Campbell v. Shipley

Milltsr, J.,

delivered the opinion of the Court.

This is an action of ejectment for a lot of ground in the city of Baltimore, instituted by the appellee against the appellants, on 'the 31st of October, 1873, under the 2nd section of the Act of 1872, ch. 346, a re-enactment in substance of the 2nd section of 4 Geo. 2., ch. 28, which, up to that time had been in force in this State. Alex. British Statutes, 704.

The plaintiff’s case is this: He offered in evidence a lease of the lot in question from Lyde Goodwin to John Shroud, dated the 1st of May, 1801, for ninety-nine years, renewable forever, reserving the yearly rent of $14. He then proved the grant on the 17th of January, 1818, of administration upon the estate of Shroud to Jacob Sleeper, the ancestor of the defendants, and under whom they claim, and then offered in evidence a conveyance of the leasehold interest from Sleeper, as administrator of Shroud to one Henry Peters, dated the 22nd of January, 1818, for the consideration of $100, and a re-conveyance of the same by Peters to Sleeper on the next day, January 23rd, 1818, for the same consideration. Both of these conveyances, the assignment to Peters and the re-assignment to Sleeper, recite the original lease from Goodwin to Shroud, and were both recorded on the same day, January 23rd, 1818. fie then offered in evidence the will of Sleeper, executed on the 7th of August, 1818, by which he devised all his estate to his wife, (whom he also appointed his executrix,) for life, and after her death to be divided among his five children, as therein mentioned, and proved the grant of letters testamentary on his estate to his widow, on the 25th of June, 1819. He then proved devolution of the reversion in this property on himself, his title thereto accruing on the 4th of May, 1870, and then called Campbell, one of the defendants, who testified that Jacob Sleeper was his maternal grandfather, and that his mother’s name was Philopena, (one of the devisees named in her father’s will,) that his mother lived with her father on the property till he died, and after his death she continued to live there with her children, the defendants, till the house burned down in 1840, and that his mother told him the possession of the property came from his grandfather Sleeper. The plaintiff himself then testified that no rent had been paid him on the property since he owned it. It was then agreed that at the time, and for some years prior to, the suit, the lot was unimproved, and there was not at the time of suit brought, distrainable property on the jJremises to countervail the rent, and the plaintiff then rested his case.

Before considering the several rulings excepted to, we shall notice a preliminary objection taken to the action by the appellants, and then state our views of some general legal propositions which must control our decision of the case.

It is argued that this was a perpetual'lease, and differs in its character and terms from any of those referred to in any of the cases which have been decided under the statute of 4 Geo. 2, and does not fall within the provisions of that Act. But the length of the term cannot affect the operation of the statute. The lease creates the relation of lessor and lessee, or landlord and tenant, and the statute in terms applies to every such case. It dispenses with a previous demand of rent and re-entry, and substitutes therefor service of a copy of the declaration in ejectment, in all cases where the landlord or lessor has right by law to reenter. This lease gives the right of re-entry if the rent be in arrear for one year, “the same being first lawfully demanded.” In the case of Doe vs. Alexander, 2 Maule & Selv., 525, the lease provided for re-entry in case of the rent being in arrear for a certain time and, “being lawfully demanded,” and tbe Court, contrary to the opinion of Lord Ellenborough, held that the insertion of these words in tbe lease did not affect tbe operation of tbe statute, and that a demand was unnecessary. That case settled tbe law in England, and we find no substantial difference between the words “being lawfully demanded” and “being first lawfully demanded.” In tbe construction of such an instrument tbe latter are included in the legal force and operation of the former.

