Cutter v. Waddingham

Estoppel — Vendee.—A vendee holds adversely to his vendor, and is not estopped from denying his vendor’s title. Evidence — Survey.—The survey of a tract confirmed is conclusive upon the parties claiming under the confirmation, but the certificate of the surveyor, that the lot surveyed was the lot conceded to the confirmee, is not evidence of such fact, the confirmation not calling for the concession. Marriage Contract. — Cutter v. Waddingham, 22 Mo. 206, p. 3, affirmed. Damages — Measure.—The actual annual value of the property detained is the measure of damages in an action of ejectment; and the fact that plaintiffs and defendants are tenants in common makes no exception to the common rule.

Appeal from St. Louis Circuit Court. The legal title under which plaintiffs claimed was the act of Congress of April 29, 1816, confirming the claims recommended by Becorder Bates. The report of the recorder upon this claim was as follows : Province Land Book, No. 2, p. 29, contained the survey by Duralde, Surveyor General of Upper Louisiana, made between the year 1770 and 1772, and called for a lot of one by forty arpens in the St. Louis common field, bordering on one side immediately upon the domain of five and one-fourth arpens in width, and on the other upon Moreau. Livre Terrein, No. 1, p. 27, contained a concession by St. Ange, dated July 17, 1769, to Louis Lirette, of a lot one by forty, bounded on one side by land of the widow Marechal, and on the other by that of Condé. The act of sale of Louis Lirette to John B. Yifvarenne, dated August 20, 1774, executed before Lt. Gov. Piernas, described the land as 1 by 40, bounded on one side by widow Marechal, and on the other side by the domain of the king, or Señor Condé, and as being the same tract granted to Lirette, under the French government, by Messrs, the Commandant and Judge of this Province, according to the grant which the said Lirette has this day given up to the said Yifvarenne, &c. J. B. Yifvarenne married Genevieve Cardinal August 6, 1777. His son J. B. Yifvarenne was baptized May 8, 1779. On January 1, 1781, a child aged fourteen months was buried. On August 18, 1780, a son, Louis, under whom plaintiff claims, was baptized. April 9,1782, a son, Frangois, was baptized. The inventory of Genevieve Yifvarenne was made before Gov. Cruzat August 19, 1782, and stated that the governor went to the house of Genevieve Cardinal to make an inventory of the property found belonging to her and to her two younger children living with her, and that the goods were committed to Mr. Sans Souci for safe keeping. The account of sales made October 2, 1782, recited the sale at “ auction, at the house of Genevieve Cardinal, of the effects which she left when she disappeared from this place, belonging to her and to her two children whom she took with her.” U. S. survey 1479 recited that the survey was made of the tract, it being the tract of 1 by 40 arpens granted to Louis Lirette 17th July, 1769, by the Spanish authorities of the Province of West Louisiana, surveyed in the year 1770, 1771 or 1772, by Martin Duralde, &c. (See Liv. Ter. No. 1, p. 27, & No. 2, p. 29, in the office of the recorder of land titles, and confirmed to Lirette’s representatives by act of Congress of 29th April, 1816. The survey recites that the tract of 40 arpens is bounded by the king’s domain of 5£ arpens and by Moreau’s tract, and then gives courses and distances. The survey was executed October 19, 1826, and approved June 7, 1845. The defendants claimed title through Genevieve Cardinal, widow of J. B. Yifvarenne. I. Estoppel binds only the parties to the transaction out of which it arises, and in respect to strangers never, has any effect. It seems to be settled by authority that one decisive test of the binding force of an estoppel in a particular case is to inquire whether the person invoking it is himself bound by it. If he is not bound, he cannot claim the benefit of it. Coke says, “Every estoppel ought to be reciprocal, that is, to bind both parties, and this is the reason that regularly a stranger shall neither take advantage nor be bound by the estoppel.” (Co. Litt. 352.) The distinction here pointed out by Coke will be found to be adopted in all the adjudged cases. Without citing the multitude of cases that are to be found in the common books of reference, it may be sufficient to direct the attention of the court to two comparatively recent cases, in which this distinction has been acted on. (Gaunt v. Wainmann, 3 Bing, N. C. 69 ; Sparrow v. King-man, 1 Comst. N. Y. 242; Co. Litt. 352; Macklotv. Dubreuil, 9 Mo. 477 ; Landes v. Perkins, 12 Mo. 238; Bogy v. Shoab, 13 Mo. 367.) Sparrow v. Kingman, 1 Comst. 