| Conn. | Jun 21, 1819
Lead Opinion
This is an action of trespass, brought by the first society of Durham, against the defendants, for entering on a lot of land, and doing damage. At the time of the entry, the plaintiffs claimed to be in the actual possession. The jury were directed, “ if the society were in possession, that the burden of proof devolved on the defendants, to show a better title.” The legal propriety of the charge, thus far, does not admit of a question. Trespass is an action founded on possession merely ; and it is not necessary that the title should come into view. Any possession constitutes a legal right of recovery against a wrong-doer. Lambert v. Strother, Willes,
On the question, whether the plaintiffs were a new society springing into existence in 1804, or a continuation of the former society, it is not absolutely necessary to express an opinion. I will, however, briefly observe, that they were the old society organized under the statute, and continued to be the same ecclesiastical corporation, which, at first, embraced all the inhabitants of the town. The reasons, which justify this opinion, may be found in Sedgwick & al. v. Pierce, 2 Root, 431. which case I consideras sound law.
The defendants claim title through the grant, in writing, of one Thomas Bunce, executed in the year 1672, and witnessed by one witness only. Twelve years previous to this supposed grant, the law was passed requiring two witnesses to a deed, and has ever since remained in force. It has been contended, by the defendants, that the writing claimed to be a grant, was not a deed, but a transfer on the town books, authorized by the act of 1660. By that law, it was enacted, “ that a lawful record of a grant &c. in the town records &c. shall be of equal value with a written deed, provided the record, (if no other written deed be made as abovesaid,) be testified and subscribed by one witness, at least, besides the recorder.” The question, then, arises, was the grant of Bunce a deed, or a transfer on the town books ? Most unquestionably it was the former. The writing purports to be an indenture ; a term which denotes a deed of a particular description. It was signed, sealed and delivered ; facts which constitute the precise definition of a deed, and which preclude the idea of a transfer on the books, which, from its nature, admits of no delivery. And the entry of the register on the supposed grant, exhibits the light in which the transaction was viewed by him : “ Received of Capt. John Talcott, deed of land.” On this point there exists neither doubt, nor serious question.
It, however, has been insisted, that the antiquity of the deed authorizes a different application of the statute, from what it would, if it were a modern transaction. If the enquiry related to the proof of its execution, or the genuineness and authenticity of the instrument, the remark might have some foundation. But the precise question for determination, js, whether a deed with one witness only, is legally sufficient to trans
All pretence of title, then, on the part of the defendants, fails from the incompetency of Buncos deed, which constitutes an indispensible part of it.
It has been insisted, by the defendants, that the plaintiffs were estopped, by virtue of a lease, from questioning their title. Hezekidh Talcott, under whom the defendants claim, on the 4th of November 1762, made a lease of the premises to the Rev. Elizur Goodrich, during his natural life, for his use and improvement, and for the benefit of the ministry during his successor’s good pleasure. Under this instrument, Doct. Goodrich held possession until he died in the' year 1797. The death of Doct. Goodrich unquestionably terminated the estate created by the lease. Co. Litt. 62. h. s. 82. It follows, as an indisputable legal consequence, that the estoppel, if it ever existed, was then determined. Coke Litt. 47. b. Brudnell v. Roberts, 2 Wilson, 143. 4 Com. Dig. 85. 4 Bac. Air. 191. For, if a man take a lease for years of his own land, by indenture, if the lease determines, it shall be a determination of the estoppel. ' I repeat, if the estoppel ever existed; for “ a lessee by deed poll,” (and the lease was nothing more,) “ is not estopped to say, that the lessor had nothing at the time of the lease made.” Coke Litt. 47. b. Shep. Touch. 53. 4 Com. Dig. 78. 4 Bac. Abr. 189, 90. Besides, the plaintiffs were not parties to the lease, nor had they any legal interest in the land.’ The objection made is manifestly without support.
