Morris v. Wheat

11 App. D.C. 201, 1897 U.S. App. LEXIS 3120

• Court: Court of Appeals for the D.C. Circuit
• Decided: June 7, 1897
• Docket: No. 651
• Status: Published

Opinion

Mr. Justice Shepard

delivered the opinion of the Court:

1. This is the second appeal that has been prosecuted by the defendant, Louisa Morris, in an action of ejectment from an adverse judgment therein.

The suit was brought by three plaintiffs, the appellees, Milton M. Wheat and Jane E. Baker, and one George S. Parker, each claiming an undivided interest of one-third in' the premises, and resulted on the first trial in a judgment in their favor. In obedience to the established practice in ejectment, that, “if one of several plaintiffs have no title, the coplaintiffs cannot recover,” that judgment was reversed because of the want of title in said plaintiff, George S. Parker. He was held to be estopped by the recitals of a former deed, under which defendant claimed, from his grantor, John A. Dixon. Morris v. Wheat, 8 App. D. C. 379.

After the cases had been remanded for new trial, the court, on application of the plaintiffs, granted leave to amend by striking out the name of said Parker and changing the declaration so as to continue the suit in the name of said Wheat and Baker for the recovery of two-thirds of the premises. The defendant objected to the action of the court and reserved an exception which is the foundation of the first assignment of error.

2. If the striking out of the name of one of the plaintiffs in an action of ejectment is an amendment within the contemplation of the statute (R. S., Sec. 954), there is an end of the question; for it is well settled that the granting of leave to amend is a matter of discretion in the trial courts, the exercise of which is not subject of review on appeal. Wright v. Hollingsworth, 1 Pet. 165, 168; Chapman v. Barney, 129 U. S. 677, 681. The contention of appellant, that it is not an amendment within the purview of that section of the judiciary act, is founded on a strict and narrow construction in which we cannot concur.

In view of the mischief for which the act provided a simple and much needed remedy, its interpretation ought to be as broad and liberal as its terms will reasonably permit. “In the administration of justice, matter of form not absolutely subjected to authority may well yield to the substantial purposes of justice.” Minor v. Mechanics’ Bank, 1 Pet. 46, 80.

Although the particular point as here raised has never been passed upon by the Supreme Court of the United States, we think it comes clearly within the rule of many of its decisions, a few of which only will be cited. In actions of ejectment amendments have been permitted, adding a new count alleging a demise by a lessor not named in the old counts (Wright v. Hollingsworth, 1 Pet. 165); extending the term. (Walden v. Craig, 9 Wheat. 576); and introducing a new plaintiff in the person of a husband of one of the plaintiffs (Chirac v. Reinicker, 11 Wheat. 280, 302). In Chapman v. Barney, 129 U. S. 677, which was an action of assumpsit, the substitution of the sole plaintiff by another was declared an amendment within the discretion of the trial court.

3. The next point raised by the appellant is in respect of an alleged defect in the title of George 0. Dixon, under whom plaintiffs claim by inheritance; but before its consideration, we must determine whether she was not estopped to impeach the validity of that title. The title of George 0. Dixon was by conveyance from certain trustees appointed in a proceeding in equity to sell and convey certain lands, including the premises in controversy, about June 12,1862. The title was attacked for want of jurisdiction in the court over the person of a nonresident infant. In the view that we have taken of the question of the estoppel, it is not necessary to set out the proceedings in court preliminary to the conveyance. For the purposes of the argument the contention of the appellant may be conceded to be sound.

It is admitted in the record that George 0. Dixon paid the purchase money, received the deed, and entered into possession. He subsequently delivered the possession to William H. Parker under a lease for a term not stated. George 0. Dixon died shortly afterwards. On August 4, 1864, one James F. Holliday, reciting himself “agent and attorney of John A. Dixon, of Alexandria, Virginia, administrator of George 0. Dixon, deceased,” renewed the lease to William H. Parker for ten years, who agreed to pay rent at the rate of $60 per annum, and to pay all thxes and charges against the property. A right of renewal for ten years more was given to said Parker, as well as an option to purchase-This instrument was executed by both Parker and Holliday in the presence of subscribing witnesses. George 0. Dixon died in Alexandria, Virginia, in 1862, leaving a will making John A. Dixon executor, and after devising certain parts of his estate, leaving the residue to the infant children of John A. Dixon. George 0. Dixon really died intestate as to the premises in controversy, because his will was not attested in the manner required by the law of the District of Columbia. He left three heirs-at-law, namely, his brother, John A. Dixon, a sister (the plaintiff, Mrs. Baker), and another sister, the mother of the plaintiff Wheat.

