Buntin v. Doe

1 Blackf. 26, 1818 Ind. LEXIS 10

• Court: Indiana Supreme Court
• Decided: November 13, 1818
• Status: Published

Opinion

Scott, J.

It is admitted by both parties that Duchane oh; tained possession by the consent of Bazadone-, but, on the one hand it is contended, that Duchane had no higher interest than an estate at will, which terminated by the death of Bazadone; and on the other hand it is insisted, .that he had an estate for life, defeasible on a condition subsequent; or at least an estate at will, differing from ordinary estates at will, by the express stipulation of the parties, and to continue till terminated by Bazadone himself or his heirs. It is unnecessary at present to investigate this question. For whether Duchane was tenant for life on condition, or tenant at will; and whether his estate is at an end at Bazadone’s death, or continues until terminated by the heirs at law, are points which can, at present, have no weight in deciding this case

(1).

In the argument of this cause, much importance was attached to the termination of Duckane’s estate by the death of Bazaclone; but we do not, upon examination, find a word in the record before us, which goes to prove that Bazadone is dead. It is true, there is comprised in the bill of exceptions, an exhibit which shows that the appellants, calling themselves the executors of Lawrence Bazadone, brought forcible detainer for the property now in question.. But their claiming as the executors of Bazadone, no more proves that they were such, than their claiming in any other right would prove that they possessed that right; The only evidence in the record from which we might presume the death of Bazadone, is the existence of persons calling them-' selves his executors. But it would be going a great length indeed, first to presume that men are executors, because they call themselves such, and from that circumstance presume the death of the alleged testator, and the consequent determination of an estate at will; and on this complication of presumptions, to reverse the judgment of a Court, solemnly rendered upon the verdict of a jury. By the consent of Bazadone, whose right is not called in question, Duchane was in possession of the premises. He was at least a tenant at will, and could support an action of ejectment. Runn. 23, 24. 2 Bac. Abr. 423. Duchane has done so, and it is clear that none of the objections which we have noticed, is sufficient to justify this Court in reversing the proceedings.

There was one. other point made in the argument, which stands on a different foot. A record of forcible detainer brought before two justices of the peace of Knox county, is set up as a bar to this action. Should this principle be. recognized, it would lead to consequences, to which its advocates would not be willing to subscribe. If the writ of forcible detainer, is a bar to an action of ejectment, it would for the same reason, bar a writ of right; and thus the hasty act of a jury,, and two justices of thfj peace, without any other law character to aid the investigation, would forever bar the highest judicial tribunal, from deciding (he right of the most valuable property (2).

Tabbs, for the appellants. Dewey, for the appellee.

Blackford, J.,

gave no opinion, having been engaged ag counsel in the cause.

Per Curiam.

The judgment is affirmed, with costs,

The old tenancies at will are now generally considered as tenancies from year to year; and it has been held, that these latter tenancies are not determined by the death of the lessor. Maddon v. White, 2 T . R. 159. Nor of the lessee, Doe v. Dorter, 3 T. R. 13. Upon the death of the lessor in these cases, the tenant cannot be ejected without half a year’s notice to quit. Maddon v. White, supra. So, where the tenant dies, bis personal representatives are also entitled to such notice. Doe v. Shore, supra. Adams on Ejectment, 119, 120.

The plaintiff, in a proceeding of forcible entry and detainer, bad judg. Bient against him, and then sued the same party in ejectment: Held, that the record of the judgment, in the forcible entry and detainer was no bar. Mattox v. Helm, 5 Littell, 185. Neither is n recovery in ejectment final between the parties; but upon the application of the defendant, the proceedings in a subsequent ejectment will be stayed, until the costs of the previous one, upon the. same title, are paid. Adams on Ejectment, 319. 2 Arch. Pr. 189.