Williams v. Brunton

The Opinion of the Court was delivered by Koerner, J. This was an action of ejectment, originally brought in the Adams Circuit Court, by the plaintiff against the defendant, Brunton. The declaration was served and filed on May 7th, 1845. The usual rule to plead was entered upon filing the declaration. Afterwards, on the 19th day of September, 1845,- a judgment was entered against the defendant, Brunton, by default, and a writ of possession was awarded. Afterwards, on the 25th day of April, 1846, O. H. Browning, as the attorney of the defendant, John P. King, filed his (said Browning’s) affidavit and thereupon entered his motion to set aside the aforesaid judgment, and to grant a nfew trial. The said affidavit as in the words and figures following, to wit; “O. H. Browning, being first duly sworn, depo'seth and saith, that he is one of the members of the firm of Browning & Bushnell; that said Browning & Bushnell were attorneys of John P. King to foreclose a mortgage executed to him by John M. Walker for <f 3,000, dated the 11th day of October, A. D. 1837) and drawing 12 per cent, interest. Said mortgage, among other lands, embraced the S. E. 29, 1 S., 7 W., in Adams county*, and was duly executed and acknowledged by ‘said Walker, and recorded In the Recorder’s office of said Adams county, on the 14th day of July, A. D. 1840. Afterwards, to wit, on the first day of April, 1842, said Walker conveyed said quarter section of land to the above named Thomas Brunton. That afterwards, to wit, at the April term 1844, of the Adams Circuit Court, said King -foreclosed his aforesaid mortgage for the sum of $3,708-70, and costs of suit, and subsequently sued out execution upon said judgment to cause said Tand to be sold; that, after said execution was so sued out, said Brunton called on this affiant, represented to him that he, said Brunton, had purchased said land from said Walker after the execution of the mortgage aforesaid; had taken possession of it under his said purchase, and made improvements thereon, and feared he would Suffer loss by said mortgage, unless this affiant would delay the sale to enable him, said Brunton, to make some arrangement with said Walker. Affiant thereupon informed said Bruñí on that he would not sell said piece of land until he had disposed of all the other property embraced in such mortgage; and said Brunton, at the same time, agreed that he would neither do, suffer or permit any thing to encumber the title of the said land, but would, in good faith, hold the same subject to said mortgage; affiant thereupon caused said execution to be returned without having said land sold.” It then proceeds to state the commencement of this suit and the judgment, as before stated; that Brunton "gave no notice to affiant of said suit; that he had no knowledge of at till after said judgment was entered; that he believed Brunton kept from him and Mr. Bushnell all knowledge of it designedly, to prevent them applying to defend the same; that King lives in Georgia; has never been in Illinois, and does not know the foregoing facts; that affiant and his partner are the attorneys of King, and authorized to manage and attend to his interests herein; that said mortgage has not been satisfied, &c. It concludes by praying that judgment be set aside, new trial granted, and that said King might be, as defendant in the place of said Brunton, allowed to defend jointly with him, or to use his mame for the purpose of defence. This motion was allowed by the Court, and the said King was allowed to defend the suit, and to plead to the declaration in the name of Brunton, and also in the name of himself; whereupon he pleaded accordingly. The plaintiff excepted to the opinion of the Court: Afterwards on the 1st day of October, 1846, it was ordered on defendant’s motion, that the plaintiff join issue on said pleas, which the plaintiff in open Court declined doing. A jury was then impaneled who rendered a verdict of not guilty, whereupon judgment was entered against the plaintiff, who has appealed from this judgment to this Court. Two errors are assigned upon this record: 1st. The Court erred in setting aside the judgment against the defendant, Brunton, and in granting a new trial, and permitting the said King to defend the action. 2d. The Court erred in impaneling a jury to try an issue where none was joined, and in entering judgment upon the verdict. Under the first assignment of error, the appellant’s counsel makes the following points: 1. There was no privity between King and Brunton, either of contract or of title; 2. If there was privity whilst the mortgage was in force, it ceased upon foreclosure, the mortgage having become extinguished and merged in the decree; 3. The affidavit upon which the motion was founded shows no sufficient reason for setting aside the judgment, it neither averring that they had title, nor denying that plaintiff had title, nor making any pretence of collusion between plaintiff and defendant; and 4. Allowing that King had shown himself entitled to defend, yet the judgment against Brunton ought to have stood. In regard to the first point presented, it is a well established rule, that in an action of ejectment, the landlord may appear and defend the cause in the name of the tenant, or in his