Walter v. Alexander , 2 Gill 204 ( 1844 )

Dorsey, J.,

delivered the opinion of this court.

The first prayer of the plaintiff is, “that the proceedings in ejectment, given in evidence in this cause, of Merryman’s Lessee vs. Smith, do not vest any title in said Merryman, and are no bar to plaintiff’s right of recovery in this case.” The objection taken to this prayer as being too general, in not sufficiently presenting, according to the act of 1825, c. 117, the point, which the county court are required to decide, we think cannot be sustained. The points, on which the decision of that court were demanded, were, that the proceedings in the ejectment referred to did not vest any title in Merryman, and formed no bar to the plaintiff’s right to recover. Every ground, therefore, which established either of those points, we must assume to have been considered and determined by the county court. It was very properly conceded in the argument, that if these proceedings in ejectment, offered in evidence to shew title in the defendants, were not had under the statute of 4 Geo. 2, c. 28, that the judgments therein rendered, vested no title in the defendant’s wife, and formed no bar to the plaintiffs right to recover. This statute requires, that to render a judgment by default conclusive upon the rights of the tenant, and bar his future recovery of the demised premises, it shall be made appear to the court, where the said suit is depending, by affidavit, that half a years rent was due before the declaration was served, and that no sufficient distress was to be found upon the said demised premises, countervailing the arrears then due, and that the lessor or lessors in ejectment, had power to re-enter; in every such case, the lessor or lessors, in ejectment, shall recover judgment and execution, in the same manner as if the rent in arrear had been legally demanded, and a re-entry made. To give to this judgment the efficacy ascribed to it, it must appear to this court to be a judgment rendered under the statute of 4 Geo. 2; or, in other words, the record must disclose such facts and circumstances, as would justify us in believing or assuming, that in rendering its judgment, the court below designed to exercise the authority conferred on it by the statute. The record, before us, discloses nothing which could warrant us in any such assumption or belief. All the proceedings in ejectment, until long after the judgment, shew it to have been an ordinary case of ejectment, (having no connexion with the statute,) the judgment in which, is conclusive upon no body. Upon what principle, then, can this court be called on, where an affidavit was filed in the case, in vacation, at a different term from that of the judgment; and more than ten months after it was rendered, and which according to the proof was never shown to the county court, to believe or assume, that its judgment was given on the affidavit thus introduced into the cause ? According to the obvious import and design of the statute of 4 Geo. 2, c. 28, we think the affidavit should be filed before the judgment by default is entered, or some time during the term at which it was rendered; so that, before it became absolute, the court may have had an opportunity of inspecting and adopting the affidavit, as the basis of its judgment. That such is the construction of this statute in England, see Adam's on Ejectment 159, and Doe. on Dem. of Hitchings and Another, vs. Lewis 1 Burr. 614.

It has been contended in this case, that after the lapse oí seventeen years, during which the defendants have been in the undisturbed possession of the demised premises, this court ought to presume the filing of an affidavit pursuant to the statute. The proof in this case having so clearly disproved such filing of the affidavit, the court has no ground left for such a presumption to rest on. This case differs essentially from the case above mentioned, of 1 Burr, 614, referred to as warranting the presumption which this court has been called on to make. There, the question arose upon a case stated, in which the proceedings and judgment in ejectment, were stated to have been “under and by virtue of the statute of 4 Geo. 2, c. 28;” and that fact was strongly relied on by the court, which, after an acquiescence in the landlord’s possession, under the judgment of almost twenty years, determined that it was not necessary that the landlord should have produced the affidavit on the trial, in which the proceedings in ejectment were offered as evidence.

