5 Md. 404 | Md. | 1853
delivered the opinion of this court.
The bill of exceptions presents questions arising upon two prayers asked by the plaintiff, and upon objections made by him to the admissibility of the testimony of Harris and Heighe, two witnesses on the part of the defendants. But the objection to the testimony of Heighe has been waived; and we will proceed, first, to consider the questions presented by the prayers.
They both assert the principle, that in an ejectment suit the defendant is estopped from denying the title of the lessor of the plaintiff, where the defendant came into possession of the premises as tenant of a party' who has convej'ed the reversion to the lessor of the plaintiff. The counsel for the appellees concedes, that as between lessor and lessee the latter cannot deny the title of the former, but he insists that the doctrine of estoppel does not prevent a tenant from disputing the validity of a title which the lessor has attempted to convey, or transfer, to another party, who has instituted an action to recover possession of the premises from the tenant. To a certain extent the appellees’ counsel is correct. For if the deed or instrument intended to convey the reversion should be defectively executed, or in case the original lessor, subsequent to the lease, should convey all his right in the estate, and then execute a second conveyance for the same, in favor of another person y the title claimed under the second conveyance, or that under
In Doe on Dem., Higginbotham vs. Barton, 11 Adol. & Ellis, 307, in 39 Eng. C. L. Rep., 99, the rule is said to be fully established, “that the tenant caftnot deny that the person by whom he was let into possession had title at that timé, but he may show that such title is determined.”
Here the' effort is not made to prove the termination of Mrs. Hinchtnan’s estate or title subsequent to the lease, but to show that prior to it she had been legally married to Harris; who was still living. The effect of which proof, if admissible, would be to establish, that at the date of the lease she had no authority to make it. Now as it is manifest from the authorities a tenant cannot resort to' such proof for such a purpose, it would seem, necessarily, to follow, that the same proof could not be used in defence to show a want of authority in Mrs. Hinchman to convey her title to the lessor of the plaintiff. The doctrine of estoppel, as between lessor and lessee, would avail nothing in ejectment if the inability of the latter to impeach the title does not apply between her and the party
There is evidence tending to prove that Mrs. Kincaid was the tenant of Mrs. Hinchman prior to the deed from Mr. and Mrs. Hinchman, and it does not appear that the tenancy of Mrs. Kincaid had ceased to exist when this deed was made. If, therefore, she held under the lease when the deed was made, she could not deny the right of Mrs. Hinchman to make the conveyance, and by that instrument the relation of landlord and tenant was established between the grantee in the deed and Mrs. Kincaid. That this is the necessary consequence of the conveyance may be seen by reference to Archb. Law of Landlord and Tenant, 69, 70, in 53 Law Lib., 86. And since the statute of 4 Anne, ch. 16, sec. 9, no attornment by the tenant is necessary. See 20 Eng. Law & Eq. Rep., 94.
In Willison vs. Watkins, the father of the defendant below was the tenant of Bordeaux in 1792. Under a sheriff’s sale in 1803, the plaintiff below purchased the title of Bordeaux, and in the suit, claimed to stand in the relation of landlord to the defendant, who was the son of the original tenant. Limitations was the defence relied upon. And although the proof clearly established an adverse holding for a much longer time than the statute of South Carolina required, yet the plaintiff succeeded below; the judge having instructed the jury, that when the proof showed a tenancy had once existed, the tenancy must not only be abandoned, but possession given up, before an adverse possession could be alleged. This decision.
By the first prayer the court were asked to instruct the jury, that “if from the evidence they should find the property in dispute was rented to Mrs. Kincaid, in the manner stated in the proof, and under that renting she entered and took possession of the whole property, for which this action was instituted, then the said defendants are estopped from setting up any outstanding title in said defendants, or any other person adverse to that of the plaintiff. ” It is here assumed that both defendants were prevented from denying the plaintiff’s title; provided, the jury should believe the property was rented to Mrs. Kincaid, and that she took possession, under the lease; without submitting to the jury any inquiry as to how or in what manner Mrs. Murdock became possessed of part of the premises. Supposing that in regard to Mrs. Kincaid the prayer may be correct, still the court could not say that the facts staled, if believed by the jury, would estop Mrs. Murdoch from disputing the title of the plaintiff, because it would be assuming that she did not come into possession in any other way than under Mrs. Kincaid, without leaving the jury to find whether such was the case. And this the court could not do, no matter how full and ample the proof to justify such an inference or conclusion.