The sisters appear not to have been aware of the ownership of the land by George 0. Dixon, much less their inherited rights therein. John A. Dixon and William H* Parker at that time seem to have regarded the title as being in the infant children of said John A. Dixon under the will aforesaid. Parker remained in possession under his lease, but to whom he paid rent does not appear.

In March, 1869, Louisa Morris and her husband, Patrick, who afterwards died, entered into possession under a contract of purchase from said William H. Parker, the terms of which do not appear. On May 11, 1871, John A. Dixon made a conveyance of the premises to Henry A. Parker, a son of William H. Parker, and at the latter’s request. This deed recited that the title was in the infant children of the grantor, and that he was their guardian. No authority of any court was pretended for this conveyance. On the same day William H. Parker conveyed to Henry A. Parker, and assigned to him the said lease, which by its terms continued until August 1, 1874, subject to renewal. The character of the conveyance from William H. Parker to Henry A. Parker is not given in the bill of exceptions.

The bill of exceptions also states that a conveyance was made by Henry A. Parker to Patrick and Louisa Morris; but the instrument does not appear, and its terms and date are unknown.

It further appears that on March 10, 1886, the infant children of John A. Dixon, having become of age, made a deed upon a consideration of $10 to Henry A. Parker; and it was on the same day that said John A. Dixon, as one of the heirs of George 0. Dixon, made the conveyance to George S. Parker, which was held inoperative on the former appeal. Although the transactions between William H. Parker and Henry A. Parker and Patrick and Louisa Morris are left in much obscurity by the bill of exceptions, we think it is perfectly clear that whatever title the appellant has had or claimed is under George 0. Dixon, who is the common source for all the parties. Under a familiar principle, she cannot now be heard to deny that he had a valid title. Anderson v. Reid, 10 App. D. C. 426, and cases therein cited.

4. The next question is whether the court erred in refusing to submit to the jury the evidence offered by defendant in support of her claim of adverse possession. Defendant claimed adverse possession from March, 1869, though it appears that her entry was then under an executory contract of some kind with William H. Parker; and it seems that her conveyance from Henry A. Parker, the character and date of which do not appear in the record, could not have been made until on or after May 10,1871, which is the date of William H. Parker’s conveyance to him. Several interesting questions have been presented and argued touching the disabilities of coverture under which the two sisters of George 0. Dixon labored at the time of his decease. These we do not consider it necessary to decide. For, assuming that the possession commenced in 1869, and that there was nothing to prevent the running of the statute, if it then began, we are of opinion that there was no error in refusing defendant’s prayer for instruction. Notwithstanding the recitals of the lease contract made by Holliday, “agent and attorney,” with William H. Parker, the same inured to the benefit of the heirs-at-law of George 0. Dixon, deceased, as a renewal or continuation of the former tenancy and possession thereunder ; at the least, there is nothing to warrant its being regarded as a repudiation of that lease.

This lease, which still had several years to run at the time of the appellant’s acquirement of an interest in the premises, contained a covenant for renewal and for purchase at the option of the tenant, William H. Parker, and there is nothing in the evidence concerning his contracts for conveyance with Louisa Morris and his son, Henry A. Parker, that is inconsistent with his or their continued recognition of the title of George 0. Dixon or his heirs. The assignment of the lease to Henry A. Parker at the time of the conveyance to him is an unequivocal act of recognition by both. The attempted conveyance by John A. Dixon, as guardian, to Henry A. Parker, was made on the same day, and appears to have been a part of the transaction between the Parkers, father and son; and both were made more than two years after the executory contract between William H. Parker and Louisa Morris under which lior possession began. Holding under the lease from George 0. Dixon, William H. Parker nor his assigns could dispute the title of his lessor or his heirs, either by setting up title in themselves or in a third person during the existence of the tenancy. Willison v. Watkins, 3 Pet. 36, 47, 51; Barr v. Gratz, 4 Wheat. 213, 222; Woodward v. Brown, 13 Pet. 1, 4.

