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Supreme Court of the United States,

JANUARY TERM, 1839.

1°) CLEMENT WOODWARD, Plaintiff in Mr. Brent. In a writ of error in toe King's Error,

Bench in England, amendments of the record V.

can be made after the writ issued. He cited JAMES BROWN, and Sarah Jane, His Wife, 5 Burrow, 2730; 2 Strange, 908. Defendants in Error.

The court allowed the amendment to be

made in this court. The case, as stated in the Mistake of clerk of Circuit Court-practice opinion of the court, was as follows: landlord and tenant-pleading.

“An action of ejectment was commenced Where, by a misprision of the clerk of the Cir. by the defendants in error against the plain. writ of error had not been entered according to of lot numbered 2, in square numbered 348, in cult Court, the judgment in a case brought up by a tiffs, to recover possession of the eastern halt amendment to be made by the entry of the Judg. the city of Washington. Several distinct de. ment, without awarding a certiorari to the Circult mises were laid in the declaration, of different Court. This was done in a case which had been dates and for different periods of them. brought up by a writ of error to the previous term of the court

“One of the demises was in the name of Jane It is a well established principle of law, that a Stinger, while she was single, but now Sarah tenant cannot dispute the title of his landlord; Jane Brown, wife of the said James Brown; and where the marshal of the District of Columbla, having a writ of habere facias possessionem for and another in the names of James Brown and the west half of a lot in the city of Washington, Sarah Jane Brown, his wife. took possession of the east ball of the lot, and the tenant of the persons who claimed to be the owners

“The general issue was pleaded, and the of the lot attorned to the plaintits in the writ, jury found a general verdict of guilty. such attornment was without authority, and was “On the trial the plaintiffs proved, that up vold.

A tenant who disclaims his landlord's title is not to the 22d Nov. 1834, the defendant was the sotitled to notice to quit and deliver up possession. tenant of Sarah Jane Stinger, who intermarried

In an action of ejectment, the day of the ouster with the plaintiff Brown in the fall of the year Deed not be alleged; and it is sufficient if it is laid 1835. That after November, 1834, he refused after the demise.

The specific date under a videlicit is not peces. to pay rent, and claimed to hold possession of jected as surplusage; if It sufficiently appears on United States. That at the time the premises

emises as tenant of the Bank of the the face of the declaration that the ouster was uter the entry under the several demises.

were rented to the defendant the said Sarah The rule is well

established, that when the right Jane was seized and possessed of the same in of entry is by puster of the title of the sea

, the fee-simple. And that about the time of his in the names of the husband and wife.

refusal to pay rent, notice was given to the de

fendant to quit; and also afterwards, in JanuN error to the Circuit Court of the United ary, 1835.

"Upon this evidence the plaintiffs rested the District of Columbia.

their case, and the defendant's counsel moved Mr. Brent, for the defendants in error, the court to instruct the jury that they were moved for a writ of certiorari to the clerk of not entitled to recover on the evidence; which the Circuit Court of the County of Washing instruction the court refused to give, and the ton, on the allegation of a diminution of the defendant excepted to this opinion of the court. record of the cause in that court. The clerk had, by a misprision, made an error in not en marshal, having a writ of habere facias posses.

"And the defendant proved that the deputy. tering the judgment according to the declaration.

sionem against the defendant for the west halt Mr. Coxe, for the plaintiff in error, objected of said lot, but supposing the writ to be for the to the allowance of the motion. The case

east half, of which the defendant was in pog. came up to the last term of this court, and it is session, he was required by the deputy-mar. now too late to issue the certiorari asked for. shal to surrender the possession of the east half 2"] The error cannot be 'amended without an of the lot to the agent of the Bank of the application to the Circuit Court for authority United States; and he did surrender the posto make the amendment. The clerk cannot, session to him, and the defendant agreed to therefore, send up an amended record. hold possession under the bank. But the court

overruled this evidence; to which opinion of shows the possession of the plaintiffs below, the court the defendant also excepted.". and that they held in fee.