own name, and, also, that where a tenant, from negligence or fraud, has omitted to appear himself, or to give the landlord the neces'sary notice, the Courts will set aside a judgment by default against the tenant, upon proper affidavit being made by the landlord. This rule of practice, adopted in the English Courts at an early period, has obtained express legislative sanction, by Statute 11 Geo. I, Ch. 19, § 13, in that country, and by similar Statutes passed in many States of the Union. It has been expressly recognized by this Court, in the case of Thompson v. Schuyler, 2 Gilm. 271. Some difficulty, however, has arisen respecting the meaning of the word “landlord,” and as to what persons maybe considered as occupying the relation of landlord for the purposes of claiming this right of defence. Lord Mansfield, in the case of Fairclaim v. Shamtitle, (Burr. 1290,) has given a very luminous exposition regarding the proper construction of the word “landlord,” which is given in full in Adams on Ejectment, 258. The rule, stated more briefly, amounts to this: that a person, claiming to be let in to defend in ejectment, must show his title is connected to and consistent with the possession of the' occupant. 1 Bibb, 128; 1 Wend. 316. Now, in the present case, it is manifest that the title of King is connected to and consistent with the title of Brunton. Walker, as appears from the affidavit of O. H. Browning, the attorney of King, on the 11th day of October, 1837, had executed a mortgage, embracing the land in question, to said King, which was recorded on the 14th of July, 1840. Subsequently, on the 1st of April, 1842, Walker conveyed the said land to defendant, Brunton. Both, therefore, claim under Walker, the one the legal estate, the other in Fact the equity of redemption only. Their respective titles, then, are perfectly consistent. After the condition broken, King, the mortgagee, had an undoubted right to enter as against Walker, and also against his assignee, Brunton. In contera.-' plation of law, Brunton was King’s tenant at sufferance, or at least sustained towards him the peculiar relation which exists between the mortgagor and "mortgagee. King could have succeeded-in obtaining possession against Walker or Brunton without difficulty, as neither of'them could have disputed his title, while, in a controversy with the plaintiff, Williams, or with any other stranger, he would have had to show title in Walker. He was, then, much interested in occupying the position of defendant. It would not be difficult to show that, besides a privity in interest between King and Brunton, there existed also a privity of contract between them, but being clear on the first point, we r.efrain from enlarging on this last. There are numerous decisions in support of the doctrine, that a mortgagee in or out of possession may be permitted to defend with the tenant in possession, to a few of which I will refer. In 11 Johns. 407, Jackson v. Stiles, it was decided that a mortgagee in possession may be let in to defend in an action of ejectment. In 8 T. R. 645-,Doe d. Tilyard v. Cooper, a case where it did not appear that the mortgagee had previously received any.rents, it was held that a mortgagee may be made defendant with the mortgagor. In Doe d. Pearson, 6 Bing. 613, a mortgagee was not permitted to defend, on the ground that he did not appear to have any interest in the result of that particular suit. In 17 Johns. 112, Jackson d. Clark v. Babcock, it was decided that the assignee of a mortgagee may be let in to defend. I also refer generally to 1 Bow. Mortg. 203, note G., and Adams on Ejectment,. 255, 261. It is said, however, that the relation previously existing between King and Brunton ceased, a judgment of foreclosure having been obtained by King. It is true that a judgment or decree may, for some purposes, beconsidered as an extinction of the original cause of action; for instance, for the purpose of regulating the interest on money to which a party is entitled before final satisfaction of the debt, as was the case in 3 Scam. 263, to which authority the appellant has directed our attention. But it is equally true, that for many other purposes, as for the ascertaining of priority of liens for instance, the principle of extinction or merger finds no application. It is in our opinion a total misapprehension of the doctrine on mortgages, to contend that a mortgagee who, instead of foreclosing strictly, which would at once have given him the indefeasible legal estate, applies for a sale of the lands so as to have his debt satisfied and noi more, the mortgagor being entitled to the surplus, if any,. and who obtains a judgment or a decr.ee, should thereby wholly lose the benefits of the title which he had by the mortgage. We consider a judgment or decree, aad a subsequent purchase and obtaining of deed for the land from the Master or sheriff, as being connected with and as being in aid of'.his. original title. A subsequent title so obtained is clearly consistent with the first tithe. It is hardly necessary to refer to authorities in support of this proposition. The case cited by the counsel for appellees, Den v. Stockton, 7 Halst. 322, we consider perfectly in point. For the general doctrine of merger, 3 Cowen, 79, 11 Ohio, 252, 2 Johns. 