US SUPREME COURT DECISIONS

1. A person in possession of land who takes a lease from another who has bought and claims the land leased is estopped from denying the title of such other person or showing that such person was but trustee of the land for him,

2. The Act of Congress of July 2, 1864, which says that there shall be no exclusion of any witness in civil actions because he is a party to or interested in the issue tried does not give capacity to a wife to testify in favor of her husband.

3. A writing bearing even date with a paper having the form of and purporting to be the last will and testament of the party, and disposing clearly and absolutely of all his estate -- which writing refers to the paper as the party's "will" and speaks of itself as "a letter" written for the information and government of the executors, so far only as they see fit to carry out the testator's present views and wishes -- has no testamentary obligation, even though it direct the persons to whom it is written to allow such and such persons to have specific benefits named in specific items of property.

4. Evidence which may divert the attention of the jury from the real issue -- that is to say, immaterial evidence -- should be kept from the jury.

5. The improper exclusion of a record is not error when the party offering it has proved in another way every fact which the record, if it had been admitted, would prove.

6. Prayers for instructions which overlook facts of which there is evidence or which assume as fact that of which there is no evidence are properly refused.

7. The question of waiver of a notice to quit is always in part a question of intent, and there can be no intent to waive notice when the act relied on as a waiver has been the act of the party's agent, unknown to the principal and unauthorized by him.

8. An assignment of error which alleges simply that the court below erred in giving the instructions which were given to the jury in lieu of the instructions asked for -- it not being stated in what the error consisted or in what part of the charge it is -- is an insufficient assignment under the 21st Rule of court.

9. Where one writes to a man's wife (there being a relationship by blood between the party writing and the wife) proposing to her to occupy a certain farm on which she and her husband were then living, and to pay a certain rent therefor, which offer she accepts, and there is nothing in the correspondence beyond the fact that the property is offered to the wife and that the wife accepts it to infer a purpose to give it to her to the exclusion of her husband, the husband is not excluded. The lease enures to his benefit and brings him into the relation of a tenant to the lessors. chanrobles.com-red

Page 85 U. S. 437

Error to the Circuit Court for the District of West Virginia, in which court P. C. Brooks brought ejectment against Robert Lucas for a farm. The case was thus:

The farm, in 1844, was owned by Edward Lucas, the father of this Robert Lucas. In the year mentioned, one Towner recovered three judgments against Edward Lucas, which became liens on the farm. In 1848, Edward Lucas, being embarrassed, conveyed the farm with general warranty to his son, the said Robert.

In 1858, Towner (Edward Lucas being now dead) filed a bill against his executor, against Robert Lucas, purchaser of the farm, and other heirs, to have satisfaction. Robert Lucas answered, admitting the liens and his purchase of the farm from his father, alleging that it was subject to other liens by judgments and deeds of trust older than these of Towner, and stating that to enable him to make the purchase, he had borrowed $9,000 from one R. D. Shepherd (whose niece Catharine he had married), and paid the same upon such prior liens; that these were assigned and now held by the said Shepherd as security for the loan, and should be paid before the liens of the complainant. The court, after various references and reports, ordered a sale of the farm, and it was sold, Shepherd, who in the meantime had become the owner of all the liens reported by the master as existing, becoming the purchaser and paying only the costs. Lucas and his wife, the niece, as already said, of Shepherd, were at this time in possession.

Shepherd thereupon, by writing dated August 30, 1859, agreed that Lucas (nothing being said about the wife) should continue on the land as his tenant until the 1st of April, 1861, at a rent of $600.

Shepherd died in November, 1865. His will, proved on the 12th of March following, ran thus:

"First. Having given property and money at different times to my family connections, the greater part of which stands charged on my books under the head of an account there opened and called 'Family Accounts,' I will and bequeath to each

Page 85 U. S. 438

therein named whatever may have been so given and charged, or anything that I may hereafter give during my lifetime."

"Second. I will and bequeath to my daughter, Ellen Brooks, and to her two sons, Peter C. Brooks . . . and Shepherd Brooks . . . all my property, real, personal, and mixed, . . . giving one-third to each, and I direct that they may be put into possession of it without delay."

"Third. I appoint my said two grandsons, P. C. Brooks and S. Brooks, executors of this my will, giving them seizin of my entire estate."

