Jackson ex dem. Harris v. Murray — 1 Cow. 156

Majority

p. 156

Jackson, ex dem. Harris and others, against Murray and others. The Same against Frary and M’Dowell.

Headnote

In ejectment, it is generally allowed, of course, to amend, by inserting a new demise, where the proposed lessor has a subsisting ■ title.

Otherwise, "where the statute of limitations have attached.

And where the action was for a military lot, the defendants being bona Jide possessors, and the effect would have been to defeat the operation of the statutes passed April 5, 1803, (sess. 26, ch. 88, 3 Webster, 399.) and afterwards in 1813, (sess. 36, .ch. 80, s. 4, 1 Rí L 304,) for their protection, the amendmentwas refused.

For such an amendment. would be orpávalent to a pew action, with a rule that it should overreach the statute.

Ejectment, for lot Jio. 50, in Meniz, in Cayuga county. This lot was patented to Callaghan, a soldier, who died previous to March 27th, 1783. The cause had been once noticed for trial. The lessors claim title under the soldier’s sister and heir at law. In their chain of title, there is a deed from the Sheriff of Cayuga, to S. Dill, who purchased the lot at Sheriff’s sale, as the agent of Harris, one of the lessors, and a deed from Dill to Harris. When this latter deed was executed, some, or one of the defendants, were in possession, claiming title to the lot; though such title has never been placed on record. The defendants were bona fide possessors, at the time of suit brought, claiming under purchases, or contracts for purchase. DilPs name was not. inserted as one of the lessors. And

J. Porter, now moved to add a demise from him.

J. Platt, contra,

said it was too late to move for the addition of a new demise, after the cause had been noticed for trial. Another objection is, that Dill has not "a subsisting title; which is certainly necessary in one applying to be runde a lessor. In Jackson v. Richmond, ( 4 John. Rep. 483 ,) the Court say: “ No person is to be made a lessor, who has no claim or pretence to a subsisting title or interest in the premises. If any person, who has once had the title, is to be made lessor, the burthen of deducing a title from him is taken from the plaintiff and thrown on the tenant, which would be unreasonable.” Dill has parted with all his interest to Harris ; and he is estopped from saying otherwise, though third persons may object, that nothing passed by his conveyance.

But the great and decisive objection to a new demise, is this: the defendants were bona fide purchasers., As such, they come within the statute, (sess. 36, ch. 80, s. 2,4, 1 R. L. 304-5,) intended to protect them against these lessors. It was universally supposed, for several years after'

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xhe revolution, that when the soldier died previous to the date of the patent, it would enure to the benefit of his heirs. The statute of April 5th, 1803,^[1] was passed in confirmation of this idea. Here the soldier died previous to the time mentioned in the act, viz. March 91th, 1783, and the title vests by the patent. In the intermediate time, our statute of descents was passed.^[2] By this act, the descent of the lot is regulated.^[3] Thus, the unsettled state of the titles to these military lots, induced the statute of 1813, (1 R. L. 305, s. 4) requiring all actions therefor to be brought before the 1st day of January, 1823. The Court should give to this statute its full and complete effect. The plaintiff claims under the dead soldier. This is the very case contemplated by the act. The effect of the amendment sought, is to institute a new suit. It goes to a new source of title, in new parties, and a change of rights. We have vested absolute rights under the statute, as fully and entirely so, as if Dill and all these lessors had conveyed to us. These rights cannot be divested by an original action ; nor should they be indirectly, by adding a new demise, and giving it a relation which overreaches our rights, by incorporating it into an old action.

Porter, in reply.

True, the defendants are lona jide .claimants; but, for aught that appears, the persons under whom they claim, came into possession without colour of title, and are therefore to be regarded as mere squatters. It is the uniform practice, in the action of ejectment, to amend by inserting a new demise, notwithstanding the lapse of years, and at almost any distance of time after the action is commenced. (Doe v. Pilkington & Russell, Burr. 2447. Lyon v. Burtis et al. 18 John. 510 .) If, as admitted, the deed from Dill is inoperative, then the title is in him : and so arc the cases. If a person out of possession, conveys land held adversely, such conveyance is void ; but the title remains in the grantor, so as to enable him to bring ejectment. (Williams v. Jackson, ex dem. Tibbets et al. 5 John. Rep. 489 .) And if hé has a mere equitable title, will not the Court allow him to be introduced as a lessor, in furtherance

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of justice ? It is said that this is equivalent to the commencement of a new suit. Far from it. We commenced our suit in good faith, and within the proper time ; and we claim the use of DilPs name, merely to sustain our real interests. This is promoting the justice of the case, not a lawless interference with vested rights.

The addition of a new demise is, generally, a matter of course, where the proposed lessor has a subsisting title. (Jackson, ex dem. Finch et al. v. Kough, 1 Caines, 251.), But the defendants are bona fide possessors of a military lot. For the recovery of such a lot the statute declares that the action must have been brought before the 1st day of January, 1823, and be prosecuted to eifect without wilful delay, or the person claiming title shall be forever thereafter barred from recovering. The defendants are actual settlers upon the land under colour of bona fide purchases ; and there is no dispute that they are within the purview of this act of limitation.

