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OF THE

Supreme Court of the United States,

AT

JANUARY TERM, 1839.

1*] "CLEMENT WOODWARD, Plaintiff in

Error,

V.

Mr. Brent. In a writ of error in the King's Bench in England, amendments of the record 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.

Mistake of clerk of Circuit Court-practice-
landlord and tenant-pleading.

Where, by a misprision of the clerk of the Cirwrit of error had not been entered according to cult Court, the judgment in a case brought up by a the declaration, the Supreme Court allowed an amendment to be made by the entry of the judgment, without awarding a certiorari to the Circuit Court. This was done in a case which had been brought up by a writ of error to the previous term of the court.

It is a well established principle of law, that a tenant cannot dispute the title of his landlord; and where the marshal of the District of Columbia, having a writ of habere facias possessionem for the west half of a lot in the city of Washington, took possession of the east half of the lot, and the tenant of the persons who claimed to be the owners of the lot attorned to the plaintiffs in the writ, such attornment was without authority, and was void.

A tenant who disclaims his landlord's title is not entitled to notice to quit and deliver up possession. In an action of ejectment, the day of the ouster need not be alleged; and it is sufficient if it is laid after the demise.

The specific date under a videlicit is not necessary in a declaration in ejectment, and may be reJected as surplusage; If It sufficiently appears on the face of the declaration that the ouster was after the entry under the several demises.

The rule is well established, that when the right of entry is by ouster of the title of the wife, the demise may be laid in the name of the husband, or in the names of the husband and wife.

N error to the Circuit Court of the United

I states for the County of Washington, in

the District of Columbia.

The court allowed the amendment to be made in this court. The case, as stated in the opinion of the court, was as follows:

"An action of ejectment was commenced by the defendants in error against the plainof lot numbered 2, in square numbered 348, in tiffs, to recover possession of the eastern half the city of Washington. Several distinct demises were laid in the declaration, of different dates and for different periods of them.

"One of the demises was in the name of Jane Stinger, while she was single, but now Sarah Jane Brown, wife of the said James Brown; and another in the names of James Brown and Sarah Jane Brown, his wife.

"The general issue was pleaded, and the jury found a general verdict of guilty.

"On the trial the plaintiffs proved, that up to the 22d Nov. 1834, the defendant was the tenant of Sarah Jane Stinger, who intermarried with the plaintiff Brown in the fall of the year 1835. That after November, 1834, he refused to pay rent, and claimed to hold possession of the premises as tenant of the Bank of the United States. That at the time the premises were rented to the defendant the said Sarah Jane was seized and possessed of the same in fee-simple. And that about the time of his refusal to pay rent, notice was given to the defendant to quit; and also afterwards, in January, 1835.

"Upon this evidence the plaintiffs rested 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 entering the judgment according to the declara

tion.

Mr. Coxe, for the plaintiff in error, objected to the allowance of the motion. The case came up to the last term of this court, and it is now too late to issue the certiorari asked for. 2*] The error cannot be amended without an application to the Circuit Court for authority to make the amendment. The clerk cannot, therefore, send up an amended record.

"And the defendant proved that the deputymarshal, having a writ of habere facias possessionem against the defendant for the west half of said lot, but supposing the writ to be for the east half, of which the defendant was in pos. session, he was required by the deputy-marshal to surrender the possession of the east half of the lot to the agent of the Bank of the United States; and he did surrender the possession to him, and the defendant agreed to hold possession under the bank. But the court

overruled this evidence; to which opinion of the court the defendant also excepted."

The writ of error was prosecuted by the defendant in the Circuit Court.

The case was argued by Mr. Coxe for the plaintiff in error, and by Messrs. Brent and Brent for the defendants.

The counsel for the plaintiff in error presented two questions for the consideration of the court on the first bill of exceptions. 3*] *1st. Whether in case of a tenancy from month to month, where the tenant held over after the expiration of the tenancy, and continued so to hold without paying rent for a period of fourteen months, the notice to quit at the expiration of the ensuing month be sufficient.

shows the possession of the plaintiffs below, and that they held in fee.

2. Notice to quit is not necessary when the tenant_disclaims. Catlin v. Washburn, 3 Vermont Rep. 25; Jackson v. Wheeler, 6 Johns. 272; Jackson v. M'Leod, 12 Johns. 182; Cowper, 621; Buller, N. P. 96; 1 Wheaton's Selwyn, 585; 5 American Common Law Cases, 43, 44; 3 [*4 Peters, 45. But if, in a case like this, notice to quit is necessary, it was given.