The writ of error was prosecuted by the de 2. Notice to quit is not necessary when the fendant in the Circuit Court.

tenant disclaims. Catlin v. Washburn, 3 Ver. The case was argued by Mr. Coxe for the mont Rep. 25; Jackson v. Wheeler, 6 Johns. plaintiff in error, and by Messrs. Brent and 272; Jackson v. M'Leod, 12 Johns. 182; Cowper, Brent for the defendants.

621; Buller, N. P. 96; 1 Wheaton's Selwyn, 585; The counsel for the plaintiff in error pre: 5 American Common Law *Cases, 43, 44; 3 / 4 sented two questions for the consideration of Peters, 46. But if, in a case like this, notice the court on the first bill of exceptions.

to quit is necessary, it was given. 3*] *lst. Whether in case of a tenancy from 3. The defendant, now the plaintiff in error, month to month, where the tenant held over being tenant, could not dispute the title of his after the expiration of the tenancy, and con- landlord. Jackson v. M'Leod, 18 Johns. 182; 3 tinued so to hold without paying rent for a Johns. 223, 504; Blight's Lessee v. Rochester, period of fourteen months, the notice to quit at 5 Cond. Rep. 339; Willison v. Watkins, 3 Peters, the expiration of the ensuing month be suf. 47; 5 American Common Law Rep. 41, 42; i ficient.

Wheaton's Selwyn, 566, 567. 2d. Whether such notice as is set forth in the 4. The plaintiff in error cannot, by a con. bill of exceptions, by an agent whose appoint. structive ouster and attornment, set up an adment is merely oral, and the notice verbal, is verse title; and if he could, the attornment, sufficient.

through a mistake, is void. Love v. Dennis, i On the second bill of exceptions, the plain- Harper's S. C. Rep. 70; 1 Marshall, 558; 6 tiff's counsel objected to the ruling of the Cir. Taunton Rep. 206; 8 Serg. & Lowber, 237, 239; cuit Court, by which the objection of the de- 9 Serg. & Lowber, 10; 13 Serg. & Lowber, 58, fendants in that court to evidence offered by 59; 3 Peters, 43; Wilkins_v. Mayor & Co. 6 the plaintiff was refused.

Harris & Johnson, 533; 1 Term. Rep. 760; 3 T. The defendant, to sustain the issue on his R. 14; 9 T. R. 62; 2 Starkie on Evidence, 532. part, produced a competent witness, who testi 5. The Bank of the United States cannot be fied that, on the 22d day of November, 1834, received in this case to defend the title of the he, as the deputy-marshal of this district, went tenant to the plaintiff, in the Circuit Court. to the premises mentioned in the said declara- 1 Chitty's Plead. 134; 3 Com. Dig. 579, 582; tion, then in the occupancy of the said defend - 4 Maule & Selwyn, 347. ant, with a writ of habere facias possessionem 6. The demise by Brown and wife is well against the said defendant, in company with W. laid. 2 Chitty's Plead. 878, note T. W. Corcoran, the agent of the Bank of the United States, named as the lessor of the plain Mr. Justice M'Lean delivered the opinion of tiff in said writ, and which was supposed by the court, after stating the case: the said parties to comprehend, but did not in The counsel for the plaintiffs contend that fact comprehend, the premises mentioned in the ruling of the court was erroneous, and that the declaration; that it was then and there rep. the declaration is essentially defective. resented to the defendant by the said agent and It appears from the bill of exceptions that the marshal, that the latter had such a writ the plaintiffs not only proved title, but also for said premises, and the said defendant, sup- that the defendant entered into the possession posing it to be such a writ as represented, vol- of the premises under their title, as tenant. untarily and peaceably surrendered the pos. These facts being proved, the court very propsession of said premises to the said agent of erly refused to instruct the jury, as stated in the said bank, who indorsed upon the said writ the first bill of exceptions, that the plaintiffs an acknowledgment of the delivery of the pos- were not entitled to recover. session of the said lot and premises therein de And there is no doubt that the court proper. scribed to him as such agent; and afterwards, ly excluded the evidence stated in the second on the same day, the said defendant entered bill of exceptions. into an agreement to hold the said premises, in The writ of possession, which is admitted to the declaration mentioned, as the tenant of have been issued in pursuance of the judgment, the said Bank of the United States; and the did not call for the east half of the lot, of defendant then offered further to prove that which the defendant was in possession, and the he, the said defendant, from the 22d Novem. marshal had no right to change his possession ber, 1834, held, and still holds, possession of of this lot. And the attornment to the agent the said premises, under the said agreement of the bank was voluntary, and without aulast named, and that the said Bank of the thority. The well established principle, there. United States then had, and now has, a good fore, that a tenant shall not be permitted to and lawful legal title to the said premises: to dispute his landlord's title, excludes the de. the admission of the said testimony, so offered fendant from setting up the title of the bank. to be given as aforesaid, the plaintifi, by his The objection as to the sufficiency of the no. counsel, objected, and the court sustained the tice to the defendant cannot be sustained. He objection, and refused to permit such testimony had disclaimed his landlord's title and attorned to be given.