ISText, what is tbe effect upon the case of the fact that Jacob Sleeper assigned and took a re-assignment of the lease in 1818? It is proved lie was in possession of the property from 1808, after the death of Shroud, up to 1818, but there was no tittle of proof offered tending to show that, during this period lie held in any other right than as a tort-feasor. The only construction possible as to the nature of his possession is, that it was that of a trespasser or disseissor. Before the possession had ripened into a perfect title by the lapse of twenty years, he voluntarily administered upon the estate of Shroud, and assigns and takes to himself a re-assignment of this lease by solemn instruments under seal, which he places upon record, and in which the title of the lessor is carefully recited and recognized. By this he became the tenant of filie lessor, and his holding thenceforth until his death, was consistent-with the title of his landlord. He, and those claiming under him are, by this act on his part, and by these conveyances, estopped from denying that the relation of landlord and tenant was then created between him and the owner of the reversion. From the date of these conveyances he became tenant of tbe premises under the lease recited in them, and tbe case is to be treated in the light of this as a conclusively established fact, and as if possession had then for the first time commenced in Sleeper as such tenant. Such being the nature of the case, we take it that these propositions are firmly settled :

1st. When the relation of landlord and tenant has been created, the possession of the tenant is consistent with the title of the landlord and the mere non-demand and nonpayment of rent, are not sufficient to bar the landlord’s title whatever effect they may have, if long continued, upon his right to recover the rent.

2nd. Not only is the tenant precluded from relying on his possession to bar his landlord,.but also all persons who come in under, or derive possession from, the tenant in any manner however remotely.

In support of these positions reference may be made to the well considered case of Jackson vs Davis, 5 Cowen, 123, and also to Brandter vs. Marshall, 1 Caines Rep., 394 ; Angell on Limitations, sec. 442; Banders vs. Lord Annesley, 2 Sch. & Lef. 106; Failing vs. Schenck, 3 Hill, 344. In fact we have been able to find no case in which these principles are disputed. It is to be observed that this is not even the case of a tenant holding over after the expiration of the lease, or of a tenancy at will. The term had not expired at the time this suit was brought. Unquestionably those succeeding a tenant in possession of the premises under or through him, may show the relation has been dissolved, or set up an actual ouster of the landlord, and adverse holding thereafter; but what is required to sujjport this defense ? Possession in such cases is presumed to be in accordance with the title, and this presumption will hold until some notorious and unequivocal act of exclusion shall have occurred. Thus in the case of Israel vs. Israel, 30 Md., 125, the Court in considering the case of tenants in common said, “the possession of one tenant in common is in contemplation of law, the' possession of the others also, and it is necessary to prove an actual ouster to rebut this presumption,” and this applies with equal if not stronger force to the case of landlord and tenant. In Gwynn vs. Jones’ Lessee, 2 G. & J., 184, a case where adverse possession was relied on by a party claiming under the assignee of a lease, to defeat the ejectment of the reversioner, and where actual possession in him and those under whom he claimed had continued for nearly forty years, our predecessors said “we cannot perceive anything in the facts of the case that looks like a possession adverse to the title of the plaintiff, until the year, 1805, when upon the demand of Horris, J'r.,” (the reversioner) “the possession was refused to be delivered to him by the defendant. When the land was enclosed by Sanders,” (the orginal lessee) “he was confessedly the tenant of Norris the elder, and it is natural to suppose he fenced it in that he might have the greater enjoyment of it. That the enclosure was kept up by Webster” (the assignee of the lease,) “and his tenants with the same view, we must presume, where no attempt is made to prove an altered and adverse intention. If no rent was paid and the tenancy not expressly admitted, there is nothing to show that the possession was held in hostility to the rights of the landlord, and those claiming under him. In the absence of this proof nothing is to be presumed in favor of an adverse possession, and more particularly so where it commenced rightfully and with the consent of the owner. The mere holding over after the term ended is not evidence of an adverse possession, and the possessor will be regarded as the tenant at will of the landlord, unless he can show that since the expiration of the lease he has held forcibly or has acquired a title paramount to that under which the possession was originally taken. Something more than a mere intimation of hostility in such case is necessary, and the possessor coming in under the assignee of the lease, as in this case, must be supposed to hold his title.” So also in the early case of Lisle vs. Harding, decided in the Common Pleas in 1747, (Bull. N. P., 104,) tlie Court said “ if a cottage were built at first by permission of the lord of a manor, or any acknowledgment of his title has since been made (though it were a hundred years since,) the Stat. of Jac., 1, ch. 16, will not run against him; for the possession of a tenant at will for any assignable lapse of time is no disseisin ; there must be a tortious ouster.”