3. The defendant, now the plaintiff in error, being tenant, could not dispute the title of his landlord. Jackson v. M'Leod, 18 Johns. 182; 3 Johns. 223, 504; Blight's Lessee v. Rochester, 5 Cond. Rep. 339; Willison v. Watkins, 3 Peters, 47; 5 American Common Law Rep. 41, 42; 1 Wheaton's Selwyn, 566, 567.

4. The plaintiff in error cannot, by a con

2d. Whether such notice as is set forth in the bill of exceptions, by an agent whose appoint-structive ouster and attornment, set up an adment is merely oral, and the notice verbal, is sufficient.

On the second bill of exceptions, the plaintiff's counsel objected to the ruling of the Circuit Court, by which the objection of the defendants in that court to evidence offered by the plaintiff was refused.

verse title; and if he could, the attornment, through a mistake, is void. Love v. Dennis, 1 Harper's S. C. Rep. 70; 1 Marshall, 558; 6 Taunton Rep. 206; 8 Serg. & Lowber, 237, 239; 9 Serg. & Lowber, 10; 13 Serg. & Lowber, 58, 59; 3 Peters, 43; Wilkins v. Mayor & Co. 6 Harris & Johnson, 533; 1 Term. Rep. 760; 3T. R. 14; 9 T. R. 62; 2 Starkie on Evidence, 532.

6. The demise by Brown and wife is well laid. 2 Chitty's Plead. 878, note T.

Mr. Justice M'Lean delivered the opinion of the court, after stating the case:

The counsel for the plaintiffs contend that the ruling of the court was erroneous, and that the declaration is essentially defective.

It appears from the bill of exceptions that the plaintiffs not only proved title, but also that the defendant entered into the possession of the premises under their title, as tenant. These facts being proved, the court very properly refused to instruct the jury, as stated in the first bill of exceptions, that the plaintiffs were not entitled to recover.

The defendant, to sustain the issue on his part, produced a competent witness, who testi- 5. The Bank of the United States cannot be fied that, on the 22ď 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 against the said defendant, in company with W. W. Corcoran, the agent of the Bank of the United States, named as the lessor of the plaintiff in said writ, and which was supposed by the said parties to comprehend, but did not in fact comprehend, the premises mentioned in the declaration; that it was then and there represented to the defendant by the said agent and the marshal, that the latter had such a writ for said premises, and the said defendant, supposing it to be such a writ as represented, voluntarily and peaceably surrendered the possession of said premises to the said agent of the said bank, who indorsed upon the said writ an acknowledgment of the delivery of the possession of the said lot and premises therein described to him as such agent; and afterwards, on the same day, the said defendant entered into an agreement to hold the said premises, in the declaration mentioned, as the tenant of the said Bank of the United States; and the defendant then offered further to prove that he, the said defendant, from the 22d November, 1834, held, and still holds, possession of the said premises, under the said agreement last named, and that the said Bank of the United States then had, and now has, a good and lawful legal title to the said premises: to the admission of the said testimony, so offered to be given as aforesaid, the plaintiff, by his counsel, objected, and the court sustained the objection, and refused to permit such testimony to be given.

Messrs. Brent and Brent, for the defendants in error, contended:

And there is no doubt that the court properly excluded the evidence stated in the second bill of exceptions.

The writ of possession, which is admitted to have been issued in pursuance of the judgment, did not call for the east half of the lot, of which the defendant was in possession, and the marshal had no right to change his possession of this lot. And the attornment to the agent of the bank was voluntary, and without authority. The well established principle, therefore, that a tenant shall not be permitted to dispute his landlord's title, excludes the defendant from setting up the title of the bank.

The objection as to the sufficiency of the notice to the defendant cannot be sustained. He had disclaimed his landlord's title and attorned to the bank. Under such circumstances he was not entitled to notice. 3 Peters, 48; 1 Wheat. Selwyn, 585. But if notice to quit had been necessary, it was given; and, as appears from the bill of exceptions, all objection to its "sufficiency and legality" was waived by the

1. That the possession of the premises, claiming to hold in fee-simple, by the plaintiffs, is prima facie evidence of a fee. Ricard v. Williams, 5 Cond. Rep. 238. The bill of exceptions | defendant.