It seems to us, that by allowing this amendment, we are indirectly depriving these defendants of all benefit under the act. The title passes to Dill: he releases to Harris, while the lot was possessed adversely by another. No title passed by this release, and Dill might have had ejectment. To allow this amendment, would be to introduce a new cause of action. It is like allowing a declaration to be served de novo, and ordering it to stand nunc pro tunc. The rule is well established, and has often been acted upon in the English Courts, that where the statute of limitations has attached, such an amendment will not be allowed. In the case of Goff, q. t. v. Popplewell et al. (2 T. R. 707-8,) the Court say, that “ they would not in their discretion permit the proposed amendments to be made, which would, in effect, arnount to a permission to bring another action, to which otherwise the defendants might plead the statute of limitations.,’1

That was a qui tam action upon the statute of usury ; but the Court said, “ there was no difference between civil and penal actions, as to amendments at common law, while all was in paper.” In Steel, q. t. v. Sowerby, (6 T. R, 171) Ihe

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same point was decided; and though it was ruled otherwise in Cross v. Kay, (6 T. R. 543) and the former decisions are placed on the ground of great delay in the plaintiff to prosecute his suit; yet Lawrence, J. says, “ if the amendment prayed for had gone the length of introducing a new charge against the defendant, I should have thought it came too late, on account of the statute of limitations.” In the case of Maddock, q. t. v. Hammet et al. (7 T. R. 51) this question again came up, and the Court granted the amendment, saying they did this, “ though the time limited for bringing a new action had expired; in as much as the amendment prayed for was not to introduce a new substantive cause of action.” And in the case of Low, q. t. v. Little, ( 17 John. 346 ) a majority of the Court, in a similar case, inclined against an amendment, though there had been no delay in prosecuting the suit; and they were unanimous in thinking that there could not be an amendment by introducing any new substantive cause of action. In Lyon, ex dem. Eden & Wood, v. Burtis et al. ( 18 John. 510 ) which was a strong case of amendment, this Court say, (p. 512) “ it is not pretended by the defendants that any injury will be done them by the amendment, farther than to remove a mere technical objection.” But, in this case, we are asked to vary the whole ground.

Here is no subsisting title in Dill, for the purposes of a new action. He is barred, unless we allow him to come in upon this motion to amend. (Jackson v. Richmond, 4 John. Rep. 483 .)

Motion denied.^[1]

(a) (a) F or the great liberality of the Courts in allowing amendments, before, at and after trial, in these actions of ejectment, vid. Rnnn. 226 to 234, and the cases there cited; Adams on Eject. 200 to 208, and the cases there cited, and at id. p. 202, vid. n. (6) by Mr, Haggles to the American edition. Vid. also Lessee of Samuel Howard v. Pollock & Burk, 1 Yeates' Rep. (Penn.) 509. In this case, it was moved at vV. P. to amend by altering the. date of the demise. But per Cur. “ We cannot entertain such motions at nisi privs, which is peculiarly appropriated to the trial of causes. Though great liberality is now used in ejectment cases, as to enlarging the term, and confirming verdicts, where trials have been had upon the merits, it may be doubtful how far the Court would go in making an entire new *160 lease' The old authorities (1 Vent. 361. 1 Show. 207. 2 Barn. 13, 154. Contra, Comb. 290. Carth. 178. 4 Burr. 2447. See 2 Bl. Rep. 940. 2 Burr. 1161. Cowp. 841,4) are against such an amendment clearly, and we no^ recodec^ such a motion having been made in Pennsylvania.” In Lessee of Gardner v. Wilson, ( 2 Yeates, 186 ,) it was said the Court would amend by enlarging the term after judgment, though it was refused after tlle &reat delay ™ that cause, of more than 20 years. In Den, ex dem. hoover, v. Franklin et al. (2 South. N. J. Rep. 850,) the plaintiff Was allowed to amend the timé of the demise after non-suit; and the Court said that “ a motion for an amendment might be heard at any time, and at almos*’ any stage in the progress of a cause.” And vid. Jackson, ex dem. Young, v. Young, (ante, 131.) In Doe v. Pilkington & Russel, (Burr. 2447) an amendment in form, by a^elan& the time of the demise, so as to avoid the statute of limitation upon a 6ne, the plaintiff having been delayed -by injunction, was moved"; and Yated & Aston, Justices, “ thought that the plaintiff’s being out of time to make a new entry, was a reason for .amending, and cited the case of The executors °f Duke of Marlborough v. Widmore, in 2 Str. 890, (and also, more at large, and rightly taken, in Fits-Gibbon, 193) where the declaration was amended by laying the promise as made to the executors, instead of the £estator . because the plaintiff’s action would otherwise have been "lost, ... . , . , , by the statute of limitations having run upon the promise made to the testator.” In Woodroffe v. Williams, (6 Taunt. 19. 1 Marsh. Rep. 419 , S. C.) the C. P. refused, in a penal-action, to alter the term of which the declaration was entitled, in order to bring it within the time limited, by'the statute for the commencement of the action; and where an ejectment had been brought, and judgment recovered in 1798, and the term of ¿emjse sjnce expired, the Court (1819, Trinity Term) refused to ' grant a rule for enlarging the term and issuing a sci. fa. the possession having changed, and the person who was the owner having since died. (Doe v. Rendell et al. Chit. Rep. 535.) But an amendment of the demise was, x ' allowed, where it was laid before the title accrued, (Doe v. Miller et al. id. 536 ) and that too, where the ejectment was for a forfeiture for dilapidations. y.) And a declaration in ejectment was amended b,y leaving out the word tenements, even after error brought, (id. and vid. Peaceable v. Watson, 4 Taunt. 16.)