Accompanying this will, and of the same date with it, was a sealed letter of the testator to his daughter and two grandsons named, in which he says:

"I have this day made my will, in original and duplicate, one copy with this letter deposited with you, . . . but write this letter for your information and government so far only as you may see fit to carry out my present views and wishes. Circumstances frequently change so as to make what was proper and expedient at one time the reverse at another time. I therefore rely on your doing what is right, keeping in view what you believe my wishes would be were I living."

He mentions that a brother of his, named James, had died in 1837, with debts exceeding half a million of dollars; that he, the writer, had wound up his estate, and after years of toil and anxiety had worked through and saved himself from ruin; that he had derived no benefit whatever from his said brother's estate, and had most strictly complied with all the requests which his brother had made as to the residue of it, after paying certain debts.

He says further:

"I take very little interest in any of my family connections here except Henry Shepherd and J. H. Shepherd, my two nephews; for all the others, of both sexes, I have done as much as I ever wish done for them, and more than some of them deserve. Should ever Henry or James require aid or assistance, give it to them in such way as you may deem best."

And after some expression of regard for a young man whom he requests his executors to befriend, and a request chanrobles.com-red

Page 85 U. S. 439

that a ship, which was then named Montgomery, should be called Alexander Hamilton, a great admiration for which statesman he avows, he adds:

"As to the plantation in this county, belonging to me and known as the Lucas farm, allow Catharine Lucas, my niece, to live upon it during her lifetime on the condition that she pay you a small rent of three or four percent on its cost, which is $24,000, but don't sell it unless you get the cost. Then give my said niece $10,000 out of the proceeds, well secured on her children."

Though the lease by Shepherd to Lucas, mentioned some distance back, was by its terms limited as there stated to the 1st of April, 1861, Lucas and his wife remained on the farm after that time, and were living on it when Shepherd died.

After that event, P. C. and S. Brooks, named by him, R. D. Shepherd, as his executors, though the will was not yet proved, wrote to Mrs. Lucas as follows:

"BOSTON, MASS., November 29, 1865"

"DEAR MADAM: As executors of the estate of Mr. R. D. Shepherd, we address you regarding the disposition of the farm belonging to him, on which you live. We have two propositions to make to you, either of which you can accept. First, to occupy the place and pay therefor to us, or our agent, the yearly rent of $600 on the 1st of December of each year, the lease to begin January 1, 1866. If the rent should be increased or any other change made, you are to receive one year's notice of it in advance; you are to make all repairs and to pay all expenses on the property excepting taxes, not allowing it to deteriorate. Second, the place to be sold as soon as convenient, to be paid for one-half in cash, to come to us; the other half to remain on mortgage, which will be put in trust for your benefit during your life and go to your children outright at your death. Meanwhile, until the sale, and as long as you occupy the place, we expect you to pay rent at the rate of $600 per annum, beginning January 1, 1866."

"Yours &c.,"

"P. C. BROOKS"

"SHEPHERD BROOKS."

chanrobles.com-red

Page 85 U. S. 440

To this Mrs. Lucas replied:

"ELMWOOD, VA., December 11, 1865"

"MESSRS. P. C. AND S. BROOKS."

"DEAR SIRS: Your letter of November 29th was received the 2d instant. I have concluded to accept of your first proposition -- that is, rent this farm at $600 a year. As all property is rented here the 1st of April, I wish to make one request, which is to change the date. The rent to be paid the 1st of January, the lease to begin the 1st of April. My reason for making this request is, in case I should be required to leave the farm, I would then have time to find another home."

"Yours &c.,"

"CATHARINE LUCAS"

Subsequently, the commencement of the lease was by mutual agreement fixed for the 1st of April, instead of the 1st of January. After this Mrs. Lucas continued to pay the stipulated rent until 1868, but the rent subsequent to that time was withheld. On the 19th of May, 1866, Mrs. Ellen Brooks and Shepherd Brooks, describing themselves as, with the said P. C. Brooks, equal and only devisees of R. D. Shepherd, conveyed to P. C. Brooks all their right, title, and interest in the land, to hold to him in fee simple; and on the 15th of February, 1869, he gave to Lucas and his wife notice that he terminated the lease on the 1st day of April, 1870, and required them to surrender possession of the land on that day. They declining to do this, P. C. Brooks brought an action of ejectment in the court below to recover it.

The defense was that the possession and right of possession were in the defendant's wife, as her separate estate, after the expiration of Mr. Shepherd's lease to him -- that is, after April 1, 1861. For this purpose, the defendant offered in evidence another lease from Shepherd to his wife for one year from April 1, 1861, at the yearly rent of $900, and offered proof that this was followed by the lease of 1865, already mentioned. This evidence was received.