The declaration, it is insisted, is defective in | bill which seeks to have alleged errors revised for

5*] several particulars. That the demises are inconsistent, and that the ouster is alleged two years before the last demise.

On the part of the plaintiff it is intimated, that as the case is brought up on bills of exceptions, the defects in the declaration are not before the court for consideration. The assign

ment of errors is not limited to the bills of exceptions, but may embrace any errors which appear on the face of the record.

The last demise is stated to have been made in eighteen hundred and thirty-six, and the ouster alleged, "by virtue of which said several demises, the said Richard entered into all and singular the premises aforesaid, with the appurtenances thereunto belonging, and was thereof possessed; and the said Richard being so thereof possessed, the said John Doe afterwards, to wit, on the twenty-fourth day of November, in the year of our Lord one thousand eight hundred and thirty-four, with force and arms," etc.

The day of the ouster need not be alleged, and it is sufficient if laid after the demise. 2 Chitt. 881; 1 Wheaton's Selwyn, 590.

In this declaration it is averred that the plaintiff entered under the said several demises, and being in possession, the said John Doe afterwards, to wit, on, etc. The specific date under a videlicit was unnecessary, and may be rejected as surplusage, it sufficiently appearing on the face of the declaration that the ouster was after the entry under the several demises. There is no repugnancy in the several demises laid: one, in the name of Jane Stinger, was before the marriage, and the last demise being subsequent to the marriage, it is well laid in the names of the husband and wife. The rule is well established, that where the right of entry is by virtue of the title of the wife, the demise may be laid in the name of the husband, or in the names of both husband and wife. 2 Chitt. 878.

It is not perceived how the demises as laid in this declaration, can prejudice the rights of the defendant in an action for the mesne profits. They will enable the lessor of the plaintiff to recover the profits from the time the defendant refused to pay the rent, and this he is entitled to. Upon the whole, we think there is no error in the proceedings of the Circuit Court, and the judgment is therefore affirmed with costs.

6*} *PAULINA 8. WHITING, and Helen B. Whiting, heirs at law of Ruggles Whiting, deceased, James Richardson, administrator of Ruggles Whiting, and Enfield Johnson, and Gabriel J. Johnson, Appellants,

V.

THE BANK OF THE UNITED STATES.

Chancery practice-bill of review-non-joinder of parties-foreclosure of mortgage.

According to the course of practice in the courts of the United States, in chancery cases, an original decree is to be deemed recorded and enrolled, as of the term in which the final decree was passed. A

want of parties, or for want of proper proceedings after the decree against his heirs, after the decease of one of the parties, is certainly a bill of review; in contradistinction to a bill in the nature of a bill enrollment of the decree.

of review; which lies only where there has been no

An original bill, in the nature of a bill of review, brings forward the interests affected by the decree, other than those which are founded in privity of representation. In England, the decree always recites the substance of the bill and answer, and the pleadings, and also the facts on which the court founds its decree. But in America, the decree does not, ordinarily, recite these, and, generally, not the facts on which the decree is founded. But with us, the bill and answer, and other pleadings, together with the decree, constitute what is properly considered as

the record.

The bill of review must be founded on some erpleadings, and decree; and a party is not at liberty ror apparent upon the bill, answer. and other to go into the evidence at large, in order to estab lish an objection in the decree founded on the upposed mistake of the court in its own deductions from the evidence.

No party to a decree can, by the general principles of equity, claim a reversal of the decree upon a bill of review, unless he has been aggrieved by it; whatever may have been his rights to insist on the error at the original hearing, or on an appeal. A decree of foreclosure of a mortgage, and of a sale, are to be considered as the final decree in the sense of a court of equity; and the proceedings on the decree are a mode of enforcing the rights of the creditor, and for the benefit of the debtor. The original decree of foreclosure is final on the merits of the controversy. If a sale is made after such a decree, the defendant not having appealed as he had a right to do, the rights of the purchaser would not be overthrown or invalidated even by a reversal of the decree.

After a decree of foreclosure of a mortgage and a sale, and the death of the defendant takes place after the decree, it is not necessary to revive the proceedings against the heirs of the deceased party before a sale of the property can be made.

