Hunter v. Hatton

4 Gill 115

Opinion

Dorsey, J.,

delivered the opinion of this court.

The defendants in this case severed in pleading; Kendrick relying on the general issue plea of not guilty, only; and Henry D. Hatton, in addition to the general issue, having pleaded liberum tenementwm. issues were joined upon the pleas of not guilty; and to the plea of liberum tenementum, the replication contained nothing more than a general traverse of the facts contained in the plea.

On the trial, the plaintiff having proved his actual possession of the close on which the trespass is alleged to have been committed; and the defendant, Hatton, having proved a freehold interest therein, jure uxoris, the plaintiff’ offered in evidence a record of certain proceedings on the equity side of Prince George’s county court, instituted in 1837, (whilst she was sole and an infant,) for the sale of her real estate, descended to her from her father, it being the freehold in controversy in this case; and also the deed of conveyance thereof, of the trustee to the appellant.

The admissibility of this evidence being objected to, a great variety of grounds have been relied on by the appellees in support of the objection, if the testimony were admissible for none of the purposes for which it was offered, by reason of any of the causes assigned in the court below for its rejection, or which can be urged here, then must the decision of the county court in the first bill of exceptions be sustained.

The irregularities and errors in the record produced, pervade every part of it, and are almost without number; but, with one exception, they are of such a character as to detract nothing from the validity of the decrees in the cause, when thus, collaterally, by way of evidence, presented to the court. They are irregularities and errors which could only be taken advantage of by the party aggrieved by them, on a rehearing, a bill of review, or an appeal in the cause in which they are to be found. Such is the nature of the alleged errors, in appointing commissioners before the petition, of the next friend of the infant, was filed with the cleik; of the exercise of their authority by the commissioners, without the issuing of a commission to them for that purpose; that the commissioner’s were not freeholders; and the substitution of the appellant, as the purchaser of the land sold, if it be an error.

The petition filed having shewn an appropriate case for the jurisdiction of the county court, no errors or irregularities in the proceedings under it, can oust the court of its jurisdiction thus acquired; or impair, as to those who are parties and privies, the validity of its decrees, when, as in the case before us, collaterally drawn in question.

The objection to the evidence offered,, on the ground that the infant was not summoned, and made a party to the proceedings before the court, for the sale of her land, is not an objection to the jurisdiction of the court over the subject matter of the petition, but rests upon the broad principle, both of law and equity, that, unless in cases where it is otherwise provided by legislative enactment, decrees and judgments of courts of law and equity, are only binding on the parties to the proceed ings on which they are founded, and those claiming under them. As against all other persons, they are res inter alios acta), not binding upon, nor admissible in evidence against them, as adjudications of their rights.

in cases like that now under consideration, it is insisted, on the part of the appellant, that the legislature have, by the act of 1818, chap. 133, repealed the act of 1816, chap. 154, in respect to sales of infants’ real estates, when deemed beneficial t,o their interests, and provided an entirely new and independent course of proceeding, in which the making of infants parties to such proceedings is wholly dispensed with. To such a constructive repeal of the express and salutary provisions of the act of 1816, requiring infants to be made parties to proceedings for the sale of their real estates, there is nothing in the language or objects of the act of ISIS, that gives the slightest countenance. There is no repealing clause in it, and nothing in its provisions conflicting in the slightest degree with those of the former act, except it be in the mode by which evidence is to be adduced to the court, to satisfy it, that the sales which it. is called on to decree, would be to the interest, and advantage of the infants. To that extent, and no further, is it inconsistent with the act of L816, and to the extent of such inconsistency only, can it be regarded as a repeal of any of the provisions thereof.