One question yet remains to be considered. It has been contended, that the plaintiffs were tenants to the defendants^ at the time of their entry. If such is the fact, they cannot, in an action of trespass, be permitted to dispute the title of their landlord. Balls v. Westwood, 2 Campb. Rep. 11. Jackson d. Low & al. v. Reynolds, 1 Caines, 444. Jackson d. Bleecker, v. Whitford, 2 Caines, 215. Jackson d. Vandeuzen & al. v. Scis
The defendants claimed, that the court should instruct the jury, that the premises, if not the defendants’ property, were vested in* the town of Durham; and that if they found the lease was executed by Hezekiah Talcott, at the request of the town, and accepted by them in 1762, their verdict must be for the defendants. This was the whole of their request. No pretence was made that the plaintiffs were their tenants, at the time the tresspass was committed. The point presented was a question of law, founded, not on the relation of landlord and tenant subsisting in 1818, the time of the defendant’s entry ; hut on the acceptance of the lease in 1762 ; an enquiry entirely aside from the above suggestion. Accordingly, the court charged the jury on the legal operation of the lease, and that, on the death of Doct. Goodrich, the Lessee, it expired. This is decisive to shew the manner in which the claim of the defendants was considered. The jury were instructed, that a tenant cannot be permitted to deny the title of his landlord ; and that the society would be bound by their acceptance of the lease, if they held the land under it, at the time of the tresspass charged. The court did not inform them, if the plaintiffs held under the defendants as tenants, in any sense, that they could not sustain their action, and for this convincing reason ; because the fact of such tenancy does not appear to» have been even intimated» If the matter contended for by
Dissenting Opinion
I dissent from the opinion of the Chief Justice merely as to the effect of the lease of He.ze.kiah Talcott, and the charge of the court relative to its termination. The acceptance of the lease, by the society, is a question of fact, and was properly left to the jury. And the court were perfectly correct in saying, “ That a tenant cannot be permitted to deny the title and authority of his landlord.” But they erred in adding, “ That the force and operation of that lease ceased and expired upon the death of Talcott the lessor, or at farthest, upon the death of the Rev. Elizur Goodrich, the lessee.” I am not about to deny the ancient doctrine of the common law, handed down to us from the Year-Books, (Bro. Abr. tit. Tenant a volunte,) and now recognized by his honour, the Chief Justice, “ That tenancy at will determines on the death of the lessor.” But we have equal authority for holding, that the relation of landlord and tenant does not cease on the expiration of the tenancy at will, but becomes a tenancy at sufferance, and the occupant liable to be treated as a tenant or disseisor, at the election of the lessor, or his heirs. Co. Litt. 57. b. Blunder v. Baugh, Cro. Car. 302. Bac. Abr. tit. Disseisin. 2 Bla. Comm. 153. Taylor d. Atkyns v. Horde, 1 Burr, 60.
The acceptance’ of the lease, by the society, was a recognition of the title of the lessor, and quoad hoc and the lessee,, was equivalent to homage and attornment at common law. Litt. sect. 85. Having consented to occupy by his permission, they could not convert their occupation into a disseisin, by which alone they could extinguish the title of the lessor, or acquire one by possession. Phill. Ev. 171. and the cases there cited. Brandt d. Walton v. Ogden, 1 Johns. Rep. 156. 1 Swift’s Syst. 338.
If the society accepted the lease, it constituted the corporation, not Doct. Goodrich, lessee. The consideration moved from them. They, not Doct. Goodrich, were cestuy que use. He was their minister.. His services and occupation
The mere act of accepting the lease is an estoppel to the society, and all claiming under them ; and it is perfectly immaterial, whether the lease were by indenture, deed poll, par-ol, or any other act inpats. “ Et issint,” saith Littleton, sect. •667. “ home poit veierun matter en ceo case, que home serra es-toppe per un matter en fait, coment que nul escripture soil fait per fait indent ou autermentd’ The same doctrine is more fully laid down, by Lord Coke, Co. Litt. 352. a. “ There be three kinds of estoppel, 1. by matter of record, viz. letters patent, fine, recoverie, pleading, Ac.; 2. by matter in writing, as by deed indented, or deed poll; 3. by matter in paiis, as by livery, by entry, by acceptance of an estate, whereof Littleton maketh a special observation, that a man shall be es-topped by matter in the country, without any writing.”
For these reasons I advise a new trial.
The court being unanimous on all the points in this case, except that arising out of the lease, my remarks Will be confined to this question.