The second prayer is, that “if the jury believed Mrs. Hinchman was in peaceable and quiet possession of the property in dispute, and so continued from the year 1820 until it was rented by her to the defendant, Mrs. Kincaid, who accepted the same, and entered- and took possession of it as the tenant of Mrs. Hinchman, and that Mrs. Kincaid remained in
There are two propositions presented in this prayer. The first is, that if the jury ascertain the. facts submitted for their consideration to be true, then Mrs. Kincaid could not set up title in herself or any one else, to defeat the claim of the plaintiff. The second is, that if those facts are believed by the jury, then, in point of fact, there is no evidence of title in Mrs. Kincaid, or any other person, which cam legally bar the right of the plaintiff. In other words, the meaning of (he instruction, as we understand it, is, that if the relation of landLady and tenant existed, between Mrs. Hinchman and Mrs. Kincaid, the latter cquld not impeach the title of the lessor of the plaintiff, by proving title adverse to his. And that in fact there is no proof of any adverse title, which the law will permit to be used as a bar tq this action; provided the jury believed the facts stated in the beginning of the prayer.
The doctrine of estoppel as relied upon in the first part of this prayer is clearly confined to Mrs. Kincaid alone; but the same cannot be said of the latter, clause. When it says, “nor is there any evidence in this- case, in point of fact, to show any such title in said defendant, or any third party, as can bar the right of recovery.;” &c., it denies not only to Airs, Kincaid, but to Mrs. Murdoch also, the authority tp set up the title of a third party in opposition to the plaintiff’s claim. And, therefore, the reasons assigned for affirming the.rejection of the first prayer apply with equal force in bringing us to the conclusion that the court below were right in refusing the second also.
But admitting the reasons already assigned may not be sufficient to justify or sustain the rejection of the prayers, still they ought not to have been granted, because they ask the court to instruct the jury that if they believe Mrs. Kincaid was the tenant of Mrs. Hinchman, then the doctrine of estoppel prevents a denial of the title of the lessor of the plaintiff;
The decision below under which Harris was permitted to testify in regard to the marriage between himself and Mrs. Hinchman has been objected to on several grounds. In the first place it is said the relation of husband and wife rendered him incompetent; and that whether a wife is or is not a party to the suit, if there is evidence in regard to her being a married woman, and an effort is made to prove a former marriage, the alleged former husband is not a competent witness to sustain the allegation; because he would be proving the guilty conduct of his own wife, if permitted to testify. This view is sustained by the case of Rex vs. Cliviger, 2 Term Rep., 263, where it was held that a wife could not in any case give evidence, even tending to criminate her husband. But the authority of that decision was very much shaken by Rex vs. All Saints, 6 Maule & Selw., 194, where Lord Ellenborough thought the rule in Rex vs. Cliviger had been laid down ‘ ‘somewhat too largely.” Both those cases are referred to in Rex vs. Bathwick, 2 B. & Ald., 639, in 22 Eng., C. L. Rep., 152. There, upon a question of settlement, the husband was called,
In Griffin vs. Brown, 2 Pick., 308, C. J. Parker considers the, cases to which he refers as establishing the principle, that a wife may be admitted as a witness, to excuse a party from a supposed liability, for which he is sued, although her testimony may be calculated, to charge her husband upon the same claim, in a subsequent action against him. And the reason assigned is, that the verdict in the first action cannot be used as evidence in the second; so that notwithstanding her testimony might show her husband’s liability, yet he could not be prejudiced by it. On this subject Mr. Greenleaf' in his Treatise on Evidence, vol. 1, sec. 342, says, “but though the husband and wife are not admissible as witnesses against each other, where either is directly interested in the event of the proceeding, whether civil or criminal; yet, in collateral proceedings, not immediately affecting their mutual interests, their evidence is receivable, notwithstanding it may tend to criminate, or may contradict the other, or may subject the other to a legal demand.” If therefore the concurring opinions of Lord Ellen-borough, Lord Tenterden, C. J. Parker and Mr. Greenleaf, may be taken as establishing the correctness of a legal proposition, it must be considered as a well settled general rule, that in collateral matters, where the husband is not directly interested in the event of a civil action, or directly charged in a criminal proceeding, the testimony of the wife may be admitted, although it may tend to criminate him, or to render