By the act of 1816, chap. 154, the mode of proceeding to obtain a decree for the sale of the real estates of infants, when for their interest and advantage, is fully and distinctly prescribed, except as to the manner in which it is to be made appear to the court, that the sale would he “for the interest and advantage” of the infants. In that respect, the court was, consequently, left to its ordinary mode of obtaining information as to matters of fact. To change in some degree the mode of obtaining such information, and with a view to give greater protection to the rights of infants, the second section of the act of 1818, provided for the issuing of a commission to not less than three discreet and sensible men, freeholders of the county wherein the lands should lie, the sale of which is applied for. The duties of those commissioners are distinctly defined by the 2nd and 3rd sections of the act of 1818. To this extent is the act of 1818, a repeal of the act of 1816, and no further. As well now as before the act of 1818, the infant, if a resident of the State, must be summoned to answer the petition filed by his guardian, orprochein ami, and must appear by guardian to be appointed by the court, before the commission under the act of 1818 can rightfully issue. The guardian of the infant thus appealing, has a right to be heard and represented in the naming of the commissioners; in their examination of the evidence to be adduced before them; and in the action of the court upon the return of the commissioners. To deprive them of these privileges, would be entirely inconsistent with the whole policy of our legislation, which has ever evinced an anxious desire to throw around the rights of infants, to their real estates, every necessary and salutary safeguard.

If therefore the proceedings offered in evidence, had continued to preserve the same ex parte character, after the first decree of the court that they bore before it, their inadmissibility as evidence against Mary E. Hatton, or those claiming under her, could not be doubted. But the appellants, after the first decree, having, by their petition, made themselves parties in the cause, and instead of seeking, by means of a bill of review, a reversal of the decree, and a correction of the errors in the proceedings, which had taken place, recognized, ratified and confirmed what had been done, and called upon the court to require the purchaser of the land sold under the decree, within a day to be named by the court, to bring the purchase money into court, or that a resale of the property might be made. After such a proceeding, and after a ratification of the sale, and payment to him of the whole purchase money, and a conveyance of the land by the trustee to the purchaser, does it lie in the mouth of Henry D. Hatton to say, that the whole proceedings are null and void, because, at their incipiency, Mary E. Hatton was not summoned and made to appear, as directed by the act of 1816? By his petition to the court and receipt of the purchase money, he waived all objection, to the irregularity of which he now complains, and should be estopped from asserting it, either at law or in equity.

But it is alleged, that the conveyance, by the trustee to the purchaser, being several months posterior to the trespass for which the present action was brought, that although it were conceded that the appellant was rightfully possessed of the land, and entitled to hold such possession adversely to the appellee, Hatton, the owner of the freehold, yet, that in the present state of the pleadings, such right of possession in the appellant, formed no part of the issue on the plea of liberum tenementum: and, therefore, upon the issue joined thereon, no evidence could be admitted to prove such mere right of possession in the appellant; that if intended as an answer to the plea of liberum tenementum, it should have been specially pleaded by way of replication. And when regarding the title of the appellant as a mere right of possession, the objection to the admissibility of the record offered in evidence should have been sustained. Liberum tenementum is a plea interposed by a defendant, for the purpose of trying his right to the freehold; it is not an absolute denial of all colorable right to possession by the defendant.

The opinion of Lord Denman, C. J., in Doe vs. Wright, 37 Eng. C. L. R., 231, does not, as has been asserted, clearly shew, that upon the issue joined in this case on the plea of liberum tenementum, the superior possessory right of the appellant can be given in evidence. His lordship says, “it is necessary to settle what is the true meaning of liberum, tenementum,: what it admits, and what it denies. Now it is pleaded in answer to a possessory action, it must admit a possession in the plaintiff, or it would be bad, as amounting to the general issue. It must admit such a possession as would suffice to maintain the action if unanswered, or as against a wrong doer. On the other hand, it must deny a rightful possession, or it would fail as a defence to the action. In the language of pleading, it gives implied colour to the plaintiff, but asserts a freehold in the defendant, with a right to immediate possession. In an ordinary case, therefore, such a plea is answered, by replying a term of years in the plaintiff created by the defendant: which shews that the plaintiff’s possession is not merely colorable but rightful.” Such a replication admits the freehold in the defendant, and only asserts a right of possession in the plaintiff. On an issue upon such a replication, (he question to be tried by the jury would be the plaintiff’s right of possession. But what is the matter to be tried under the issue in this case, on the plea of liberum tenementum ? Whether the freehold be in the defendant? The jury, upon finding that fact, have nothing to do with the right of possession. The plaintiff’s traverse of the plea, admits the defendant’s right to the possession, should the jury find him entitled to the freehold. These views, it is believed, are sustained by Thompson vs. Hardinge, 50 Eng. C. L. R., 940, where Maulé, I, says, “(he plea of liberum tenementum, does not assert a freehold interest only, but present freehold, a right of immediate possession as against any other freehold.” And Coliman, J., who delivered the opinion of (he court in that case, said, “we are of opinion, that if the freehold is in the lord, the tenant’s interest must be of a subordinate nature, and must be replied, on the same principle on which a term of years must be pleaded in answer to a plea of liberum tenementum.” And in 1 Chit. Pl., 503, it is thus stated: “In observing upon the qualities of pleas, we shall hereafter see that a special plea in trespass, which claims for the defendant a possessory right, and yet does not give the plaintiff express color, is bad, because it amounts to the general issue, and violates the principle that a plea must deny or confess, and avoid the matter alleged in the declaration. A plea of liberum tenementum, is free from this objection, because it gives apparent color, as it is not absolutely and manifestly inconsistent therewith, that the plaintiff might have had some inferior leasehold or minor title, in respect whereof he might have had possessory right or title, or at least, possession. ’ ’ And in treating of the plea of liberum tenementum, it is stated: “thus if the defendant be in reality the freeholder, so that the plaintiff cannot with safety deny the plea, he is driven to admit its truth, and to deduce a title from the defendant, as that he demised the close to the plaintiff,” &c. And in page 595, “if the plaintiff derive title under the defendant, then he must not traverse his plea; but confessing the defendant’s title, must reply (he lease, or some other title under him, concluding with a verification. ’ ’