The defendant then offered the deposition of his wife to chanrobles.com-red

Page 85 U. S. 441

prove a part of his case, contending that it was admissible under the Act of Congress of July 2, 1864, [Footnote 1] which enacts that:

"In courts of the United States, there shall be no exclusion of any witness . . . in civil actions because he is a party to, or interested in, the issue tried."

The court excluded the deposition, and its action herein was the first error assigned.

He then offered in evidence certain depositions which tended to prove the following facts, viz., that James Shepherd (the brother already referred to of R. D. Shepherd) died unmarried in 1837, leaving a large estate and leaving also several brothers and sisters, one of the brothers being father of the defendant's wife; that R. D. Shepherd was in affluent circumstances and a large creditor of the decedent, whilst the other brothers and sisters were poor; that having great confidence in the honor and generosity of his brother R. D. Shepherd, and to secure his debts to him, James Shepherd devised all his estate to his rich brother R. D. Shepherd; that at the same time he left therewith a sealed letter directed to this brother directing that out of his estate, after the payment of his debts, his sisters should receive certain sums named, and his nephews and nieces the residue; that the estate (probably by reason of good management upon the part of R. D. Shepherd) yielded a considerable sum after paying the debts, and that therefore R. D. Shepherd paid the amounts to his sisters as directed in the sealed letter, and for a time aided certain of his brothers and nephews and nieces by distribution of the surplus by virtue of the will and sealed letter aforesaid.

These depositions tended to prove also by admissions of R. D. Shepherd, that he bought the land in controversy for the defendant's wife, and as her separate property; that it was first purchased in 1848 from the father of the defendant in the name of the defendant, but in equity for his wife; chanrobles.com-red

Page 85 U. S. 442

that when it was purchased in 1859, in the name of R. D. Shepherd, it was purchased for her benefit.

The plaintiff objected to the reception of this testimony,

"and the court sustained the objection so far as it tended to prove that Catharine Lucas derived title to the property in controversy under the will of R. D. Shepherd and so far as it referred to conversations and other verbal statements held between said witnesses and R. D. Shepherd concerning his purposes as to said farm, to which ruling the defendant excepted."

This action of the court was the ground of the defendant's second assignment of error.

The defendant, for the same purpose of showing the interest of his wife in the land and the character of their occupancy, offered in evidence the letter already referred to, bearing even date with the will of R. D. Shepherd, written by him, and addressed to the devisees in his will, which the court permitted to be read in evidence only for the purpose of showing the intention of the executors in executing the lease to Catharine Lucas, which restriction of it the defendant assigned as a third error.

The defendant then, for the purpose last stated, and to show the recognition of the plaintiff that his wife had and controlled the possession of the farm, by the service of a notice upon her the year previous to the one given in evidence by the plaintiff, and a subsequent waiver thereof, offered in evidence a transcript of a record from the Circuit Court of Jefferson County, duly certified, in a proceeding in forcible detainer in the case of P. C. Brooks v. R. A. Lucas, which contained as the foundation of the suit a notice of the plaintiff upon the defendant's wife, dated, March 16, 1867, and giving notice to her that she would be required to surrender possession of the premises and remove therefrom on the 1st of April, 1868. To this transcript the plaintiff objected, and the objection was sustained and the transcript excluded from the jury. The defendant excepted, this being his fourth assignment of error.

The defendant then offered in evidence a transcript of a chanrobles.com-red

Page 85 U. S. 443

distress warrant (issued upon the affidavit of W. A. Chapline, representing himself to be agent of P. C. Brooks in the matter), for rent sworn to be due for the year ending April 1, 1871, a distress accordingly on the defendant's property, and a replevin and forthcoming bond by the defendant. The transcript was certified by the deputy clerk of the court, and was not under the court seal. It was therefore objected to and excluded as not properly certified. To this exclusion the defendant excepted, the same being made his fifth assignment of error.

The defendant then proved orally the same thing which the transcript if received would have shown, but his witness (Chapline himself) testified also that he had not been authorized by Brooks to issue the said distress warrant.