It will be observed, that the town of Durham had been in. possession of the lot in question, for about fifty years, previous to the date of the lease; during which time, the land had been occupied chiefly by their clergyman, Doct. Chauncey, as a parsonage lot. After his decease, and the settlement of Doct. Goodrich, it was occupied by the latter, under the society, when the lease in question was given. The plaintiffs failed to shew any legal title, and did not pretend to any, except what may he derived from the possession previous to the lease from Hezekiah Talcolt. Was this possession such, as to create any title in the plaintiffs ?
It is urged by the society, that their title was perfect, and indefeasible, having been gained by a possession of more than fifty years : and it is asked, shall the acceptance of a lease, defeat a title previously acquired ? To this question, it seems proper to ask in reply, if the society had in reality acquired a title by possession, adverse to the title of Talcott, why did
The law on the subject of titles claimed by possession, is undeniable. The possession of the plaintiffs, and occupation by their pastor, gave them no title, unless that possession was adverse to the true owner. For if the society, during this period, held the land by the license, and under the permission, of the lessor, and not adversely to him, instead of gaining any title, their possession was the possession of Talcott, under whom it was enjoyed. “ As if a cottage has been built, in defiance of the lord, and a quiet possession had for twenty years, it is a good title against the lord ; but if it was built at first, with the lord’s permission, or any acknowledgment had since been made, (though it was one hundred years since,) the statute will not run against the lord; for the possession of a tenant at will, for ever so many years, is no disseisin. There must be a tortious ouster.” (Bishop v. Edwards, Bull. N. P. 104.) What stronger acknowledgment could have been made by the plaintiffs, that they had obtained no title by possession, than the acceptance of this lease, by which they virtually disclaim any title in themselves, and recognize that of the lessor ? By this acknowledgment, their previous possession is shewn not to have.been adverse, but under a license from the true owner. Should A. take possession of BJ’s land, and hold it more than fifteen years, and afterwards'accept a lease from B., by which he agreed to hold at Bds pleasure, and surrender the premises when required ; would not such an* act be conclusive evidence that the possession was never adverse, and destroy any presumption of title from that source ? The question is not, whether a lessee, by accepting a lease of land belonging to himself from a person without title, is thereby divested of his interest; but whether the acceptance of a lease does not shew, that the previous possession was by the consent of the lessor; and thus destroy the presumption of an adverse possession.
It must, therefore, be conceded, that the plaintiffs shewed no
The defendants are heirs of Hezekiah Talcott, the lessor; and consequently, if the plaintiffs could not have been permitted to deny his title, neither can they the title of the defendants.
The rule on this subject, is, that wherever one person enters upon land under the title of another, so as to constitute a tenancy, or the relation of landlord and tenant, the person so entering is not permitted to deny the title under which he has taken possession. Whether this relation of landlord and tenant, is created by indenture, deed poll, or parol demise, can make no difference in the result.. If any distinction ever did exist, in this respect, between a lease by indenture and one by deed poll, no difference can exist in the reason of the rule ; nor is any such difference recognized by any modem authority. The acceptance of a lease, and entering into possession under it, or indeed, entering into possession under parol license of the owner, is a recognition of title by the tenant, equally obligatory on him, as though such recognition had been made by the most solemn instrument known to the law. The same principle of not permitting a party to deny a fact, which he has once acknowledged, is often recognized ; indeed, is of daily occurrence. The man who treats a woman as his wife, and lives with her as such, is responsible for her debts, though they were never married. In actions against sheriffs, and their deputies, it is sufficient to shew, that they have acted in that capacity. In actions against clergymen for non-residence, the acts of the defendant as parson, and receiving the emoluments of the church, are sufficient proof of his being parson, without other evidence of title. Phil. Ev. 171. So where the renter of the tolls of a turnpike gate, brought an action against the defendant for tolls, it was held sufficient evidence of the plaintiff’s title, that the defendant had accounted with him in that capacity, though his right to the tolls was directly in issue ; and though the plaintiff had, in fact, no legal right to the tolls, his appointment having been invalid, he was held