The tenant may, however, without actual surrender to his landlord, remain in possession, assert title in himself, and lay a foundation for the completion of a title by adverse possession, for a sufficient period.

But whilst this right exists, it is subject to certain plain and essential conditions. As was said by Mr. Justice Nelson: “The trustee may disavow and disclaim his trust; the tenant, the title of his landlord after the expiration of his lease; the vendee, the title of his vendor after breach of contract; and the tenant in common the title of his co-tenant; and drive the respective owners and claimants to their action within the period of the statute of limitations. The only distinction between this class of cases and those in which no privity between the parties existed when the possession commenced is in the degree of proof required to establish the adverse character of the possession. As that was originally taken and held in subserviency to the title of the real owner, a clear, positive and continued disclaimer and disavowal of the title, and assertion of an adverse right, and to be brought home to the party, are indispensable before any foundation can be laid for the operation of the statute. Otherwise the grossest injustice might be practiced; for, without such notice, he might well rely upon the fiduciary relations under which the possession was originally taken and held, and upon the subqrdinate character of the possession as the the legal result of those relations.” Zeller’s Lessee v. Eckert, 4 How. 289, 295.

It is very clear that no actual notice of an adverse claim or possession was given to the heirs of George 0. Dixon, represented in this suit. As we have before said, there was nothing in the evidence of the transaction of William H. Parker and his assigns necessarily inconsistent with the relation of tenant. There is no evidence whatever of such acts of open, adverse claim of title and possession as might be sufficient in law to put the heirs upon notice. Ricard v. Williams, 7 Wheat. 59, 106, et seq.; Bradstreet v. Huntington, 5 Pet. 402, 445; Speidel v. Henrici, 120 U. S. 377, 386.

Nor is there anything to strengthen the defendant’s case in the situation by which the conveyance from John A. Dixon to her grantor, Henry A. Parker, is made to inure to her benefit. All that is effected thereby is the acquirement of the title of one of the three tenants in common as heirs at law of George 0. Dixon. She did not enter under that deed. Her possessions then existed in subordination to the lease which had still three years to run.

Unquestionably, one tenant in common may oust his co-tenants and claim the title to the whole adversely. But to constitute an adverse possession in such a case the evidence must show some distinct facts tending to bring notice of the same home to the cotenants. Barr v. Gratz, 4 Wheat. 213; McClung v. Ross, 5 Wheat. 116, 124; Bradstreet v. Huntington, 5 Pet. 402, 440; Speidel v. Henrici, 120 U. S. 377, 386.

5. The last assignment of error is on an exception taken to the refusal by the court of a special instruction limiting the assessment of damages for mesne profits to a period commencing three years before the date of the amended declaration. The yearly value was’admitted to be $180, and at plaintiff’s request the jury were instructed to return a verdict for two-thirds of that sum per year for eight years.

The original declaration was filed something more than eight years before the trial. Defendant’s prayer for instruction was based on the assumption that the amendment of the declaration, striking out the name of one of the three original plaintiffs, must be regarded as equivalent to the commencement of a new suit. This is an extremely technical view of the effect of that amendment, and in the absence of controlling authority, we must decline to accept it. The amendment made no change in the cause of action. The two remaining plaintiffs asserted the same title and prayed the same recovery as in the original declaration; nothing more and nothing less. Defendant was deprived of no defence that she had before. There was nothing to alter her position in the case or to require additional evidence or preparation for the trial. She could not be prejudiced in any particular.

It is an entirely different case from that of an amendment adding a new count in ejectment on a demise from a new party asserting a different title, as in Sicard v. Davis, 6 Pet. 124, or from that in Johnson v. District of Columbia, 1 Mackey, 427, wherein no cause of action at all had been alleged before the amended declaration was filed. It would be impossible to lay down, in one case, a fixed rule by which the effect of an amendment, in this respect, may be determined with accuracy in all others. Each case must turn upon its own special circumstances. Whilst amendments making substantial changes in the cause of action and putting parties upon new lines of defence not necessary or pertinent to the case made in the original pleading ought generally to be regarded as equivalent to .the institution of new suits, still the rule should never be so strictly applied as to work what might be palpable injustice, in the absence of negligence on the part of the plaintiffs.

Finding no error in the record, the judgment will be affirmed, with costs to the appellees.

Affirmed.