We cite these cases among many others to the same effect, to show that what will amount to and be proof of ■ adverse possession in ordinary actions of ejectment between strangers, has no application to the case before us. In cases like this there must be, at least, some proof of an actual ouster to rebut the presumption that the possession was in accordance with the title, and proof that does not come up to this is not evidence of adverse possession. Here the defendants’ ancestor was tenant of the premises, and they and those through whom they claim, succeeded to the possession after his death, and their sole defence to the landlord’s action is adverse possession. Now tested by the requirement and standard above stated, we are clearly of opinion the evidence offered by the defendants in the first seven exceptions, was properly rejected. We shall notice these exceptions briefly.

1st. We cannot perceive what • possible relevancy the inventory of Sleeper’s estate returned by his executrix, or the fact that no inventory was returned by Sleeper as administrator of Shroud, can have to the case. Neither the right of recovery or defense could be affected by such proof. It was rightly refused and this disposes of the first, fifth, and sixth exceptions.

2nd. One witness was asked whether the Sleepers • claimed the property as their own absolute property in any conversation with him, or did they admit the claim of any other person to the property in conversations with him about it? and another, did Mrs. Campbell, (the mother of the defendants) while in possession of the property in a conversation with him, claim the property as her own fee simple absolute property ? The Court refused to permit these questions to be answered, unless the plaintiff or some one under whom he claims was present at the time of these conversations. There was clearly no error in this ruling. Such conversations or assertions of claim of title were not evidence of adverse possession in this case, unless brought home to the knowledge of the landlord. Parties in possession of leasehold property, and deriving their possession in the mode in which these defendants admittedly did, cannot set up adverse possession by such proof as this. This disposes of the second and fourth exceptions.

3rd. Another witness was asked “ do you know whether the possession of the property by the Sleepers was notorious, adverse and exclusive and accompanied by the claim of absolute title? what was the notorious, general reputation in the community as to the Sleepers ownership of this property ? and still another, ‘ ‘ do you know whether the possession of the property by the Sleepers was notorious, adverse, exclusive and accompanied by the claim of absolute title? ” The Court also refused to permit these questions to be answered. Without stopping to consider technical grounds upon which both these rulings might well be sustained, we place their correctness upon the substantial ground already stated. There was no offer to prove that this claim of absolute title was ever made in the hearing of the plaintiff or of any one under whom he claimed. The record shows the defendants’ counsel admitted he could not show this, and he did not even offer to prove that the then owner of the reversion was a resident of Baltimore city, or of the State, so that this alleged general reputation of ownership in the community, or notoriety of possession, or the alleged claim of absolute title could possibly have reached him. Without some further proof or offer of proof on this point, such testimony was wholly inadmissible to establish or as tending to establish adverse possession as against the landlord. This disposes of the third and seventh exceptions.

(Decided 1st July, 1874.)

The Court having rightly rejected this proffered testimony, there was nothing left for it to do but to dispose of the prayers as it did, by rejecting those of the defendants, and granting that of the plaintiff. We have shown that non-demand and non-payment of rent cannot affect the case, and there were no other facts before the jury which could jiossibly affect the right of recovery, inconsistent with those left to their finding by the instruction granted at the instance of the plaintiff. By this the jury were instructed that if they found the execution and delivery of the lease from Goodwin to Shroud, and the assignment of it from Sleeper as administrator of Shroud to Peters, and from Peters to Sleeper, and the grant of administration on Shroud’s estate to Sleeper, and that Sleeper died in possession of the property in controversy leaving a will which was admitted to probate, and that letters testamentary thereon were granted to his widow1 and executrix, and that by this will he devised this property or this with other property, and that his wife and daughter the mother of the defendants were in possession, living with their said father and husband before his death, and so remained until the death of the widow, and the said mother with her children continued in possession until her death some nineteen years since, and shall further find the execution and delivery of the deeds by which the reversion was conveyed to the plaintiff, and that more than one year’s rent reserved in the lease was in arrears when the suit was instituted, and that there was not at the time of the institution of this suit and for some time before, sufficient distrainable property on the premises to countervail the rent due, then they should find for the plaintiff. The plaintiff’s right to recover upon this state of facts, cannot, in our opinion, be reasonably questioned.

Judgment affirmed.