Funk's Lessee v. Kincaid

Eccleston, J., delivered the opinion of this court. The bill of exceptions presents questions arising upon two prayers asked by the plaintiff, and upon objections made by him to the admissibility of the testimony of Harris and Heighe, two witnesses on the part of the defendants. But the objection to the testimony of Heighe has been waived; and we will proceed, first, to consider the questions presented by the prayers. They both assert the principle, that in an ejectment suit the defendant is estopped from denying the title of the lessor of the plaintiff, where the defendant came into possession of the premises as tenant of a party' who has convej'ed the reversion to the lessor of the plaintiff.

The counsel for the appellees concedes, that as between lessor and lessee the latter cannot deny the title of the former, but he insists that the doctrine of estoppel does not prevent a tenant from disputing the validity of a title which the lessor has attempted to convey, or transfer, to another party, who has instituted an action to recover possession of the premises from the tenant. To a certain extent the appellees’ counsel is correct. For if the deed or instrument intended to convey the reversion should be defectively executed, or in case the original lessor, subsequent to the lease, should convey all his right in the estate, and then execute a second conveyance for the same, in favor of another person y the title claimed under the second conveyance, or that under ⁴⁰⁹ Uyo supposed defectively executed instrument, might be disputed by the tenant, But he can make no defence in ejectment which denies that his lessor had a right to make the lease, under which he entered into possession. The title of the lessor; as of the date of the lease,.is in fact the title of the lessee.

The ¡former cannot be impugned without disparaging the latter. And if the tenant attempts to set up any other title as existing at the date of the lease; he will be violating the contract by which he obtained possession. This subject is discussed very fully in Willison vs. Watkins, 3 Peters’ Rep., 43, and on page 47 the court say: “It is an undoubted principle of law; fully recognized by this court; that a tenant cannot dispute the title of his landlord, either by setting up a title in himself or a third person, during die existence of the lease or tenancy. The principle of estoppel applies to the relation between them, and operates in its full force to prevent the tenant from violating that contract by which he obtained and holds possession.” See also 5 Cowen, 129. 2 Caine’s Rep., 216. 7 Wheat., 548, 549 . 5 Eng.

C. L. Rep., 4. 29 Ibid., 16, and 25 Ibid., 239. In Doe on Dem., Higginbotham vs. Barton, 11 Adol. & Ellis, 307, in 39 Eng. C. L. Rep., 99, the rule is said to be fully established, “that the tenant caftnot deny that the person by whom he was let into possession had title at that timé, but he may show that such title is determined.” Here the' effort is not made to prove the termination of Mrs. Hinchtnan’s estate or title subsequent to the lease, but to show that prior to it she had been legally married to Harris; who was still living. The effect of which proof, if admissible, would be to establish, that at the date of the lease she had no authority to make it.

Now as it is manifest from the authorities a tenant cannot resort to' such proof for such a purpose, it would seem, necessarily, to follow, that the same proof could not be used in defence to show a want of authority in Mrs. Hinchman to convey her title to the lessor of the plaintiff. The doctrine of estoppel, as between lessor and lessee, would avail nothing in ejectment if the inability of the latter to impeach the title does not apply between her and the party ⁴¹⁰ claiming under the former, for if it does not, then, even the lease to the fictitious plaintiff might be assailed. It is certainly true, as a general rule, (hat a party cannot maintain an ejectment who cannot make a valid lease. The proof in regard to the marriage between Harris and Mrs. Hinchman is, that it took place before she rented the property to Mrs. Kincaid.

To say that the conveyance to Funk by Mrs. Hinchman and J. E. Hinchman, as husband and wife, made since the lease from her, is a nullity, because she is not the wife of Hinchman but of Harris, is a direct denial of the title received by Mrs. Kincaid under the lease. For if she had no right to make the one she had none to make the other conveyance, and for the same reason. There is evidence tending to prove that Mrs. Kincaid was the tenant of Mrs. Hinchman prior to the deed from Mr. and Mrs. Hinchman, and it does not appear that the tenancy of Mrs. Kincaid had ceased to exist when this deed was made. If, therefore, she held under the lease when the deed was made, she could not deny the right of Mrs. Hinchman to make the conveyance, and by that instrument the relation of landlord and tenant was established between the grantee in the deed and Mrs. Kincaid.

That this is the necessary consequence of the conveyance may be seen by reference to Archb. Law of Landlord and Tenant, 69, 70, in 53 Law Lib., 86. And since the statute of 4 Anne, ch. 16, sec. 9, no attornment by the tenant is necessary. See 20 Eng.

Law & Eq. Rep., 94. In Willison vs. Watkins, the father of the defendant below was the tenant of Bordeaux in 1792. Under a sheriff’s sale in 1803, the plaintiff below purchased the title of Bordeaux, and in the suit, claimed to stand in the relation of landlord to the defendant, who was the son of the original tenant.

