In an action of ejectment, if the plaintiff count upon a lease
to himself from a person whom the evidence shows to have been dead
at the time, it is bad.
It is a settled rule at common law that where a right of reentry
is claimed on the ground of forfeiture for nonpayment of rent,
there must be proof of a demand of the precise sum due at a
convenient time before sunset, on the day when the rent is due,
upon the land, in the most notorious place of it, even though there
be no person on the land to pay.
In proceeding under the statute of 4 Geo. 2 it must be alleged
and proved that there was no sufficient distress upon the premises
on some day or period between the time at which the rent fell due
and the day of the demise, and if the time when, according to the
proofs, there was not a sufficient distress upon the premises be
subsequent to the day of the demise, it is bad.
The case was this:
In 1807, William Prout, living in the City of Washington and
being the owner in fee of a lot in said city, made a lease of a
part of it to Joseph B. Parsons for the term of ninety-nine years,
renewable forever. It was in the usual form and contained the usual
covenants (with the exception of the one hereafter
Page 42 U. S. 212
mentioned), reserving an annual rent of thirty-five dollars,
payable on 13 March, clear of all taxes, charges, rates, or
assessments whatsoever. There was a covenant that if the said
yearly rent of thirty-five dollars should be unpaid at the
expiration of sixty days after it was due, and no sufficient
effects could be found upon the premises, whereon to levy the same,
it should be lawful for Prout, his heirs or assigns, to reenter and
take possession of the leased premises.
The special covenant was to this effect, that if at any time or
times thereafter, and before the expiration of the lease, Parsons,
or his heirs, executors &c., should pay to the said Prout, his
heirs, executors, administrators or assigns, the sum of $196.87 1/2
over and above all rents for said piece of ground that might then
be in arrear, that then the said Prout, his heirs, &c., should
make and execute a good and sufficient deed of release in fee
simple to the said Parsons, his heirs, &c., for the said piece
or portion of ground.
In 1813, Parsons died, having occupied the leased property from
the time that the lease was made.
In 1815, and prior thereto, the widow of Parsons, who continued
in possession of the property, paid to Prout $100 on account of the
purchase of the fee simple in the said lot.
In 1823, Prout died; Mary Bradley, one of the lessors of the
plaintiff, being one of his surviving children. After Prout's
death, the widow of Parsons gave possession of the property in
question to Mary Ann Connor, the defendant in the ejectment, who
for some time paid the taxes as they accrued, and also paid various
sums of money on account of the rent due, and in arrear, and of the
accruing rent.
In 1831, a partition of the estate of Prout was made, according
to law, among his children, and the leased premises in question
were assigned to Mary Bradley. After the partition, Mary Ann Connor
made payments on account of the rent to Mary Bradley, and also paid
the taxes to the corporation of the City of Washington, up to the
year 1831, but omitted to pay the taxes for the years 1831, 1832,
1833, and 1834, amounting in all to $44.33 cents,
In 1835, George Adams, the collector of taxes for the
corporation of Washington, after having advertised the property,
set up to sale the leasehold interest in the said premises, but
receiving
Page 42 U. S. 213
no bid for the same, immediately thereafter exposed to public
sale the fee simple interest and estate, which was purchased by one
Allison Nailor, for the sum of $49.83 cents, being the amount of
taxes due thereon, together with the expense of selling the same.
The property had been assessed on the books of the corporation of
Washington, from 1813 to 1838, in the name of Joseph B. Parsons'
heirs.
On 2 June, 1838, the corporation of Washington made a deed of
the premises to Allison Nailor, and, in November following, he
conveyed them to Mary Ann Connor.
In November, 1838, Henry Bradley and Mary his wife brought an
ejectment against Mary Ann Connor, counting on two demises; one
from William Prout, on 1 January, 1827, and the other from Henry
Bradley and Mary his wife, on 1 January, 1838.
The judgment of the court below was for the plaintiffs. Two
bills of exceptions were taken, the first of which it is only
necessary to notice, and which is stated at large in the opinion of
the Court.
Page 42 U. S. 214
MR. JUSTICE DANIEL delivered the opinion of the Court.