20,1 Hill’s (N. Y.)R. 107, 2 Cowen, 284, may be cited. Passing to the next point under the first assignment of error, that the affidavit was insufficient,, as it neither avers that King had title or Williams has none, and as it does not pretend to charge collusion between the plaintiff and the defendant Brunton, we are of opinion that the objection is not well founded.- Our statute concerning the action of ejectment does not specially provide for .cases of landlords and tenants and,’ other persons interested applying to be let in to defend, but speaks of cases only where the party, his assigns, or those claiming under him move to set aside defaults. Where the statute is silent, the practice and rules of the Common Law are applicable, and lest there should be any doubt upon this point, the first section of the Act, Rev. Stat. ch. 36, (Laws: of 1839, —,) which provides “that the action of ejectment shall be retained, and may be brought in the cases and the manner heretofore accustomed, subject to the provisions hereinafter contained.” Of course all the incidents to this action at Common Law, and the mode of proceeding throughout is retained, except where the,statute makes an express alteration. The affidavit clearly shows that King had some title, which he was interested to protect; it would be hard, indeed, if any person could be required to swear that he had a title to the land paramount to any other that might be set up. It would have been equally improper to have required him to state that Williams had none, as he is not presumed, before a-legal investigation-has settled.it, to know a stranger’s title. The affidavit álso.shows-sufficient facts to induce the belief that -Brunton had acted in bad faith, which was sufficient to authorize, the Court to. permit King to come in as a co-defendant. As to the last'point made under the first assignment, that the judgment as to Brunton ought to have stood, we deem it also untenable. It appears from an examination of the subject, that under the English practice before the Statute of George I., which has been already adverted to? the landlord who was admitted to defend, had a right to have the judgment against the casual ejector set 'aside. Ad. Eject. 255, 257. The statute afterwards provided- that in such, cases Courts may stay the execution against the casual ejector. We think that one or the other-may.be .done in.the "discretion of the Court. We-cannot perceive how, in- any view of -the .case, the plaintiff can he ■ prejudiced, as we have before seen that the co-defendant cannot defend himself under a title inconsistent with that of the original defendant. *. O In fact, he must' stand substantially upon the same title as the latter, doe's. If'he suc'ceéd' against the'plaintiff, .it is also a victory of the original defendant: The stay of execution must then -remain -permanent and the judgment can have no force and effect. If the co-defendant fails, .the title of the original-defendant falls with -it, and the judgment equally concludes both. The" decision of the (dourt was-corre.ct in -another view of the matter. ' King, being by law a proper- defendant,' or party, as shown before,- and having, become identified with Brunton, he had'a right, at--.any. time within' a year, to have the judgment vacated, upon payment of- posts, 'under the express' provision of our.Statute. Rev. Slat. Ch. 36, § 31. "T-he objection .under'the second assignment of error, however, is well, taken! After King had been permitted to plead, for Brunton and-.for himself,- the plaintiff failed to join issue on the pleas! The - defendant’s counsel then moved the Court to order the plaintiff to join issue,, which -motion was allowed. The plaintiff, in proper person, declined in Court to join issue, notwithstanding which a jury was sworn and a verdict rendered against plaintiff. The record, it is true, is silent as to whether the. plaintiff took any further action in the case or not. If he had, then the mere omission of adding what is technically called the similiter would be no ground.of error. It would be his own negligence, of which he could not complain. Waters v. Simpson, 2 Gilm. 570. But it is an irresistible inference from this record, that he did not wish to prosecute his suit any farther. His declining to take issue on pleas which présented a full defence to his action amounts to a discontinuance. The Court ought to have dismissed the case for want of prosecution. This is the correct practice, as dictated by the reason of the thing, and laid down in the books. See Stephen on Pl. 109; 1 Tidd, 472; 2 do. 718, 727, 925. For this error, in trying the case by jury, and receiving a verdict against the plaintiff, when he had virtually discontinued his case, the judgment below must be reversed. As it is manifest, however, from the record, what judgment ought to have been rendered below, this Court will give such judgment here, without remanding the cause. The judgment of the Circuit Court is reversed, with the costs of this appeal, and the plaintiff below having failed to prosecute his suit, it is ordered and adjudged that the said suit be dismissed, and that the defendants recover from and of the said plaintiff their costs in this behalf expended in the Court below, and have execution thereof. Judgment reversed.