^reth- Graham*was seised -in *herdemesne,*as .of-fee, in eertain premises* in the town of *Fishkill,*which are described by TMefes and bounds, and contained twenty-five acres; and being so seised, she married *.Duncan Graham,*and, during, the cover* ture, they had a son born, *John-Graham,*by which marriage, and birth of a son, *Duncan Graham*became entitled to the pre* ' ‘ ' mises as tenant by the curtesy, the reversion being in the said *Elizabeth,*and her heirs .;, that *Elizabeth Graham*died, whereby ‘ ‘ her son, *John Graham,*beeamé entitled tó ihe reversion of the as heirtó bis mother; that *John Graham*died ^hhout issue, arid without leaving. any brother or ■.sister, or any fegal representative of such brother or sister, and that the plaindff ihecame entitled to the reversion a-s, heir at law of *John Graham,*he, the plaintiff, being the oldest son of *John*Bates* deceased, who. was the oldest brother *oi Elizabeth Graham,*and the oldest únele ef *John Graham*that *Duncan Graham,,*the. continuance oi -his estate as- tenant, by the curtesy, in the * year 1.80&, assigned his estate in the premises to the defendant,. ' Who being in the possession therebf, did wrongfully and unjus.f]y make waste, sale, and destruction, in the whole of the said pi'entises,' by destroying and changing the 'nature, of the land, . ..^y- felling timber, &c,, and; felling diver? trees, &c.,'to the. disinherison-of the plaintiff,. and,.agáinst the form of the statute-in such-case provided, ■’ . . ■ •

To this declaration there was a general demurrer, and joinder in demurrer. ’ ' . ,

*J. Talknadge,*in support -of the demurrer,

contended, that . *Jffhn. ,G.mham*did ’not constitute a. stock of descent; for, as the. tenant by the curtesy was still living, the descent was suspended; and for this, the case of *Jackson*v. *Hendricks******was an *261authority in point. In the action of waste, the plaintiff must Set forth his title specifically and definitely.*

Again, the heir at law cannot bring this action against the assignee of the tenant by the curtesy, for the privity, remains between the tenant by the curtesy and the heir.† Our statute,‡ for preventing waste, is a transcript from the statute of *Gloucester,*6 *Edw.*I. c. 5.; and, though the statute gives a remedy for the grantee of the reversion, against the tenant or his assignee, yet no remedy is provided where the heir keeps the reversion against the assignee of the tenant.§

Should it be said', that the 33d section of the act for the amendment of the law, which gives an action of waste, or trespass, to the remainder-man, or reversioner, for any injury done the inheritance, notwithstanding any intervening estate for life, or for years,ǁ supplies a remedy for this case, it may be answered, that, by the construction given to thát section of the act, by the court, in the case of *Livingston*v. *Haywood,*******the difficulty of the intervening estate only is removed, as between the remainder-man or reversioner and the tenant'.,- and the action of *waste*lies only against the tenant, though trespass may be brought against a stranger.

*P. Haggles,*contra,

contended, that the title was sufficiently set forth. The declaration avers, that the plaintiff was the eldest son of *John Bates,*who was the eldest brother of *E. Graham,*and the oldest uncle of *John Graham,*though it is silent as to there being other brothers or heirs. If the defendant meant to avail himself of the existence of such a fact, he should have traversed the facts in the declaration. It was not a matter to be pleaded in abatement.††

The statute of descents‡‡ provides, that nothing therein contained shall he construed to bar or injure the right or estate of a husband or tenant by the curtesy, or a widow’s right of dower. Admitting the doctrine as to descents, still there is that reversionary interest in the plaintiff which entitles him to this action.

It is true that, the action máy be maintained by the heir against the tenant by .the curtesy, notwithstanding he has assigned his interest; but the heir has his election to bring his action against the assignee. *Coke**§§***says, “ if the heir, either i » before the assignment had granted, or after the assignment doth grant, the reversion, &c., the stranger shall have an action of *262waste against the assignee, because, in both-'casés,, th'e.'privity is' destroyed: in all other cases the action of waste shall be brought against him that did the'waste, (for it is in the nature of a trespass;)- unless it be in the case of a ward,.5’ The lord may elect the assignee.of the tenant-to be his, tenant. , ,

This case comes within'the-act w-hich gives.the remainderinan or reversioner- an action of waste and trespass for any injury done tb the inheritance, notwithstanding án intervening estate for life or for years, .- - ;

Suppose a recovery in an action against *Duncan Graham,*for the place wasted,, and. treble damages, what remedy .would he havé ? ■ The plaintiff elects to bring his action*.directly against' the person who has done the injury,.and. who ought to pay the.* penalty.' •, ' ' '

*

**3 Johns. Cass 214. 2 *Bl.*Com. 209 227. *n*13. 312, 2 *Woodes.*252, 253, 254. 2 *Wils. Rep. 47. 2 Co. Litt. 241. b.*

*

 2 *Saund.*234. 6 *Com. Dig. Waste,*(C. 4.) 518.