At the trial below, the jury having returned a verdict for the
plaintiff, the court thereupon adjudged to him his unexpired term
in the premises claimed. To the rulings of the court in the
progress of the trial two bills of exceptions were sealed at the
instance of the defendant. The second of these bills is adverted to
merely as making a part of the history of this cause. The questions
thereby presented as growing out of the assessment of taxes on lots
in the City of Washington, and the modes of proceeding by the
corporate authorities to subject the real property of delinquents
to sale for arrears of taxes, under the acts of Congress applicable
to such subjects, are withdrawn from the action of the court by
previous and more material considerations claiming its attention
under the first bill of exceptions, and which, in the view of the
court, must determine the rights of these parties in their present
attitude here. This bill of exceptions is in the following
words:
"Defendant's first exception. -- On this trial of this cause,
the plaintiffs, to maintain the issue on their part joined, gave in
evidence a lease from William Prout to Joseph B. Parsons, as
follows (copied in page 18), and proved that the premises in
question are the same as those mentioned in said lease; they
farther gave evidence, to show that Joseph B. Parsons entered into
the
Page 42 U. S. 215
possession of the said premises under the said lease, and
continued to occupy them until his death, which happened some time
in the year 1813; that he left a widow and seven children, of whom
the defendant is one; that his widow was left in the possession
thereof at his death, and remained and continued in said possession
until the death of said William Prout, which happened some time in
the year 1823; that previous to the year 1815, she paid to the said
William Prout, $100 on account of the purchase of the fee simple of
the said lot; that some time after the death of the said William
Prout, the said widow of Joseph B. Parsons abandoned the possession
of the said premises to the defendant, and the defendant took
possession, thereon claiming to hold the leasehold interest, with
the full knowledge and consent of said widow, and of the children
of said Joseph B. Parsons; that the defendant thenceforth paid the
taxes on the said lot under the said lease, and, from time to time,
paid various sums of money on account of the rent due and in arrear
under the said lease, and of the accruing rent; that, as appears by
the within admission of the defendant filed in this cause, marked
A, and as follows (copied in page 14), a partition of the estate of
said William Prout was made, in March, 1831, among his children;
that by that partition, the said premises, and the reversionary
interest in the land described in the said lease, was assigned Mary
Bradley, one of the plaintiffs, in fee simple; that the square in
which the said demised premises are situated, was divided into
lots, on the plan of the City of Washington; that after said
partition, the said defendant paid moneys on account of said rent,
under said lease, to said Mary Bradley, and also paid the taxes to
the corporation of the City of Washington, as provided in said
lease, to the year 1831; that she failed to pay the taxes for the
years 1831, 1832, 1833, and 1834, amounting in all to the sum of
$44.33 cents, and the said leasehold interest was set up for sale,
and it not producing enough, the fee simple of the ground described
in said lease was set up for sale for taxes, and was sold; that at
the time of the said tax sale, there was personal property on the
said ground, liable for said taxes, more than sufficient to pay
such taxes, and the said ground was improved property, having a
dwelling house upon it; that after said tax sale, the defendant
promised the plaintiffs to redeem said property, and failed to do
so within the two
Page 42 U. S. 216
years next succeeding said sale; that she waited until said two
years had elapsed, and then called upon Allison Nailor, the
purchaser thereof at said tax sale, and represented to him that she
was the owner of the said property, and obtained from him an
assignment of his certificate of purchase at said tax sale; that
afterwards, the said assignment was cancelled, because the
corporation could make no deed to an assignee, and the said Nailor
received a conveyance from the corporation of Washington, and then
executed a conveyance to the defendant of the premises in question,
and the defendant then set up a claim to the premises in fee
simple, and adverse to the plaintiffs; that on the ___ day of
October, 1838, there was rent due and in arrear, under the said
lease amounting to $193; and that there was not more than $30 of
personal property on the said premises, liable to distress for
rent, on the ___ day of October, or at the time of bringing this
action; and here the plaintiffs rested. And thereupon the
defendant, by her counsel, prayed the court to instruct the jury
that under the evidence aforesaid, the plaintiffs are not entitled
to recover in this action, which instruction the court refused to
give, and the defendant excepts thereto and prays the court to sign
and seal this bill of exceptions, which is done accordingly."
"W. CRANCH [L.S.]"
"JAMES S. MORSELL [L.S.]"
By a comparison of the facts set out in this bill, with the
first count in the declaration, it will be seen that the plaintiff
has counted upon a lease to him from William Prout of the date of
January, 1827, when it is manifest by the proofs adduced by the
plaintiff, that Prout died in 1823, four years previously to the
existence of the lease. This irreconcilable contradiction between
the different parts of the plaintiff's title, as dependent upon the
first count, it is unnecessary to comment upon, as the counsel was
understood, in the argument, to admit its effects as conclusive to
prevent a recovery under that count.