The testimony of Harris is also objected to because it must necessarily tend to advance his own interest; the object being to prove the former marriage of Mrs. Hinchman, and consequently to establish her incapacity to execute the deed purporting to convey title to the lessor of the plaintiff. If it can be shown that he has no title, the defendants must have a verdict in their favor. Should that be the result, and Harris, as the legitimate husband of Mrs. Hinchman, should institute a suit to recover possession of the premises, it is supposed the testimony given by him in this suit, at the instance of the defendants, would be admissible evidence for him in support of his own claim to a verdict. And although in the subsequent action the veidict in this could not be given in evidence by him, yet the testimony proposed to be given by him, and which was admitted, is calculated to produce a result in which he has a direct interest. But if his right to recover is based upon the first marriage, we do not perceive how he would have a better chance of success against the present defendants than against the lessor of the plaintiff. The latter claims under a deed from Mr. and Mrs. Hinchman, as husband and wife, and if the former marriage is once established bis title is gone. Whilst it will be seen that the defendants do not pror fess to claim under Mrs. Hinchman, but make every effort to deny the title which the plaintiff claims under her. They resist the attempt on the part of the plaintiff to establish the relation of landlord and tenant, for the purpose of introducing the doctrine of estoppel in his favor. And even conceding that proof offered in this suit, by the defendants could be used against them in a subsequent one by Harris, yet if the lease from Mrs. Hinchman to Mrs. Kincaid should there be proved by the witness here relied upon for that purpose, so soon as Harris introduces his present testimony to establish the former
Again, if the present testimony of Harris could be used by him in a future suit against the defendants,- it could not possibly have any more beneficial effect in his favor than would the simple offer of the defendants to prove the marriage by him. That offer as clearly established their admission of, and reliance upon, the marriage, as his statement of the matter under oath could, because the testimony, if admissible at all, could only be so as their admission. We therefore do not see how his testimony can so directly and so materially promote his own interest as to render Harris an incompetent witness on the ground of interest. In Crawford vs. Brooke, 4 Gill, 218, whilst considering the question whether a witness alleged to be interested was properly permitted to testify, the court say: "It is now established,-that the only cases in which, for this cause, a witness is incompetent, are, where he has a legal, certain and immediate interest in the event of the suit itself, or in the record, as an instrument of evidence in support of his own claims in a subsequent action.” It cannot be said that the present record could be used as an instrument of evidence for' Harris in a future suit; and we do not think he comes wit hire the other branch of the rule just stated.
A third objection to the propriety of receiving the testimony of Harris has been urged in argument. This is the principle of estoppel as between landlord and tenant. It is contended that proof of the former marriage cannot be given, because the very object of it is to show Mrs. Hinchman had no right to make the conveyance to Funk, and consequently none to make the lease to Mrs. Kincaid.-
In ejectment (he title of the plaintiff, as a general rule, is always in issue, and any testimony impeaching that title is relevant and proper, if not inconsistent with some other principle of evidence. An exception to this rule is, that a tenant
According to the case of Trasher vs. Everhart, when the preliminary proof “is clear and uncontradicted,” the court will decide the question of admissibility, but if doubtful, it is proper to submit the matter to the jury and let them decide the doubt, when such doubt depends upon a question of fact. We do not mean to say that every slight degree of doubt created by preliminary proof, or other proof in the cause upon which the question of admissibility may depend, will require the court to decline deciding that question and leave the doubt to be settled by the jury. But in a case like the one before us, it would be intruding too far upon the rights of the jury
Other testimony than that of Harris was given for the purpose of proving the former marriage, but not having been excepted to, it is not before us.
We think the court were right in refusing both prayers for the reasons stated, but in our opinion they committed an error by admitting the testimony of Harris without giving the jury any instruction on the subject, and consequently the judgment must be reversed.
Judgment reversed and procedendo awarded.