†

 7 *Bac. Ab.*267, 268. *Waste,*(H.) 2 Inst, 300, 301, 302. *Fitzherb.*129 (F.) 128. (A.) *Co. Litt.*54. *a*316. *a.*

‡

 1 *N. R. L.*62. sess. 10 c. 6. s. 3.

§

 1 *Cruise's Dig.*124. Curtesy, c. 2. s, 32. 2 *Bac. Ab. Curtesy, (E.)*

ǁ

 1 N. R. L. 527. sess. 36. c. *56.*s. *33.*

**

11 *Johns. Rep.*429.

††

 Com. Dig. *Abatement, (E.8) (E.10.)*

‡‡

 Sess. 9. c. 12. s. 4. 1 N. R. L. 52.

§§

*Co. Litt. 54*a. 8 *Com. Dig. Waste,*(C. 3.)

Yates, J„

delivered- the opinión of the court. This is an action of waste, brought by, the plaintiff against the assignee of the tenant by the curtesy. The declaration states,, that the plaintiff’s right of inheritance'to the' *locus in quo*is derived from *John Graham,*as the person last seised* It also states--the previous seisin of *Elizabeth Graham,\*his mother, who'died,, leaving her husband'tenant by the curtesy, from whom the defendant holds the premises by assignment; ..that *John Graham*derived .his inheritance ffonr the' mother ; arid that both died. Without lawful issue. The waste, is specially stated,. and; it then, 'concludes that the plaintiff is injured, and has' sustained damagés to the value of two thousand dollars, arid, therefore, he brings suit, &C. -

' To this- declaration there is a. general demurrer and joinder';- and in support of the demurrer it is,insisted, that *JoJm'Graham*was not so seised as to form a new stock of descent,. and -that the plaintiff is not heir at law; and if he be such heir, that waste does not lié by him against the assignee of the tenant by the 'curtesy, '

From the facts set forth in- the declaration, it does not appear that this is a case not provided.for in our statute to regulate descents ; and the common law governs only in cases riot provided for by that act. If is stated that the inheritance is claimed1 through *John Graham,*the son, who died in the lifetime of his father, the tenant by the curtesy. There can be no doubt that this tenancy suspended the descent, so that the inheritance could *263not be transmitted during the continuance of that estate, as no stock of descent, during its existence, could be formed by *John*Graham. And as it does not .appear, by the declaration, when the mother died, nor whether she left any other brother or sister besides the plaintiff in this cause, a sufficient title to the in? heritance is not shown to sustain the action.

But admitting that the plaintiff is entitled to the inheritance, it is clear he cannot seek redress from the present defendant, (1 *Inst.*54. 2 *Inst.*301. *a.)*At common law, the assignee of the tenant by the curtesy cannot be sued in waste. The action ought to have been brought against the tenant himself by the heir; and the books state that thereby he shall recover the lands against the assignee, for the privity which is between the heir and tenant by the curtesy. *(Walker’s Case,*3 *Co.*23.) So, if tenant in dower, or tenant by the curtesy, grant over their estate, yet the privity of action remains between the heir and them, and he shall have an action of waste against them for waste committed after the assignment; but if the heir grant over the reversion, then the privity of action is destroyed, and the grantee cannot have any action of waste but ohly against the assignee ; for between them is privity in estate ; and between them and the tenant in dower, or the tenant by the curtesy, is no privity at all; so that, at law, if the assignee is suable in waste, there must be a privity of estate; unless, then, the action against the assignee is warranted by the statute, it is improperly brought in this instance.

The section in the act (sess. 36. ch. 56.) does not authorize this action, for, according to the decision in *Livingston*v. *Haywood,*it gives the reversioner or remainder-man an action of waste or trespass for any injury done to the inheritance, notwithstanding an intervening estate for life or for years ; it gives the action of waste where waste is the appropriate remedy, and trespass where trespass is the appropriate remedy, but does not alter the law as to the requisite privity of estate between the heir and the tenant by the curtesy, so that the principle continues the same as to his assignee, who, without such privity, is not liable in waste.

The 6th and 7 th sections of the act, for preventing waste, contain no authority for this action; the 6th gives the right of action to the heir at any time during or after his minority, and the 7th section declares, tenants for life, or for another’s life, or *264for term of years, or any other term, liable to waste after granting their estates, if they-take the profits. Neither of those sections can be so construed as to alter the law ón the subject, so as to give the heir an action of waste'against the assignee of the tenant-by. the curtesy.. It would seem that such action-ban be brought in ño, case, except where the heir, has granted over the reversion, because,-as before stated, by the grant: the privity of the action is destroyed, and the grantee cannot have any action of waste but only against the assignee, for as between them there is privity in estate, but no such privity, after the grantj’existá between the assignee And the tenant by. the curtesy.. It is, therefore, evident, that the. action of waste, in this insfahee, cannot be maintained by the heir Against the assignee. The law is decidedly against ¡it; and. the-principles in relation to tenants by the curtesy ought fo be strictly applied, in an action like the present, because the judgment operates as a penally, the recovery being -not only for the place wasted, but treble 'damages. The defendant is, consequently, entitled to judgment.

Judgment for the defendant..