Had the plaintiff in ejectment a right to recover under the
demise from Bradley and wife, upon the second count? The
foundations for the recovery contended for on behalf of the
plaintiff are, a forfeiture of tenure by the defendants, and a
right of reentry in the plaintiff, for a breach of the condition in
the lease of the premises, by the father of Mary Bradley, one of
the lessors
Page 42 U. S. 217
of the plaintiff, to Joseph B. Parsons. It is a settled rule at
the common law that where a right of reentry is claimed on the
ground of forfeiture for nonpayment of rent, there must be proof of
a demand of the precise sum due, at a convenient time before sunset
on the day when the rent is due, upon the land, in the most
notorious place of it, even though there be no person on the land
to pay. 1 Saund. 287, note 16, in which are cited 1 Leon. 305;
Cro.Eliz. 209; Plowed. 172, b; 10 Rep. 129; Co.Litt. 201, b; 4
Leon. 117; 7 T.R. 117; and numerous other authorities.
See
also, upon the same point,
Doe ex dem. Wheeldon v.
Paul, 3 Car. & Payne 613, 14 Eng. Com. Law, 483; and
Roe ex dem. West v. Davis, 7 East 363. In this case, no
proof is adduced or even pretended of a compliance with anyone of
the requisites just enumerated.
But this suit is said not to be prosecuted upon rules of
practice at the common law, but under the authority of the statute
of 4 Geo. 2, c. 28, which is in force in Washington County. We will
inquire how far the decisions upon the interpretation of this
statute have been fulfilled in the case before us. In
Doe v.
Lewis, 1 Burr. 619, 620, the court said that this statute
prescribes a method of proceeding in ejectment in two cases,
viz.: one in case of judgment against the casual ejector;
the other in case of its coming to trial. In the former, an
affidavit must be made in the court where the suit is depending,
that half a year's rent was due before the declaration was served,
and that no sufficient distress was to be found on the premises
countervailing the arrears then due, and that the lessor had power
to reenter; in the latter (that of a trial), the same things must
be proved upon the trial; therefore it is held that this statute
does not extend to cases where there is a sufficient distress upon
the premises, and consequently in such cases the lessor must
proceed at common law as before the statute. To the same effect is
the decision in
Doe ex dem. Foster v. Wandless, 7 T.R.
117. It has been expressly ruled that under the statute of 4 Geo. 2
there must be proof that on some day or period between the time at
which the rent fell due and the day of the demise, there was not a
sufficient distress on the premises.
Doe ex dem. Smelt v.
Fuchau, 15 East 286, and further that evidence must be adduced
showing an examination of every part of the premises, and that
where a party omitted to
Page 42 U. S. 218
enter a cottage, this was deemed an insufficient search. 2 Bro.
& Bing. 514, 6 Eng.Com.Law. Of the two demises laid in the
declaration, the first is in January, 1827, the second on 1
January, 1838. Turning to the first bill of exceptions, we find it
stated as having been proved, that on the ___ day of October, 1838,
there was rent due and in arrear, amounting to $193; next, that
there was not more than $30 value of personal property on the
premises liable to distress for rent on the ___ day of October, or
at the time of bringing this action. It will thus be perceived that
the proofs by the plaintiff in ejectment fall short of the
requirements of the statute in the following particulars,
viz., in failing to show that any examination had been
made to ascertain what amount of personal property was upon the
premises at any time, or that there was anyone day or period of
time between the accrual of the rent for six months, and the date
of either demise, at which there was a deficiency of personal
property on the premises countervailing (to adopt the language of
the courts) the arrears then due, for the last demise is dated
January 1, 1838, the deficiency is averred to have been in the
month of October following; the declaration was served in November,
1838, a still later period of time.
For these defects in the case made by the plaintiff in
ejectment, it is the opinion of this Court that the instruction
prayed by the defendant, as set forth in the first bill of
exceptions, ought to have been given; that in refusing such
instruction, the circuit court has erred. Its judgment must
therefore be
Reversed.
Order
This cause came on to be heard on the transcript of the record
from the Circuit Court of the United States for the District of
Columbia, holden in and for the County of Washington, and was
argued by counsel. On consideration whereof, it is now here ordered
and adjudged by this Court, that the judgment of the said circuit
court in this cause be and the same is hereby reversed, with costs;
and that this cause be and the same is hereby remanded to the said
circuit court, with directions to award a
venire facias de
novo.
