Stockett v. Watkins' Admr's

Eakle, J. delivered the opinion of the Court. There were five exceptions taken on the trial of this case, which is an action for the use and occupation of land, and for the work, labor, and services of negroes, brought by the administrators of Watkins against Stockett. The first and fourth were filed by the plaintiffs, and were not used by them. The remaining three have had a full share of our attention. The fifth exception contains a recapitulation of all the evidence examined by either party. On this exception, three prayers were submitted by the plaintiffs, and two by the defendants, and all were decided favorably to the former. They will all be adverted to, in the opinion about to be pronounced by this Court. The plaintiffs repeated all the evidence adduced on their part, and asked the Court to instruct the jury,' if they believed it, that it was sufficient evidence in law, to authorise them to infer the relation of landlord; and tenant, as existing between Watkins and the defendant, during the possession of Stockett, and that Stockett held the land and negroes, under the title of Watkins, and with his concurrence and permission ; and that it is not necessary in law, for the plain — 339 — tiffs 5 in order to maintain this action^ to prove an express contract with Stockett, at the time Stockett first took possession, nor any express reservation of a certain rent, nor the actual payment of any rent by Stockett to Watkins, or to the administrators of Watkins, since his death. The last part of this instruction is certainly correct. To maintain this action for use and occupation, it was not necessary for the plaintiffs to prove an express contract with the defendant at the time when he first took possession, nor an express reservation of a certain rent, nor that the defendant has paid rent to the plaintiffs, or their intestate. Such an action may be maintained on the implied undertaking, where the permissive holding is established; and if it appears in the evidence that a certain rent was reserved, the reservation may he used to regulate the quantum of damages. The former part of the instruction is of a different character, and exhibits to view the principal point in the cause. It informs the jury, that the evidence, as repeated by the plaintiff’s prayer, is sufficient in law to authorise them to infer the relation of landlord and tenant, as existing between the parties, during the possession of the defendant, and that he held the land and negroes, under the title of Watkins, and with his concurrence and permission. Every part of this evidence we have examined carefully, and we cannot perceive in any part of it, nor in the whole considered together, the presumptive quality ascribed to it. In a word, it does not appear to us sufficient in law, to justify the inference drawn from it by the County Court. In the fall of 1818, Joseph N. Sioihelt entered upon, and took possession of ibis land, and held it by himself and others, until the year 1825. By what authority, and in what character he possessed it, there is not a particle of direct testimony in the record to show, if he entered and possessed it as a trespasser, there is an end of this question. Out of this tortious proceeding no holding with permission can ever bo inferred, if he canta in as a trespasser, say the Court, in Harwood vs. Cheeseman, 3 Serg. and Rawl. — 340 — the plaintiffs cannot recover in an action for use and occupation. And in 6 Johns. Rep. 49, it is said by the Court, that the purchaser who refused to perform his contract, changed himself into a trespasser, and in that character was liable to be turned out, and made responsible for mesne profits. In January, 1819, Joseph N. Stockett united with Richard Stockett in reviving Lurana Stockettts bill in equity, against Nicholas Watkins, and although as her executor, and as administrator de bonis non of John Stockett, it was perhaps his duty so to do, to redeem the negroes transferred or pledged by the deed of 1816, he has nevertheless been considered as having taken her place in the contest, and succeeded to the possession of the land in her right. We will take a short view of the subject in this light, and see whether it will conduct to a different conclusion than that already stated. Whatever the early impressions of Lurank Stockett might have been with respect to the rights of Nicholas Watkins, under the deed from her husband, in the month of April or May following his death, she filed the bill in Chancery against him, asserting the deed to be nothing more than a mortgage, which she offered herself ready to redeem, and denying positively the absolute rights which he claimed under it. The legal warfare by her thus commenced, was prosecuted with ardor by Joseph N. Stockett, until the year 1820, when he succeeded in obtaining from the Chancellor an interlocutory decree, pronouncing the deed in question to be a mortgage. With cheering prospects before him, he pressed the case on to a final decree, and in 1822 Chancellor Johnson also declared the deed of 1816 to be nothing more than a mortgage. By Watkins, the case was then taken to the Court of Appeals, where it was met by Stockett in the spirit such a struggle is calculated to inspire. He employed able counsel to defend the appeal, and continued unceasingly to assert that the land he possessed was pledged only, and not conveyed absolutely to Nicholas Watkins; and in this assertion he — 341 — persevered, until undeceived by the Court of Appeals, in 1825. What ground is furnished by all this, it may be asked, on which to raicé a legal inference that Joseph N. Stockell held the land and negroes all the time he possessed them, under the title of Nicholas Watkins, and with his concurrence and permission. They are not facts and circumstances which usually attend such permissive holding, and this is the best test, it is said, by which to try a legal presumption. They rather appear to us of an opposite character, and to manifest the actual posture of Joseph N. Stockell, to have been inconsistent with the supposed tenancy to Nicholas Watkins. His equity proceeding had assumed for him the attitude of a mortgagor offering to redeem the mortgaged premises; and he maintained himself in it until the close of the controversy, and in this situation constantly held the disputed property. How then is it