The defendant also gave in evidence (to show that the legal title was not in the plaintiff), two deeds of trust with the bonds secured by them, executed by Edward Lucas and his wife, whilst he was the owner of the land, one to R. H. Lee, dated in February, 1847, in trust for Peter Saurwien, the other to H. Berry, dated in 1843, to secure said bonds of him the said Edward Lucas, to Saurwien and Douglass, which had been assigned by them to Robert Lucas, and by him to J. H. Shepherd, trustee, for the sole and separate use of Catharine Lucas, wife of the said Robert.

The testimony being closed, the defendant asked for four separate instructions:

"1st. That the distress warrant sued out by Chapline, as agent of the plaintiff, for rent claimed as due for the year ending April, 1871, levied as it was on the property of the defendant, who had given a forthcoming bond, and being still pending, constituted a waiver of the notice to quit, and therefore that the defendant was entitled to a verdict."

"2d. That no expression of disapprobation by the plaintiff or his attorney of the act of the agent in issuing the distress warrant could defeat its operation as a waiver of the notice to quit, while the proceedings on the warrant were pending, and so long as the plaintiff held the forthcoming bond for the property distrained. "

Page 85 U. S. 444

"3d. That if there was an outstanding deed of trust, made February 18, 1847, conveying the legal title to the farm in question to R. H. Lee, in trust for Peter Saurwein, and if neither he nor the cestui que trust, nor anyone entitled to receive payment of said debt so secured, were made parties to the suit of Towner v. Lucas, executor, and others, and if the said outstanding lien was of older date than the lien of Towner's judgment, and if the said first-mentioned lien was still subsisting and unpaid, they would find for the defendant."

"4th. That if the debts secured by the deeds of trust from Edward Lucas to R. H. Lee and H. Berry, were assigned to J. H. Shepherd as trustee for Catharine Lucas, and if the said R. D. Shepherd was not the owner of the said debts, at the time of the sale under the decree of the Circuit Court of Jefferson County, that proceeding could not defeat the title of the trustees to the deeds of trust to secure their payment, although they may have been audited and credited to him in that proceeding, unless the said J. H. Shepherd and Catharine Lucas were parties to that proceeding."

The court, on its own motion, in lieu of instructions requested, instructed the jury thus:

"The will of R. D. Shepherd grants the land in controversy to the three devisees and legatees, Ellen Brooks, P. C. Brooks, and Shepherd Brooks, and the sealed letter accompanying said will in no wise alters or modifies it, and creates no new estate in anyone, and it having been produced at the instance of the defendants, and by them offered in evidence, they are bound by its contents, and are not permitted to impeach the correctness of its statements."

"The letter of P. C. Brooks and Shepherd Brooks, addressed to Mrs. Lucas, the wife of the defendant in this cause, and her reply, and the subsequent agreement by letters changing the time of the commencement of the lease from the 1st of January to the 1st of April, as well as the time of the payment of the rents from the 1st day of January to the 1st of December, constitutes a lease of the premises to her by them, which she may take, but being a married woman, by operation of law, the lease becomes the absolute property of her husband, and thereby creates the relation of landlord and tenant between him and the lessors; and the fact that no particular time is mentioned in the

Page 85 U. S. 445

contract of lease, when such relation should cease between the parties, taken in connection with the fact that the plaintiffs reserved in the contract the right to increase the rent thereafter or to make other changes in it upon giving one year's notice creates a tenancy from year to year, which may be terminated upon one year's notice as prescribed by said contract of lease."

"The relation of landlord and tenant having been established, as set forth in the preceding instruction, the tenant is estopped from denying his landlord's title."

"That the defendant was in possession of the same at the time that the testator, R. D. Shepherd, became to purchaser under the decree of the Circuit Court of Jefferson County, at the suit of Towner v. Lucas, executor, does not warrant the defendant, under the circumstances of this case, in disclaiming his landlord's title."

"Before the plaintiff can recover, the jury must be satisfied that the notice required by the contract of lease was given, and, if given by the plaintiff, and there was afterwards a distress warrant sued out to recover rent due and in arrear for the leased premises, in favor of the plaintiff by his agent Chapline, the presumption of law would be that it was sued out with the assent of the plaintiff, in which event he could not maintain this action unless the evidence satisfies the jury that the agent Chapline exceeded his authority in suing out such warrant, acting without the knowledge or consent of his principal, after his principal, the plaintiff, had, by notice, according to the contract of lease, terminated the tenancy, in which event he would be entitled to recover."

The record adds:

"To which instructions the defendant excepted."

The instructions were assigned as the seventh error. chanrobles.com-red

Page 85 U. S. 451