Burnett v. Caldwell , 19 L. Ed. 712 ( 1870 )

76 U.S. 290 (____) 9 Wall. 290

BURNETT
v.
CALDWELL.

Supreme Court of United States.

Mr. Thompson, for the plaintiff in error.

Mr. J.E. Brown submitted an able brief contra.

Mr. Justice SWAYNE delivered the opinion of the court.

This is a writ of error to the District Court of the United States for the Northern District of Georgia. The suit was an action of ejectment, prosecuted by the defendant in error to recover possession of the premises described in his declaration. The view which we take of the case renders it unnecessary to consider several of the exceptions which are found in the record. The facts as they appear, and which are undisputed, are as follows:

Caldwell was in possession, claiming title. On the 26th of January, 1864, he sold to Vliet, who paid him $4000, and executed to him two promissory notes, each for $7000, payable, respectively, on the 1st of April and the 1st of July following, with interest from date. Caldwell at the same time executed to Vliet a title bond in the penal sum of $36,000. It recited the payment of the $4000 and the execution of the notes, and was conditioned that if Vliet should pay the notes at maturity, and Caldwell should thereupon make to him "a good warranty title in fee simple" for the premises, the bond should be void. The bond was silent as to the right of Vliet to occupy the premises, but Caldwell put him in possession. Vliet transferred the bond and delivered possession to Burnett. Nothing having been paid on the notes, and more than three years having expired since the maturity of the one last payable, Caldwell instituted this suit to oust Burnett and recover back possession of the property.

The legal principles which must govern the determination of the case are all well settled. If the contract in such cases be silent as to possession by the vendee, he is not entitled to it.^[*] If the contract stipulates for possession by the vendee, or the vendor puts him in possession, he holds as a licensee. The relation of landlord and tenant does not subsist between the parties. The characteristic feature of that relation is wanting. The vendee pays nothing for the enjoyment of the property. The case comes within the category of a license.^[†] In such cases the vendee cannot dispute the title of the vendor any more than the lessee can question the title of his lessor.^[‡] The assignee of the vendee is as much bound by the estoppel as the vendee himself.^[§] Upon default in payment of any instalment of the purchase-money, the possession becomes tortious, and the vendor may at once bring ejectment.^[†] Ejectment may sometimes be maintained when covenant for the purchase-money could not.^[¶]

In England it is necessary to give notice to quit before bringing ejectment.^[*] In this country, generally, the rule is otherwise.^[†] In the case before us, the question must be decided according to the local law of Georgia. The authorities upon the subject, cited in the brief for the defendant in error, and especially the manuscript case of McHan v. Stansel, decided by the Supreme Court of that State, at the June Term, 1869, and not yet reported, establish the proposition that such notice in this case was not necessary.

The plaintiff's lessor was clearly entitled to recover upon these grounds. This renders it immaterial whether Rogers had or had not a valid title by virtue of the statute of limitations, whether Caldwell had or had not a valid title under the same statute, or a perfect paper title, and whether the deed executed by the trustees of the Rome Female College was valid or not. Resolving all these questions in the negative, the right of the plaintiff's lessor to recover was not affected. The instructions relating to these subjects may, therefore, be laid out of view. In any just view of the subject they could have worked no injury to the plaintiff in error.

The testimony offered as to the amount paid by Burnett to Vliet for the property was irrelevant, and was properly excluded.

In Marlin v. Willink,^[‡] where the leading facts were substantially identical with those upon which the questions before us have arisen, Judge Duncan said: "This is the plainest case in the world." Ejectment was held to have been properly brought by the vendor, and a judgment in his favor was sustained. Whatever relief the plaintiff in error may be entitled to must be sought in equity. He can have none at law.

JUDGMENT AFFIRMED.

NOTES

[*] Suffern v. Townsend, 9 Johnson, 35; Erwin v. Olmsted, 7 Cowen, 229.

[†] Co. Litt. 52, b; Mumford v. Whitney, 15 Wendell, 380; Dolittle v. Eddy, 7 Barbour, S.C. 78; Watkins v. Holman, 16 Peters, 54; Blight's Lessee v. Rochester, 7 Wheaton, 535.

[‡] Whiteside v. Jackson, 1 Wendell, 418; Jackson v. Moncrief, 5 Id. 26; Jackson v. Stewart, 6 Johnson, 34; Hamilton v. Taylor, Little's Select Cases, 444.

[§] Jackson v Walker, 7 Cowen, 637.

[†] 1 Wendell, 418; 5 Id. 26; 7 Cowen, 637, cited supra.

[¶] Wright v. Moore, 21 Wendell, 230.

[*] Right v. Beard, 13 East, 210; Doe v. Jackson, 1 Barnewall & Cresswell, 448.

[†] 7 Cowen, 63; 7 Barbour, S.C. 74, cited supra.

[‡] 7 Sergeant & Rawle, 297.