to the bank. Under such circumstances he Messrs. Brent and Brent, for the defendants was not entitled to notice. 3 Peters, 48; 1 in error, contended :

Wheat. Selwyn, 585. But if notice to quit had 1. That the possession of the premises, claim. been necessary, it was given; and, as appears ing to hold in fee-simple, by the plaintiffs, is from the bill of exceptions, all objection to its prima facie evidence of a fee. Ricard v. Wil- "sufficiency and legality" was waived by the liams, 5 Cond. Rep. 238. The bill of exceptions | defendant,

cree.

The declaration, it is insisted, is defective in bill which seeks to have alleged errors revised for 5') several particulars. "That the demises are

want of parties, or for want of proper proceedings inconsistent, and that the ouster is alleged two of one of the parties, is certainly a bill of review;

after the decree against his heirs, after the decease years before the last demise.

in contradistinction to a bill in the nature of a bili On the part of the plaintiff it is intimated, of review; which lies only where there has been no

enrollment of the decree. that as the case is brought up on bills of ex. An original bill, in the nature of a bill of review, ceptions, the defects in the declaration are not brings forward the Interests affected by the decree before the court for consideration. The assign- other than those which are founded in privity of ment of errors is not limited to the bills of ex

representation.

In England, the decree always recites the sub ceptions, but may embrace any errors which stance of the bill and answer, and the pleadings,

and also the facts on which the court founds its deappear on the face of the record.

But in America, the decree does not, ordiThe last demise is stated to have been made narily, recite these, and, generally, not the facts on in eighteen hundred and thirty-six, and the which the decree is founded. But with us, the bill ouster alleged, "by virtue of which said sev: decree, constitute what is properly considered as eral demises, the said Richard entered into all the record. and singular the premises aforesaid, with the The bill of review must be founded on some er.

ror apparent upon the bill, answer. and other appartenances thereunto belonging, and was pleadings, and decree ; and a party is not at liberty thereof possessed; and the said Richard being to go into the evidence at large, In order to estabso thereof possessed, the said John Doe after lish an objection in the decree founded on the supwards, to wit, on the twenty-fourth day of posed mistake of the court in its own deductions November, in the year of our Lord one thou. No party to a decree can, by the general princisand eight hundred and thirty-four, with force ples of equity, claim a reversal of the decree upon a and arms," etc.

bill of review, unless he has been aggrieved by it ;

whatever may have been bis rigbts to Insist on the The day of the ouster need not be alleged, error at the original hearing, or on an appeal. and it is sufficient if laid after the demise. 2 A decree of foreclosure of a mortgage, and of a

sale, are to be considered as the flpal decree in the Chitt. 881; 1 Wheaton's Selwyn, 590.

sense of a court of equity; and the proceedings on In this declaration it is averred that the the decree are a mode of enforcing the rights of the plaintiff entered under the said several demises, creditor, and for the benefit of the debtor. The and being in possession, the said John Doe of the controversy. it a sale is made after such a afterwards, to wit, on, etc. The specific date decree, the defendant not having appealed as he had under a videlicit was unnecessary, and may be a right to do, the rights of the purchaser would not rejected as surplusage, it sufficiently appearing of the decree.

be overthrown or invalidated even by a reversal on the face of the declaration that the ouster After a decree of foreclosure of a mortgage and was after the entry under the several demises. a sale, and the death of the defendant takes place