possible, in the teeth of this fact, to infer the relation of landlord and tenant between him and Nicholas Watkins, during the same period, and that he enjoyed by his permission ? The law sometimes implies contracts, but never where there is an express contract, or facts exist wholly inconsistent with the contract to be implied. But it has been thought that the Court’s instruction on Hie first prayer, is supported by the disclosures made by Joseph N. Stockell to James Davidson and John Beard, a little before, and after, the reversal of tlio decree in the Court of Appeals. We will briefly advert to them, to show their inadequacy for this purpose. When Joseph N. Stockelt was about to lease to James Davidson, early in the year 1825, he said to him that the rent would have to he paid to him or Nicholas Watkins, as the case between them eventuated in the Court of Appeals, at the next June Term, when it was expected to be finally decided. By this he said nothing more than to repeat the disposition the law would make of the accruing rent, in the event of the success of Nicholas Watkins: for it is exceedingly clear, that the tenant at the end of the year could not safely pay to any, except the established owner of the land, it bears — 342 — but little on the subject under review, having no tendency, that we can perceive, to aid the presumption that the relation of landlord and tenant existed between Nicholas Watkins and Joseph N. Stockett, during the pendency of their suit in equity, and in the Court of Appeals. The disclosure to John Beard is pretty much of the same cast, and appears to us to have little to say to the point before us. It took place in October, 1S25, at which time Joseph N. Stockett refused to abate the hire of negro Sam, and said he had to pay it to Nicholas Watkins, and that all the rents of the place, and the hire of the negroes, were to be paid to him, as the suit between them was determined. The event of the suit had rendered him accountable to Nicholas Watkins for the hire of the negroes, and the rents of the land, and there is to be recognized in what he said nothing more or less than an acknowledgment of his accountability to him. It affords no foundation on which to raise an inference that he was to be answerable for those demands in any particular form of proceeding, and not the slightest to justify a presumption that he held from Nicholas Watkins permissively from 1818 to 1825, to which holding there is not the smallest allusion. His liability he spoke of in general terms, and it would be a most strained and forced construction of his language, to deduce from it a permissive occupation by him of these premises, which his conduct, for a series of years together, flatly contradicts. To these sentiments of the Court, in relation to the instructions on the first prayer of the plaintiffs, the opinion of the County Court is opposed, on the first prayer submitted by the defendant. They refused on this prayer to direct the jury, that the plaintiffs were not entitled to recover in this action for the profits of the land, pending the ejectment instituted by Nicholas Watkins against Laurana Stockett in 1818, and discontinued in 1822; maintaining, as they did, the converse proposition, that the action was sustainable for the profits during the same period. This refusal of the Court below, we must then necessarily disapprove of, and — 343 — we will add no other remark upon this pari of ilio subject. The two other prayers on behalf of the plaintiffs, as well as the last offered by the defendant, refer to the negro properly, and will be disposed of by us in a few words. They rest upon different principles, and rye entirely concur, with the Court, that the action as to the work and labor of the servants may be sustained. Supposing Joseph N. Stockett to have possessed them as a trespasser from the first to the last of the tedious law suit, between him and Nicholas Watkins, the tort may he waived, and the action of assumpsit supported. This right to waive the direct injury, and adopt assumpsit, is universal, where the chattel taken, has boon turned into money. And it has been sustained in some instances, where the chattel has not been parted from by the trespasser. For the distinctions on this subject, vid. Haubly vs. Trott, Cowp. 375. The present ease however differs in its facts from most of the cases decided on this head. The negroes have been restored to Nicholas Watkins, and the claim is for damages for the tort, committed by the trespasser in seising them, and detaining them from the owner. That this kind of tort may also be waived, and an action substituted for it, on the implied contract, is fully established by the modern authorities, and is iu fact in principle like the old cases reported on this doctrine. Lightly vs. Coulston, 1 Taunt. 112, and Foster vs. Stewart, 3 Maul. and Selw. 197, may be consulted, and they will be found decisive on the point. The last was the case of an apprentice, seduced from the service of his master, where the seduction was waived, and an assumpsit for the work and labor of the apprentice, supported by Ld. Ellenborough, and the whole Court. With a few words on the second and third exceptions taken by the defendant, we will close this opinion. We cannot think with the Court below, that the admissions of Lurana Stockett, as to the terms on which she held the negroes, that belonged to her husband’s estate, were competent evidence against the defendant. He avowedly possessed thei. — 344 — as administrator de bonis non, oí John Siockstt, and in fact was a trespasser on the rights of Nicholas Watkins, and in neither character could he be prejudiced by the confessions of Lurana Stockett. It is true they were bequeathed by her husband to her, but if they had been proved her property, they nevertheless were subject to the testator’s debts in his hands. The third exception relates to the act of limitations, and we are of opinion that no part of the plaintiff’s demand is barred by time, if, in other respects, the action for it was sustainable. About the period of issuing out the writ,-the defendant made acknowledgments to the witness, John Beard, that are amply sufficient to revive the remedy, and prevent the operation of the statute, on that portion of the account which had been standing for more than three years. JUDGMENT REVERSED AND PROCEDENDO AWARDED.