Piper v. Cashell

GILBERT, Circuit Judge, after stating the case as above; delivered the opinion of the court. Several of the assignments of error may be disposed of upon a consideration of the question whether or not the threat of evicting the plaintiff in error from the possession of the property in controversy as pleaded in the answer constituted such duress or threat as to render voidable the lease ■ which he and Wood took from Rodee and Shaw on Feb- . ruary 1, 1900. The gist of these averments, as they must be construed in view of the uncertainty of some of them, is that Sullivan procured a judgment in the municipal court of Nome in an action which he brought against Hawks, Piper, and Wood, and threatened to enforce the same. It is not alleged that the court was without jurisdiction of the subject-matter or of the parties to the action. It is true it is said that the action was a pretended .one, but wherein the pretense consisted is not pointed out. It is alleged also that the plaintiff in error was threatened with prosecution before the municipal court of Nome, “a court without jurisdiction, and having no legal existence.” The most that can be said of this allegation is that the court was without jurisdiction of such criminal prosecution, and that at that time it had no legal existence. These averments are insufficient to show that the judgment was not a judgment [78] of de facto court, and valid at the time when it was rendered, or that it was incapable of lawful enforcement. The answer, moreover, fails to aver that the lease was made under such threats or alleged duress. It alleges only that the $100 was paid under the detailed circumstances. It is assigned as error that the court admitted in evidence a lease made on December 12, 1899, between the defendants in error, as lessors, and Piper & Wood, as lessees, whereby the former demised to the latter the strip of land in controversy for a term beginning with that date and expiring June’ 1, 1900, and wherein the lessees covenanted to surrender up said premises at the expiration of the term. The assignments of error do not specify any ground of objection to the admission of this evidence. The objections can only be ascertained by searching the record. This the court will decline to do where the objection is purely technical. Grape Creek Coal Co. v. Farmers’ L. & T. Co. 12 C.C.A. 350, 63 F. 891; Atchison, T. & S. F. R. R. Co. v. Mulligan, 14 C.C.A. 547, 67 F. 569; Esterly v. Rua (C.C.A.) 122 F. 609. The objection urged in the brief of the plaintiff in error on the presentation of the case in this court is that the lease had not been pleaded as an estoppel. This objection is clearly technical. The lease was the act and deed of the plaintiff in error, and he must be presumed to know what he did. There was no occasion to advise him thereof by the replication. There are several assignments of error which raise the question whether a tenant who, while in possession of land under a lease, takes a second lease from another lessor claiming title and right of possession ■ hostile to that oí the first, and who, in consequence of said second lease, is allowed to remain in the undisturbed possession of the premises, is estopped from denying the second lessor’s title to the land before surrendering possession to him. The plaintiff in error cites decisions of the Supreme Court of California to sustain the • proposition that, where the tenant did not take possession under the lease, but was already in possession, he is not estopped to deny the lessor’s title. Tewkesbury v. Magraff, 33 Cal. 237; Franklin v. Merida, 35 Cal. 558, 95 Am.Dec. 129; Davis v. McGrew, 82 Cal. 135, 23 P. 41. The court of California stands [79] practically alone in asserting this doctrine. The overwhelming weight of authority is against it. Lucas v. Brooks, 18 Wall. 436, 21 L.Ed. 779; Carter v. Marshall, 72 Ill. 609; Buchanan v. Larkin, 116 Ala. 431, 22 So. 543; Mitchell v. White, 74 Ga. 327; Forgy v. Harvey, 151 Ind. 507, 51 N.E. 1066; Bowdish v. Dubuque, 38 Iowa, 341; Kelley v. Kelley, 23 Me. 192; Tullis v. Tacoma Land Co., 19 Wash. 140, 52 P. 1017; Campau v. Lafferty, 43 Mich. 429, 5 N.W. 648; Hawes v. Shaw, 100 Mass. 187; Parrott v. Hungelburger, 9 Mont. 526, 24 P. 14; Jackson v. Ayers, 14 Johns. (N.Y.) 224; Hamilton v. Pittock, 158 Pa. 457, 27 A. 1079. We find no error in any of the rulings of the District Court, and we affirm the judgment.