Limitations was the defence relied upon. And although the proof clearly established an adverse holding for a much longer time than the statute of South Carolina required, yet the plaintiff succeeded below; the judge having instructed the jury, that when the proof showed a tenancy had once existed, the tenancy must not only be abandoned, but possession given up, before an adverse possession could be alleged. This decision. ⁴¹¹ was reversed by the Supreme Court, upon the ground, that, although a party may be a tenant, the landlord’s title may be defeated by limitation, if, after having knowledge of an adverse claim, he permits the adverse holding to continue for the period required by the statute without suit; notwithstanding possession had not been given up before the commencement of the adverse claim. But there is no expression or even an intimation of a doubt, that the doctrine of estoppel would operate in favor of an assignee or grantee of the reversion to the same extent it would in favor of the original landlord.

By the first prayer the court were asked to instruct the jury, that “if from the evidence they should find the property in dispute was rented to Mrs. Kincaid, in the manner stated in the proof, and under that renting she entered and took possession of the whole property, for which this action was instituted, then the said defendants are estopped from setting up any outstanding title in said defendants, or any other person adverse to that of the plaintiff. ” It is here assumed that both defendants were prevented from denying the plaintiff’s title; provided, the jury should believe the property was rented to Mrs. Kincaid, and that she took possession, under the lease; without submitting to the jury any inquiry as to how or in what manner Mrs. Murdock became possessed of part of the premises. Supposing that in regard to Mrs. Kincaid the prayer may be correct, still the court could not say that the facts staled, if believed by the jury, would estop Mrs. Murdoch from disputing the title of the plaintiff, because it would be assuming that she did not come into possession in any other way than under Mrs. Kincaid, without leaving the jury to find whether such was the case. And this the court could not do, no matter how full and ample the proof to justify such an inference or conclusion. The second prayer is, that “if the jury believed Mrs. Hinchman was in peaceable and quiet possession of the property in dispute, and so continued from the year 1820 until it was rented by her to the defendant, Mrs. Kincaid, who accepted the same, and entered- and took possession of it as the tenant of Mrs. Hinchman, and that Mrs. Kincaid remained in ⁴¹² possession under her original entry, then it is not competent for said defendant to set up a title in herself, or in any third party, to defeat, nor is there any evidence in this case, in point of fact, to show any such title in said defendant or any third party, as ean bar the right of recovery of the lessor of the plaintiff/* There are two propositions presented in this prayer.

The first is, that if the jury ascertain the. facts submitted for their consideration to be true, then Mrs. Kincaid could not set up title in herself or any one else, to defeat the claim of the plaintiff. The second is, that if those facts are believed by the jury, then, in point of fact, there is no evidence of title in Mrs. Kincaid, or any other person, which cam legally bar the right of the plaintiff. In other words, the meaning of (he instruction, as we understand it, is, that if the relation of landLady and tenant existed, between Mrs. Hinchman and Mrs. Kincaid, the latter cquld not impeach the title of the lessor of the plaintiff, by proving title adverse to his. And that in fact there is no proof of any adverse title, which the law will permit to be used as a bar tq this action; provided the jury believed the facts stated in the beginning of the prayer.

The doctrine of estoppel as relied upon in the first part of this prayer is clearly confined to Mrs. Kincaid alone; but the same cannot be said of the latter, clause. When it says, “nor is there any evidence in this- case, in point of fact, to show any such title in said defendant, or any third party, as can bar the right of recovery.;” &c., it denies not only to Airs, Kincaid, but to Mrs. Murdoch also, the authority tp set up the title of a third party in opposition to the plaintiff’s claim. And, therefore, the reasons assigned for affirming the.rejection of the first prayer apply with equal force in bringing us to the conclusion that the court below were right in refusing the second also. But admitting the reasons already assigned may not be sufficient to justify or sustain the rejection of the prayers, still they ought not to have been granted, because they ask the court to instruct the jury that if they believe Mrs. Kincaid was the tenant of Mrs. Hinchman, then the doctrine of estoppel prevents a denial of the title of the lessor of the plaintiff; ⁴¹³ without, requiring that the jury shall find any conveyance or transfer of title to him by Mrs. Hinchman, or in what manner he acquired any title.

It is true the deed to him is in evidence, but the prayers make no allusion to it. And the court could not assume the existence of the deed, no matter how clear the proof on that subject. Although the jury may have believed there was a lease from Mrs. Hinchman to Mrs. Kincaid, and that she took and held possession under it, yet she was not estopped from disputing Funk’s title or settiug up another in opposition to it, unless he had obtained the title of Mrs. Hinchman. And if he had, it was necessary for the jury to find it to be so, before he was entitled to an application of the law of estoppel in his favor, on account of the relation of landlord and tenant.

Both prayers are evidently based upon this kind of estoppel, and neither of them having submitted to the jury any question as to how the lessor of the plaintiff claimed or acquired title, they were defective in that respect, and consequently the court committed no error in refusing to grant them. The decision below under which Harris was permitted to testify in regard to the marriage between himself and Mrs. Hinchman has been objected to on several grounds. In the first place it is said the relation of husband and wife rendered him incompetent; and that whether a wife is or is not a party to the suit, if there is evidence in regard to her being a married woman, and an effort is made to prove a former marriage, the alleged former husband is not a competent witness to sustain the allegation; because he would be proving the guilty conduct of his own wife, if permitted to testify. This view is sustained by the case of Rex vs. Cliviger, 2 Term Rep., 263, where it was held that a wife could not in any case give evidence, even tending to criminate her husband.

But the authority of that decision was very much shaken by Rex vs. All Saints, 6 Maule