242, was a dower case, and the defendant went into possession under a deed of the husband transferring the fee. The doctrine of estoppel was invoked on behalf of the widow. But the court decided that the defendant might show, if he could, that the husband had no estate at all. A great number of previous decisions in New York were overruled by this decision. The attention of the court is invited to the opinions of the judges, as they review the general doctrine of estoppel with learning and candor. If this old and established rale is adhered to, the error of the court below is manifest. The plaintiff was a stranger to the deeds out of which the supposed estoppel arose. He claimed the, land in controversy by a title which, if good for anything, was paramount to any title in the parties to those deeds. Nothing that was said, done or transacted by those parties was admissible in evidence against him, much less could it bind him by estoppel. The present suit was commenced in 1846, before the passage of the new practice act; and all the proceedings are regulated by the law as it stood anterior to 1849. II. Under the general principles of the law applicable to all actions, if by any event pending the suit the plaintiff’s right of action is determined, there can be no recovery. The action of ejectment is mixed, being founded on the right to the possession of real property and to damages for withholding the intervening profits. It may well happen that pending the suit the plaintiff’s right to the possession of the property may be lost, and his right to the rents and profits, during the time he was owner, continue. In such case the suit is not abated, but is limited to the recovery of damages. We can therefore only reason from analogies furnished by cases under the fictitious action of ejectment adopted in the English courts. A striking analogy is furnished in the case of a transfer of interest, by the death of the lessor of the plaintiff in an English ejectment. By such transfer of interest, a pending suit of ejectment is reduced to a mere claim or damages, and the possession cannot be recovered. This was decided in the case of Thrustout v. Grey, 2 Strange, 1056. Mr. Adams, in commenting on this case, says a trial under such circumstances is unknown in practice, as the damages in the fictitious action of ejectment are merely nominal, and the executor of the lessor would have no claim to costs. (Adams’ Ejec. 320.) In many of the American States the rents and profits may be recovered directly in the original action of ejectment, and the English rule seems to have been adopted to allow a recovery for the rents and profits, in the name of the fictitious lessee, after the death of the lessor. (Kinney v. Beverly, 1 Hen. & Mun. 531; Jackson v. Davenport, 18 J. R. 295; Watson v. Tindal, 24 Georg. 494; Frier v. Jackson, 8 J. R. 507.) In no case, however, is the nominal plaintiff allowed to recover the possession of the land after the death of the real plaintiff. In Pennsylvania, (Regan v. Phillips, 4 Yeates, 382,) it is held that if pending the suit the title of the plaintiff be divested by act of law or his own act, he shall not recover possession, but may have his damages and costs. To the same effect is the case of Murray v. Garretson, 4 S. & R. 130. In Maryland, Oresap v. Huston, 9 Gill, 269 ; Carrol v. Nor-wood, 5 Harr. & J. 164. In Vermont, Benton v. Austin, 4 Yt. 105, and Cheney v. Cheney, 26 Yt. 606. Also, Torrence v. Betsey, 30 Miss. Rep. 129. III. Proof was given on the part of the plaintiff, that if the premises had been free from litigation and had been put to rent, the rents and profits would have amounted to a sum justifying the finding of the jury. On the other hand, it was shown that the rents and profits actually received by the defendants did not exceed the public charges. Upon this evidence the defendants asked the following instruction: “ 25. If the jury find that the plaintiff and defendants, at the commencement of this suit, were respectively entitled to undivided interests in the lot in controversy, then the jury should find for damages no more than the proportional share of the plaintiff of the rents and profits actually derived by the defendants from said premises.” This instruction was refused, and the jury found for the plaintiff 11-15 of the land and gave to the plaintiff damages to the amount of $40,000, and assessed the monthly value of the plaintiff’s share at $733, equivalent to $8,796 per annum. The real point of dispute between the parties is whether one tenant in common can recover in ejectment from his co-tenant more than his share of the rents and profits actually received by such co-tenant. The reasonable measure of damages in all cases is the value of the right of which the party has been deprived. It becomes necessary then to examine the relation of tenants in common to ascertain the value of a right which one withholds from the other. (Wheeler v. Horne, Willes, 208; Badger v.