There is no repugnancy in the several de proceedings against the belrs of the deceased parts mises laid: one, in the name of Jane Stinger, before a sale of the property can be made. was before the marriage, and the last demise being subsequent to the marriage, it is well laid in the naines of the husband and wife

. The APPEAL from the Circuit Court of the Unitrule is well established, that where the right

The case, as stated in the opinion of tho of entry is by virtue of the title of the wife, court, was as follows: the demise may be laid in the name of the hus

“This is the case of a bill, purporting to band, or in the names of both husband and be a bill of review. The substantial facts, as wife. 2 Chitt. 878.

they appear on the record, are as follows: Ga. It is not perceived how the demises as laid briel J. Johnson, being the owner in remainder in this declaration, can prejudice the rights of of a five acre lot, No. 9, in Louisville, Kentucky, the defendant in an action for the mesne prof- of which his mother, Enfield Johnson, was ten. its. They will enable the lessor of the plain. ant for life, under the will of his father, and tiff to recover the profits from the time the de- being also the owner in fee by another title of fendant refused to pay the rent, and this he is another piece of land adjoining the five acre entitled to. Upon the whole, we think there lot, a part of the slip No. 2, on the 12th day of is no error in the proceedings of the Circuit November, A. D. 1818, conveyed the same in Court, and the judgment is therefore affirmed mortgage to James D. Breckenridge, to secure with costs.

the latter for his indorsements of three certain notes of Johnson to Ruggles Whiting, each for four thousand dollars, and for any other notes

and contracts which Breckenridge should there. b'} 'PAULINA 8. WHITING, and Helen B. after make, execute, accept, or indorse for the

Whiting, heirs at law of Ruggles Whiting, benefit of Johnson. Afterwards, on the oth day deceased, James Richardson, administrator of of August, A. D. 1820, 'Johnson and Breck. (*9 Ruggles Whiting, and Enfield Johnson, and enridge, as his surety, being indebted to the Gabriel J. Johnson, Appellants,

Bank of the United States in the sum of nine thousand nine hundred and thirty-one dollars

and thirty-seven cents, arrangements were THE BANK OF THE UNITED STATES.

made between them and Whiting, by which

Whiting assumed the payment of the same Chancery practice-bill of review-non-joinder debt and gave his note therefor, to the bank

of parties—foreclosure of mortgage. accordingly; and as security for the due pay. According to the course of practice in the courts NOTR.-As to bill of review-see note to 8 L ed. of the United States, in chancery cases, an original U. 8. 891. decree is to be deemed recorded and enrolled, as of Right to malntain bill of review as dependent the term in which the final decree was passed. À upon interest-see note to 36 L.R.A. 385.

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ment thereof, Johnson and his mother, Enfield, ments, and the extension of the city, parts of Johnson, Breckenridge and Whiting, on the the grounds so sold are now among the most same day, executed a mortgage of the five acre beautiful and densely built parts of the city. lot and slip of land above mentioned to the The answer also states that Whiting died in. Bank of the United States, reciting, among solvent and deeply indebted to the bank, by cer. other things, the foregoing arrangement. The tain other judgments and notes." condition of the mortgage, among