The only qualification of the rule, if indeed that can be called so, is, that the lessee may be permitted to shew, that the lessor’s title has since expired, although he cannot be permitted to prove, what is attempted in the present case, that he never had any. England d. Syburn v. Slade, 4 Term Rep. 683. And with so much jealousy is any innovation regarded, on this salutary principle, that Lord Ellenborough, in a recent case, would not permit the tenantto shew, that the plaintiff’s title to a copy-hold had become forfeited to the lord, unless the defendant had solemnly renounced the title under which he entered, and commenced a fresh holding under another person : declaring, that the counsel “might as well remove mountains” as surmount the objection. The same principle was recognized by the superior court, in Holmes v. Kennedy, 1 Root, 77. where a mortgagor, who had leased the mortgaged premises to the defendant, recovered in equitment, though the legal title was undeniably vested in the mortgagee. It is much to be regretted, that any
It was decided by the court below, and is now insisted on by counsel, that after the expiration of the lease, at the death of Dr. Goodrich, the above rule no longer applied ; and the lessor must depend for a recovery entirely upon the strength of his own title. But whether the question arises before, or after, the expiration of the lease, can make no difference, provided the tenancy, created by the lease, continues to exist: for, during the existence of the tenancy, the rule applies, which secures the landlord against all attempts of the tenant to defeat his title. If the rule were, as contended for, it would be of little use ; it never would be applied in any action of ejectment, as this cannot be brought before the expiration of the lease ; but would only be applicable in contests for rent, between the lessor and lessee. To give any plausibility to this claim, it must be shewn, that the tenancy, or relation between landlord and tenant, ceases, as a matter of course, whenever the lease expires, although the lessee still continues in possession. From what source is such a principle derived, or where is it to be found ? I have always supposed, that the tenure by which a lessee held, after the expiration of his lease, was different from what it was before ; that it had become more frail and precarious ; that he was, indeed, a tenant at sufferance ; liable, at the election of the lessor, to be deemed a trespasser. But however feeble and precarious his rights, he is still a tenant; and it becomes his duty honestly to sur
It is urged, in the next place, that the plaintiffs were strangers to the lease ; that the term created by it was vested in Dr. Goodrich, and not in them ; that they never were the lessees of Talcott, and are not subject to the obligations, which tenants are under, not to dispute the title of the lessee.
This objection is equally unfounded as the others to which •I have adverted.
It should be observed, that previous to the lease, the use of the lot in question, was given by the plaintiffs to their pastor, Dr. Goodrich, and had he been deprived of this use by the lessor, the plaintiffs were bound to pay him an equivalent. The plaintiffs were the parties alone interested in the question of TalcoU^s title. Dr. Goodrich, therefore^ prudently declined any interference in the dispute, and referred it to the society, who were the persons in interest. I say, he referred it, not because there is positive evidence of this fact; but because such an inference is clearly deducible from the other facts before the court. The lease was never in his possession, although he was himself the lessee. On the contrary, it was received by the clerk of the society, the person who most properly represented them, and was for their exclusive benefit. We may, then, safely assert, that the lease was taken by the plaintiffs; they were the persons, who negotiated with Talcott relative to the lease, and agreed upon its terms ; but -as they had already put their clergyman in possession of the lot, and were bound to continue to him the enjoyment of it, the
The plaintiffs, therefore, are as much bound, not to dispute the lessor’s title, both during the continuance of the lease, and after its expiration, as they would have .been, had the lease been made directly to them, instead of being made to Dr. Goodrich for their benefit. The same reason for the rule exists in both cases. It does not depend on the acceptance of any formal or technical instrument; but where the holding is by a person, who enteredinto possession, recognizing another’s title, there the rule applies; and whether such acknowledgment is inferred, from a written lease, parol declaration, or in any other way, makes no difference.
It is again contended, that although the above reasoning and conclusion are correct, still a new trial ought not to be granted, because tbe real question in the case is, whether there was not an existing tenancy, which would prevent any denial of the lessor’s title. This, it is is said, was a question of fact, proper for the decision of the jury, and does not necessarily result from the acceptance of the lease ; and it is claimed, that the motion is defective on this ground.
On this point I differ from the majority of the court.
I have already shewn, that where a tenant has accepted ⅜.
New trial not to be granted.