- Holmes, 6 Gray, 118 ; Moses v. Boss, 41 Me. 360 : Buffner v. Lewis, 7 Leigh, 720.) I. The defendants, having denied plaintiff’s right in tuto and excluded him from the land, was a trespasser and liable as such in tort, in which case the rule is always the actual damages and may be more. (11 Ired. 211; 9 Ired. 222; 3 Wilson, 118.) The plaintiff is not confined to the very mesne profits only, but may recover for his trouble. I have known four times the value of the mesne profits given by a jury in this sort of action of trespass. (24 Mo. 541.) The law of oirster in an action of ejectment betweeir co-tenants, wherein one denies the other ever had title, must be the same as in an action where there is no such relation. (1 Salkeld, 392; 7 Penn. S. R. p. 400 ; 3 Shepley, 218; 8 Dana, 163 ; 9 Dana, 385; 44 Me. 154; 15 N. H. 412; B. Mon. 457 ; 2 ¥m. Black, 1077 ; 3 Wilson, 118.) The Missouri statutes concerning ejectment would seem to settle this question. (1 R. O. 1855, p. 692, § 13.) II. The plaintiff’s recovery was not defeated by the transfer of the land by Gutter pending suit. It may be conceded that in the absence of any statutory provision a conveyance of: the locus in quo pending the suit would prevent a recovery of the land conveyed; such conveyance, however, did not annul the title to the land. The right remained in being and could have been enforced by the assignee in another proceeding. The question, then, of how it was to be enforced was one merely of practice, and was within the scope of legislation. The Legislature provided, by an act approved February 28, 1859, that all suits pending and in the condition of this one “ might be prosecuted in the name of the original party.” (Sess. Acts of 1858-9, p. 36.) This act has been assailed as unconstitutional. No court has ever, so far as I know, denied to the Legislature the power to change the rules of practice in relation to pending suits. (16 Mo. 68 ; 10 Wend. 210 ; 2 Paige, 284; 4 Oow. 384 ; 11 Paige, 400; Davidson v. Wheeler, 1 Morris, Iowa, 238; also Ballard v. Ridgeley, Id. p. 27.) “ When the suit in this case was commenced the defendant could have defeated the suit unless plaintiff proved the names of the persons composing the firm, but the statute took away this technicality of the defence.” (2 Yeager, 125; Hope v. Johnson, 16 B. Mon. 15 ; Walston v. Commonwealth, 1 Hempstead, 118 ; 2 Stewart, 228, anonymous ; 1 J. J. Marsh, 563 ; 12 Smedes & Mars. 347 ; Bolton et al. v. Johnson et al., 5 Barr. 145; Hunckle v. Riffert, 6 Barr. 196.) In this case the act gave to one of the plaintiffs a recovery in a form which he did not have when the suit was brought. It is believed that at all times in Missouri ejectment has been the appointed remedy in some classes of titles. (1 RC. 1825, p. 343 ; Mitchell v. Tucker, 10 Mo. 260.) In 1849 the Wells code introduced without objection from the bar the practice of carrying on suits in certain cases in the name of a plaintiff who had conveyed his title. This was the equity practice. But it has been objected that the title of the act in question being in these words, “An act to amend article eleven of the act to regulate practice in courts of justice, approved 12th December, 1855,” it cannot embrace the present suit, because said act of December 12, 1855, by section 44 of the 13th article thereof, was prevented from operating on actions pending when it took effect. If such a construction should be placed on it, the act of February 28, 1859, is rendered null. The provisions in regard to costs in the act of 1859 were immaterial parts thereof, all courtshaving all said powers independent of it. No court of law or equity would permit any one to use another’s name in the incurment of costs against him without indemnity. But in fact the title of the act has nothing to do with this question. It is no part of the act, and is never seen or considered except when the words of a statute are too vague and uncertain to be comprehended of themselves. (1 Kent’s Com. 460 ; 2 Cranch, 386 ; Bus-bee’s N. C. Law R. 131; 1 Md. 351, 370 ; 6 Engl. 44; Davie’s R. 38, 45 ; 1 Geo.'171 ; 9 Porter, 270 ; 3 McCord, 298; 15 John. 89; 1 Kent, 461; 2 Md. Ill; 2 Geo. 526 ; 5 Md. .471 ; 2 Bailey, 344.) III. The defendants were estopped to set up title in Lirette, because Lirette was himself estopped to set up title as against Yifyarenne and his assignee on the facts stated in instruction No. 1 of the plaintiff. It will be seen Lirette conveyed the land in dispute to Yifvarenne, “ guarantying ” the same “ from all mortgages and claims generally whatsoever.” This deed was the solemn contract of Lirette never to disturb the possessor of enjoyment of the property conveyed by Lirette. This is an express covenant of non-claim. (14 Cal. 473.) The civil law is the common law of Continental Europe, and of course of Spain, till shown to be altered by the Cortes or the decrees of Spanish monarchs. (1 Kent, 514.) What, then, was the civil law o f sales ? Why, that in every sale there is a warranty in consequence of the sale — “ Sive tota res evincatur, sive pars habet regressum emptor in venditoretn” — whether the part or the whole of the thing sold is taken away, the purchaser has his recourse on the seller. (1 Domat. 