We must not be understood as deciding, that to give effect and validity to the judgment of the court, in a proceeding in ejectment, under the 4 of Geo. 2, when judgment is incidentally brought before the court, (as in this case,) as evidence of title, that it must appear upon the face of the proceedings, that all the requisitions of the statute have been complied with; that there is no error in the judgment of the county court, which upon appeal or writ of error would cause its reversal. All that we mean to decide is, that to give to a judgment by default in ejectment, under the statute of 4 Geo. 2, the conclusiveness designed to be imputed to it by the statute, it is necessary that the affidavit should be filed or presented to the court before the judgment is rendered, or some time during the term at which it was given; so that before it became absolute, the court may have had an opportunity of inspecting and adopting the affidavit as the basis of its judgment, and that such judgment, when offered in evidence, as in this case, was sustained by such an affidavit, as satisfied the court before which it was offered in evidence, that the court by which it was rendered, intended it as a judgment under, and in virtue of the statute 4 of Geo., 2, c. 28.

Nor do we mean to say, that it is requisite that the affidavit should appear to have been presented to the court. If filed at the proper time, the court will be presumed to have discharged their duty in relation to it.

The testimony offered on the part of the defendants, of the loose practice sometimes prevailing in the city of Baltimore, of filing the affidavit long after the rendering of the judgment, or as the witnesses state, at any time before the issuing of the writ of habere facias possessionem, can have no influence on the determination of the case before us. The construction of the statute must be the same in every part of the State; and were it otherwise, the practice referred to, is so entirely inconsistent with both the letter and spirit of the statute, that to sanction such a practice would be, pro tanto, to repeal the statute. We think the county court erred in refusing to grant the appellant’s two next prayers; for the reasons we have stated, in the consideration of its refusal to grant his first prayer.

The court below, also erred, in their refusal of the appellant’s fourth prayer; because, from the uncontradicted record evidence in the cause, it could not have worked injustice to the appellees, but might have operated most prejudicially to the rights of appellant. Under the opinion of this court, the proceedings and judgment in ejectment, relied on by the appellees, formed no bar to the plaintifPs recovery, and the jury were not al liberty to find the filing of any other affidavit. And yet, if that prayer had been granted, the jury would have been authorized in finding, that these proceedings in ejectment were a conclusive bar to the rights of the appellant; if they found that the affidavit, no matter at what time, had been submitted to the court, or approved of, or seen by it, or been held by it sufficient, under the said statute of George 2nd; or if the jury found that any other affidavit had been made in the case, no matter when made, or what it might be.

The prayers of the appellant having been rejected by the county court, the appellees prayed the court to direct the jury, that if they should find that the defendant, Sarah, became entitled to the reversion of the ground declared for, as slated in the testimony, and recovered possession, and took, and has ever since held possession thereof, in the year 1824, as shown by the record of recovery given in evidence, and that this action was instituted on the 19th day of April 1841, then the plaintiff is not entitled to recover: which prayer was granted, and in doing so, the county court erred, for the reasons stated by us in our examination of the courts refusal of the appellant’s first prayer. It also erred for another reason. It called on the court, to submit to the finding of the jury, a faet of which there was no testimony; but which was conclusively disproved by the testimony of both parties. It required the court to direct the jury, that if they should find that the defendant, Sarah, became entitled to the reversion of the ground, declared for, &c., then the plaintiff is not entitled to recover. Both the lease from Daniel Bowley to Solomon Efting, and the deed for the ground rent, and reversion from Daniel Bowley to John Merryman, under whom the defendant Sarah claims title, shew, that she was not entitled to the reversion of the lot of ground for which the ejectment was brought; but for a lot of different and smaller dimensions. And it is somewhat remarkable, that the alleged recovery of the lot of ground, by Sarah, the defendant in the action of ejectment under the statute of 4 Geo. 2, c. 28, was not of the lot leased, as aforesaid, by Daniel Bowley, and to the ground rent and reversion of which she was entitled; but of a lot of larger dimensions.

Dissenting from the county court, in its refusals to grant all the prayers of the plaintiff, and in its granting of the defendants prayer, we reverse its judgment.

JUDGMENT REVERSED AND PROCEDENDO ISSUED.