1. An error committed in overruling an objection to a juror as
legally disqualified is cured where it appears affirmatively that
he was not a member of the panel which tried the case and it does
not appear that by his exclusion therefrom the party's right of
challenge was abridged.
2. A person offered as a juror is not compelled to disclose
under oath his guilt of a crime which would work his
disqualification. If he declines to answer, the objecting party
must prove such disqualification by other evidence.
3. In ejectment, or trespass
quare clausum fregit,
actual possession of the land by the plaintiff or his receipt of
rent therefor prior to his eviction is
prima facie
evidence of title on which he can recover against a mere
trespasser.
The facts are stated in the opinion of the Court.
MR. JUSTICE MILLER delivered the opinion of the Court.
This was an action of ejectment brought in the Circuit Court of
St. John's County, Florida, by Maria M. Panjaud, to recover the
possession of two lots or parcels of land in the City of St.
Augustine. The suit was subsequently removed to the circuit court
of the United States. The defendant set up no title whatever to the
lots, nor, as far as the record shows, did he even rely upon the
statute of limitations, although he had been in possession of the
demanded premises for several years before the commencement of the
suit. Judgment was rendered against him, and he sued out this writ
of error.
A bill of exceptions presents the errors we are called upon to
examine.
It appears that before the jury was sworn to try the case, one
of the panel, Henry Holmes, was sworn on his
voire dire,
and was asked whether or not he had aided or abetted the late
rebellion against the United States, when he was told by the
presiding judge that it was optional with him whether he would
answer the question or not, and said Holmes declined to answer. The
defendant excepted to this ruling, and then
Page 99 U. S. 181
moved that Holmes be excluded for cause, which the court
overruled, and defendant excepted again.
It appears affirmatively that Holmes was not sworn as one of the
jury, and no reason is given for it.
1. We are of opinion that since Holmes did not sit on the jury,
no harm was done to defendant. The object of both motions was to
exclude him as one incompetent to sit. It is immaterial to the
defendant how this was brought about. It is possible that if
defendant had shown affirmatively that he was excluded by reason of
his peremptory challenge, and that in doing so the exercise of his
right of peremptory challenge had been abridged, the result might
be otherwise. It is sufficient to say that the record does not show
that he was on the jury, but in fact that he was not, or that in
getting rid of him any right of defendant was abridged or lost.
2. But we are further of opinion that a juror is no more than a
witness obliged to disclose on oath his guilt of any crime, or of
any act which would disgrace him, in order to test his
qualification as a juror. The question asked him, if answered in
the affirmative, would have admitted his guilt of the crime of
treason. Whether pardoned by a general amnesty or not pardoned, we
think the crime was one which he could not be required to disclose
in this manner. Nor would this ruling deprive the party of his
right of challenge. Like a conviction for felony or any other
disqualifying circumstance, the challenger was at liberty to prove
it by any other competent testimony.
He did not offer to do this, and as the juror's incompetency was
not proved, the court was not bound to exclude him.
All the other exceptions relate to the insufficiency of
plaintiff's title to recover, it being conceded that defendant
showed none in himself.
It is true that plaintiff does not trace her title to any
acknowledged source. But as to lot 4, she produces a deed from M.
C. Mordecai and Thomas Kerr, dated April 30, 1845, conveying the
lot to her, and she proves by a competent witness that there were
two houses on this lot, and that she lived in one or both of them
from 1845 to 1847, and that one Solonoa, as agent for plaintiff,
returned this property for taxes
Page 99 U. S. 182
and paid the taxes from 1857 to 1860, and that the two houses
were occupied.
As regards the other lot of ground, no written evidence of title
is proved, but the tax collector states that the same Mr. Solonoa,
professing to act for plaintiff, paid the taxes on this lot as on
the other, and that witness leased this lot from him, professing to
act as agent of plaintiff.
On this evidence, the court instructed the jury in several forms
that if they believed the plaintiff had possession of the lots in
suit at the times mentioned, that the presumption was that she
retained possession by herself or tenants until ousted by
defendant, and that her removal from the City of St. Augustine was
not necessarily an abandonment of this possession, and if her
possession had continued for seven years, it was sufficient to
enable her to recover against a trespasser or one showing no right
to enter.
We think there was sufficient evidence as to both lots of
plaintiff's possession under claim of ownership. The deed from
Mordecai and Kerr, with her actual residence on lot 4, any payment
of taxes, was clearly sufficient to establish such possession. So
also, as regards the other lots, the witness who paid the rent was
her tenant. The payment of the rent to a man who professed to act
as her agent bound the tenant to her as such, and he could not have
disputed her title. It was her possession. This was corroborated by
the payment of taxes and the absence of any proof of abandonment or
loss of possession prior to defendant's tortious entry. It was
sufficient for the jury in the absence of any pretense of right by
defendant.
This principle is so well settled in the law of ejectment and
trespass
quare clausum fregit as to need no citation of
authority. It will be found laid down by Mr. Greenleaf in 2 Greenl.
Evid., sec. 311, that either actual possession of the premises or
receipt of rent is
prima facie evidence of title in fee;
also secs. 618, 618
a.
See also Hutchison v.
Perley, 4 Cal. 33;
Nagle v. Massey, 9
id.
426.
There are no other assignments of error worthy of notice, and we
see no error in the record.
Judgment affirmed.
Page 99 U. S. 183
MR. JUSTICE FIELD concurring.
I agree with the Court that the juror Holmes in this case could
not be required to answer the questions put to him, but I go
further. I do not think that the act of Congress, which requires a
test oath as to past conduct and thereby excludes a great majority
of the citizens of one-half the country from the jury box, is
valid.
* In my judgment,
the act is not only oppressive and odious, and repugnant to the
spirit of our institutions, but is unconstitutional and void. As a
war measure, to be enforced in the insurgent states when dominated
by the national forces, it could be sustained; but after the war
was over and those states were restored to their normal and
constitutional relations to the Union, it was as much out of place
and as inoperative as would be a law quartering a soldier in every
Southern man's house.
MR. JUSTICE STRONG dissented on the ground that the evidence of
plaintiff's possession was not sufficient to raise the presumption
of title.
* The act was passed in 1862, repealed in 1871, and reenacted in
1874 by sec. 820, Rev.Stat.