57, pt. 3 of § 2 ; 2 Mor. & Carl, Partidas L. 32.) At all times, then, after the sale Lirette was bound not to claim this land against Yifvarenne. Could, then, the defendant set up Lirette’s title against the plaintiff when Lirette could not doit? (3 Mo. 40.) By the descent of the land to Louis Yifvarenne and from him to plaintiff’s assignors, the covenant of warranty passed to the plaintiff and estopped Lirette from setting up a claim against plaintiff. (Stoddard v. Chambers, 2 How, 316.) “ It is an inflexible rule that where both parties claim under the same person, neither can deny his right, and, as between them, the elder is the better title.” (8 Ired. 283.) IY. The United States survey No. 1479 was conclusive of the true location of the one by forty arpens of land granted to Lirette and by him sold to Yifvarenne. (8 How. 360; 17 How. 403 ; 18 How. 512 ; 30 Mo. 202 ; 28 Mo. 556.) Y. The inventory was not conclusive proof of pedigree. This document was excluded on the first trial. (See 16 Mo. 45.) “ As letters testamentary are evidence of the death of the intestate, there would seem to be no impropriety in permitting the inventory and appraisement under the Spanish law to have that effect.” This is, as far as it is possible to go, “ evidence of the death of the intestate ; ” but this inventory is not letters testamentary on John B. Yifvarenne, nor does it say that he is dead. Taking the whole thing to be true as set forth in the paper, what is it? Why, that Genevieve, wife of the late John B. Yifvarenne, had two children living with her. The inventory is of her property, not Yifvarenne’s. The paper should prove her death, not his. But it is used to show she is living and he dead. Letters of administration are only prima facie evidence of death. They cannot be more. But this is not an inventory of a decedent’s effects at all. ( See 2 Moreau & Carl, Partidas, 1014, and 1 White’s R. 112.) The location of the lot by a survey was the exclusive right of the government, it' being confirmed “ to be surveyed.” It was the government’s bounty, and therefore its right to reserve the power of its location. (8 How. U. S. Rep. pp. 345, 363, & 17 How. 403, 413-16.) The defendants were estopped from denying that Vifvarenne was the owner of the lot when he died, if the jury found the fact to be that the defendants claimed the lot under Yifvarenne. (Jackson, ex. dem. v. Bush, 10 J. R. 223 ; Jackson, ex. dem. v. Hinman, 10 J. R. 292 ; Jackson v. Street-er, 5 Cow. 529 ; Lincoln v. Jackson, 8 Cow. 586 ; Jackson v. Yosburg, 9 J. R., 270; 27 Mo. 48 — see Ins. on p. 49 — see pp. 52, 53; Dickson v. Anderson et ah, 9 Mo. 155.) The defendant’s cases are not applicable. Landis v. Perkins, 12 Mo., and Blair & Smith, 16 Mo., decide that the grantee holds adversely to his grantor to the extent that he is not estopped from the defence against him under the statute of limitations. Also Macklot v. Dubreuil, 9 Mo. 480. This doctrine is allowed in the case at bar. The cases of Joeckell v. Easton, 11 Mo., and Sparrow v. Kingman, 1 Oomst., 1 N. Y. 242, are cases in which the attempt of the defence was to show that there was no title in the person both sides claimed under. In this case at bar title in Lirette is not denied but affirmed by both sides, and each claim it by deeds shown. Without this defendants appear as mere trespassers, and then they are estopped, as decided in Macklot v. Easton, except as II. The transfer by plaintiff of his interest in the property sued for during the pending of this suit, did not prevent the same recovery in this action as if he had not made any transfer. To such a case as this the act of the Legislature, approved February 28, 1859, (Sess. Acts, 1859,) is applicable. It is a rule of construction of statutes that every enactment shall have a real and actual operation, and shall be presumed to have been needed for the purposes indicated in it. Actions begun under the practice act of 1855 did not need this enactment, for they already had it. (Sec. 34, art. 11, p. 1275, 2 R. C. 1855.) But actions begun before 1848 did need it to enable them to be carried on in the name of the original plaintiff, for a full recovery, after he had transferred an interest in the action. (Sec. 43, art. 13, Practice Act, p. 1293.) For these actions were governed by the practice at common law and under our ejectment act; at common law by plea in such a case as this. (Stearns on Real Actions, 201 & 206 & 7 ; § 14 of the act relative to ejectment, p. 693, R. C. 1855; same law, § 15, p. 443, R. C. 1845.) Besides, had defendants pleaded these conveyances as they should have done, plaintiff might have reinstated himself by getting a reconveyance to him. (1 Tenn. 515.)