other things, The case was argued by Mr. Underwood, at stated, that it was agreed by the parties, that the bar, and by a printed argument submitted after the satisfaction of the said demands due by Mr. Lovering for the appellants; and by Mr. by Whiting to the bank, and by Gabriel J. Serjeant for the appellees. Johnson to Whiting, the estate or the residue For the appellants, Paulina and Helen Whit. thereof, or any surplus in money, by the sale ing, it was contended, they have an evident in. thereof, should be paid or conveyed to Enfield terest in the land. Being all infants at the Johnson, or her assigns. The mortgage also death of their father, in February, and at the contained a stipulation for the sale of the rendition of the last decree in May, they are premises, to meet the payment of the debt due within the exceptions of every statute of limit. to the bank. In April, 1823, the debt due and ations operating by direct or remote analogy on thus secured to the bank remaining unpaid, a this case; and their rights being joint, the disabill for a foreclosure and sale was brought by bilities must be removed before the statute can the bank, in the Circuit Court of the United run. In England the limitation to bills of reStates for the District of Kentucky; and to view is twenty years, and by the law of the that bill Gabriel J. Johnson, Enfield Johnson, United States five years, on writs of error: and Whiting were made parties. But Brecken which rnishes the criterion in this case. Act ridge was not made a party. At the Novem of the Legislature of Kentucky of 1816. May ber Term of the Circuit Court, A. D. 1826, a v. Marsh, 2 Litt. Rep. 148. decree of foreclosure of all the equity or right The interest of Whiting in the land was also of resumption of the defendants in the mort. certain and evident, and material. The title to gaged premises, was passed; and a further de- the bank was his only security for a part, at cree, that the premises should be sold by com- least, of his large demand, and the only conmissioners. The sale took place accordingly; sideration for his assumption of the debts of the bank became the purchasers, and the sale Johnson to the bank. The hopeless insolvency was confirmed by the Circuit Court, at May of Johnson rendered the security of the land Term, 1827. In the intermediate time between the only means of indemnity for his responsi. the original decree of foreclosure and the sale, bility for the debt of ten thousand dollars—the viz., on the 26th of February, 1827, Whiting bank held the property as a trustee for his died in Massachusetts, leaving the plaintiffs in benefit. the present bill, Paulina Whiting, and Helen B. The proceeding in the original cause was to Whiting, and one L. R. Whiting (since dead be regulated by the laws of Kentucky; and as without issue) his children and heirs-at-law, Breckenridge had an interest in the property, who were then infants under age; and the he should have been made a party. The reco youngest, Helen, did not come of age until 1831. ord shows the existence of this interest, and he

The present bill is brought by Paulina Whit- has been deprived of it by the decree of the ing and Helen B. Whiting, by James Richardcourt;

and yet no notice of the proceedings has Bon, administrator of Ruggles Whiting, and by been given to him. Gabriel J. Johnson, and Enfield Johnson, By the laws of Kentucky the assignee of a against the Bank of the United States; and promissory note is liable to the assignor, if due after stating the proceedings in the original diligence has not been used to collect the note; suit upon the mortgage, and that the sale was and Breckenridge was the indorser of notes made at a great sacrifice of the property, it given for a steamboat. Whiting had proceed. relies on the following grounds of error in the ed on the notes against Johnson, and had ob. proceeding, decree and sale in the original suit: tained judgment against Johnson. He then 1. That it was irregular and erroneous to enter made an agreement to discharge Johnson, hold. tain the bill, and pronounce the decree for fore- ing Breckenridge liable on his indorsements. closure and sale, without Breckenridge being The mortgage was the means of indemnity to made a party defendant. 2. That it was irreg. Breckenridge, and for this reason he was a ular and erroneous to sell the property mort. necessary party in the proceedings to foreclose. gaged without a revival of the suit against the Any balance which should remain after paying heirs of Whiting. 3. That it was unjust and the debt to the bank, would have been applied oppressive to sell in the manner and at the for the relief of Breckenridge, on the notes of price at which the sale took place.

Johnson. Morrett v. Western, *2 Vern. (*9 The answer of the bank denies all equity in 663; Haines v. Beach, 3 Johns. Ch. Rep. 456; the plaintiffs, and insists that the decree and 4 Ch. Rep. 605; Ensworth v. Lambert, 6 Ch. sale were fair and just. It also denies that Rep. 450; 4 Cond. Rep. S. Ct. U. S. 190; Cald. 8'] "Whiting and Breckenridge had any title well v. Taggart, 4 Peters, 190; Mayo v. Tompto the property, and insists that they joined kins, 6 Mun. 520. in the mortgage merely to complete the ar- The sale of the property after the decree of rangements made between Johnson and them foreclosure was irregular, without reviving the selves. It also denies that the death of Whit- proceedings against the representatives of ing was known at the time of the sale. It Whiting. His death before the sale made it as states that the property was, after the pur. necessary to make his heirs and representatives chase by the bank, improved, and parts thereof parties, as it was originally necessary to make sold to bona fide purchasers, for valuable con- Whiting a party. If it is said that there was siderations; and by reason of the improve-l a right to sell under a levy made before the

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