APPEAL from the Circuit Court of the United States for the District of Kentucky. The case, as stated in the opinion of the court, was as follows:

"This is the case of a bill, purporting to be a bill of review. The substantial facts, as they appear on the record, are as follows: Gabriel J. Johnson, being the owner in remainder of a five acre lot, No. 9, in Louisville, Kentucky, of which his mother, Enfield Johnson, was tenant for life, under the will of his father, and being also the owner in fee by another title of another piece of land adjoining the five acre lot, a part of the slip No. 2, on the 12th day of November, A. D. 1818, conveyed the same in mortgage to James D. Breckenridge, to secure 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 thereafter make, execute, accept, or indorse for the benefit of Johnson. Afterwards, on the 9th day of August, A. D. 1820, *Johnson and Breck- [7 enridge, as his surety, being indebted to the

Bank of the United States in the sum of nine
thousand nine hundred and thirty-one dollars
and thirty-seven cents, arrangements were
made between them and Whiting, by which
Whiting assumed the payment of the same
debt and gave his note therefor, to the bank
accordingly; and as security for the due pay.

NOTE. As to bill of review-see note to 8 L. ed.
U. S. 891.
Right to maintain bill of review as dependent
upon interest-see note to 36 L.R.A. 385.

The case was argued by Mr. Underwood, at the bar, and by a printed argument submitted by Mr. Lovering for the appellants; and by Mr. Serjeant for the appellees.

For the appellants, Paulina and Helen Whiting, it was contended, they have an evident interest in the land. Being all infants at the death of their father, in February, and at the rendition of the last decree in May, they are within the exceptions of every statute of limitations operating by direct or remote analogy on this case; and their rights being joint, the disabilities must be removed before the statute can run. In England the limitation to bills of review is twenty years, and by the law of the United States five years, on writs of error: which furnishes the criterion in this case. Act of the Legislature of Kentucky of 1816. May v. Marsh, 2 Litt. Rep. 148.

The interest of Whiting in the land was also certain and evident, and material. The title to the bank was his only security for a part, at least, of his large demand, and the only consideration for his assumption of the debts of Johnson to the bank. The hopeless insolvency of Johnson rendered the security of the land the only means of indemnity for his responsi bility for the debt of ten thousand dollars-the bank held the property as a trustee for his benefit.

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 inBank of the United States, reciting, among solvent and deeply indebted to the bank, by cerother things, the foregoing arrangement. The tain other judgments and notes." condition of the mortgage, among other things, stated, that it was agreed by the parties, that after the satisfaction of the said demands due by Whiting to the bank, and by Gabriel J. Johnson to Whiting, the estate or the residue thereof, or any surplus in money, by the sale thereof, should be paid or conveyed to Enfield Johnson, or her assigns. The mortgage also contained a stipulation for the sale of the premises, to meet the payment of the debt due to the bank. In April, 1823, the debt due and thus secured to the bank remaining unpaid, a bill for a foreclosure and sale was brought by the bank, in the Circuit Court of the United States for the District of Kentucky; and to that bill Gabriel J. Johnson, Enfield Johnson, and Whiting were made parties. But Breckenridge was not made a party. At the November Term of the Circuit Court, A. D. 1826, a decree of foreclosure of all the equity or right of resumption of the defendants in the mortgaged premises, was passed; and a further decree, that the premises should be sold by commissioners. The sale took place accordingly; the bank became the purchasers, and the sale was confirmed by the Circuit Court, at May Term, 1827. In the intermediate time between the original decree of foreclosure and the sale, viz., on the 26th of February, 1827, Whiting died in Massachusetts, leaving the plaintiffs in 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 recyoungest, 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 Richard-court; and yet no notice of the proceedings has son, 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 proceedrelies on the following grounds of error in the ed on the notes against Johnson, and had obproceeding, 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, holdtain 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. [*9 663; Haines v. Beach, 3 Johns. Ch. Rep. 456; 4 Ch. Rep. 605; Ensworth v. Lambert, 6 Ch. Rep. 450; 4 Cond. Rep. S. Ct. U. S. 190; Caldwell v. Taggart, 4 Peters, 190; Mayo v. Tompkins, 6 Mun. 520.

The answer of the bank denies all equity in the plaintiffs, and insists that the decree and sale were fair and just. It also denies that 8*] *Whiting and Breckenridge had any title to the property, and insists that they joined 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 purchase by the bank, improved, and parts thereof sold to bona fide purchasers, for valuable considerations; and by reason of the improve

necessary to make his heirs and representatives parties, as it was originally necessary to make Whiting a party. If it is said that there was a right to sell under a levy made before the

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