But although the record, apart from the deed of conveyance by the trustee, is not under the pleadings in this cause, admisble in evidence of the possessory right thereunder acquired by the plaintiff; yet when offered with such deed of conveyance, it is competent testimony to go to the jury to shew, that the freehold, in the premises in question, is not in the defendant, but in the plaintiff. It is true, the present action was instituted on the 16th day of February 1844, a few days after the commission of the trespass complained of; and that the deed of conveyance from the trustee to the appellant, bears date on the ninth day of September, of the same year: some months after both the cause and commencement of the present action. This deed, however, does not operate to pass the freehold, merely from the time of its execution; but being a conveyance under a judicial sale, upon the principles of relation, it operates retrospectively, and vests the freehold estate in the premises, in the grantee from the date of the sale; and therefore disproves and defeats the plea of liberum tenementum, by shewing that, by operation of law, at the time the trespass was committed, lire freehold was in the plaintiff. See Viner’s Abr., tit., Relation, 290, and Jackson vs. Ramsay, 3 Cowen, 75, and the cases therein referred to.

It hence follows that the county court erred, in refusing to permit the record and deed offered in evidence, in the first bill of exceptions, to be read to the jury.

Tlio court below did not err in refusing to permit the plaintiff, as against Henry D. Hatton, to give to the jury the testimony offered in the second bill of exceptions. The issue to be tried by the jury was, whether he, Hatton, had the freehold estate in the land in controversy. The testimony rejected, had no tendency to prove or disprove that fact. No such oral proof could transfer an estate in freehold, upon the plaintiff. It was therefore, as against Hatton, inadmissible under the issues-m the cause. If the defendant, Hatton, had been the plaintiff in this suit, having sued Hunter, as a trespasser by reason of his entry on the plaintiff’s freehold, under the circumstances in which it was made, as shown by the testimony offered; the court would have held the, plaintiff estopped, on the ground of fraud, from denying (lie legality of the defendants entry, and from any recovery of damages on account thereof.

In what has been said of the decisions of the county court on the admissibility of the testimony offered in the two bills of exceptions, the remarks made were intended only to apply to Henry D. Hatton, and in reference to the issue joined upon his plea of liberum tenementum. As respects the defendant, Kendrick, whose only defence to the action was non cul, the testimony offered and rejected in both bills of exceptions ought to have been admitted. The plaintiff, to entitle himself to recover, was not bound to rely upon the mere fact of his possession, but might prove the legality thereof and his title to the premises. The damages which a jury would give to a plaintiff, a mere possessor, who exhibited neither evidence of title or right to possession, would, it is presumed, be very different in amount from those which would be given to a plaintiff whose possession was shewn to be rightful, his title undeniable.

There being, it is conceived, error in the decisions of the county court in both bills of exceptions, their judgment is reversed and a procedendo awarded.

JUDGMENT REVERSED AND PROCEDENDO AWARDED.