Cutter v. Waddingham

• Decision Date: 31 October 1862
• Citation: 33 Mo. 269
• Parties: NORMAN CUTTER, Respondent, v. WILLIAM WADDINGHAM et al., Appellants.
• Court: Missouri Supreme Court

33 Mo. 269

NORMAN CUTTER, Respondent,

v.WILLIAM WADDINGHAM et al., Appellants.

Supreme Court of Missouri.

October Term, 1862.

Appeal from St. Louis Circuit Court.

The legal title under which plaintiffs claimed was the act of Congress of April 29, 1816, confirming the claims recommended by Recorder Bates. The report of the recorder upon this claim was as follows:

Warrant or order of survey.

Survey.

Notice to Recorder, by whom.

Quantity claimed.

Where sit't'd.

Poss. inhab'td or cultivated.

Opinion of Recorder

Prov. Land B. No. 2, p. 29.

Not platted.

Lirette's representatives.

F.167,1 by 40 arpens.

St. L. out lot.

Poss. cult'v'd prior to 1803.

Con. 40 ar. to be surv.

Province Land Book, No. 2, p. 29, contained the survey by Duradale, Surveyor General of Upper Louisiana, made between the year 1770 and 1772, and called for a lot of one by forty arpens in the St. Louis common field, bordering on one side immediately upon the domain of five and one-fourth arpens in width, and on the other upon Moreau.

Livre Terrein, No. 1, p. 27, contained a concession by St. Ange, dated July 17, 1769, to Louis Lirette, of a lot one by forty, bounded on one side by land of the widow Marechal and on the other by that of Condé.

The act of sale of Louis Lirette to John B. Vifvarenne, dated August 20, 1774, executed before Lt. Gov. Piernas, described the land as 1 by 40, bounded on one side by widow Marechal, and on the other side by the domain of the king, or Señor Condé, and as being the same tract granted to Lirette, under the French government, by Messrs. the Commandant and Judge of this Province, according to the grant which the said Lirette has this day given up to the said Vifvarenne, &c.

J. B. Vifvarenne married Genevieve Cardinal August 6, 1777. His son J. B. Vifvarenne was baptized May 3, 1779. On January 1, 1781, a child aged fourteen months was buried. On August 18, 1780, a son, Louis, under whom plaintiff claims, was baptized. April 9, 1782, a son, François, was baptized.

The inventory of Genevieve Vifvarenne was made before Gov. Cruzat August 19, 1782, and stated that the governor went to the house of Genevieve Cardinal to make an inventory of the property found belonging to her and to her two younger children living with her, and that the goods were committed to Mr. Sans Souci for safe keeping.

The account of sales made October 2, 1782, recited the sale at “auction, at the house of Genevieve Cardinal, of the effects which she left when she disappeared from this place, belonging to her and to her two children whom she took with her.” U. S. survey 1479 recited that the survey was made of the tract, it being the tract of 1 by 40 arpens granted to Louis Lirette 17th July, 1769, by the Spanish authorities of the Province of West Louisiana, surveyed in the year 1770, 1771 or 1772, by Martin Duralde, &c. (See Liv. Ter. No. 1, p. 27, & No. 2, p. 29, in the office of the recorder of land titles, and confirmed to Lirette's representatives by act of Congress of 29th April, 1816.) The survey recites that the tract of 40 arpens is bounded by the king's domain of 5 1/4 arpens and by Moreau's tract, and then gives courses and distances. The survey was executed October 19, 1826, and approved June 7, 1845.

The defendants claimed title through Genevieve Cardinal, widow of J. B. Vifvarenne.

Field and Hill, for appellants.

I. Estoppel binds only the parties to the transaction out of which it arises, and in respect to strangers never has any effect. It seems to be settled by authority that one decisive test of the binding force of an estoppel in a particular case is to inquire whether the person invoking it is himself bound by it. If he is not bound, he cannot claim the benefit of it. Coke says, “Every estoppel ought to be reciprocal, that is, to bind both parties, and this is the reason that regularly a stranger shall neither take advantage nor be bound by the estoppel.” (Co. Litt. 352.) The distinction here pointed out by Coke will be found to be adopted in all the adjudged cases. Without citing the multitude of cases that are to be found in the common books of reference, it may be sufficient to direct the attention of the court to two comparatively recent cases, in which this distinction has been acted on. (Gaunt v. Wainmann, 3 Bing. N. C. 69; Sparrow v. Kingman, 1 Comst. N. Y. 242; Co. Litt. 352; Macklot v. Dubreuil, 9 Mo. 477; Landes v. Perkins, 12 Mo. 238; Bogy v. Shoab, 13 Mo. 367.)

Sparrow v. Kingman, 1 Comst. 242, was a dower case, and the defendant went into possession under a deed of the husband transferring the fee. The doctrine of estoppel was invoked on behalf of the widow. But the court decided that the defendant might show, if he could, that the husband had no estate at all. A great number of previous decisions in New York were overruled by this decision. The attention of the court is invited to the opinions of the judges, as they review the general doctrine of estoppel with learning and candor.

If this old and established rule is adhered to, the error of the court below is manifest. The plaintiff was a stranger to the deeds out of which the supposed estoppel arose. He claimed the land in controversy by a title which, if good for anything, was paramount to any title in the parties to those deeds. Nothing that was said, done or transacted by those parties was admissible in evidence against him, much less could it bind him by estoppel.

The present suit was commenced in 1846, before the passage of the new practice act; and all the proceedings are regulated by the law as it stood anterior to 1849.

II. Under the general principles of the law applicable to all actions, if by any event pending the suit the plaintiff's right of action is determined, there can be no recovery.

The action of ejectment is mixed, being founded on the right to the possession of real property and to damages for withholding the intervening profits. It may well happen that pending the suit the plaintiff's right to the possession of the property may be lost, and his right to the rents and profits, during the time he was owner, continue. In such case the suit is not abated, but is limited to the recovery of damages.

We can therefore only reason from analogies furnished by cases under the fictitious action of ejectment adopted in the English courts. A striking analogy is furnished in the case of a transfer of interest, by the death of the lessor of the plaintiff in an English ejectment. By such transfer of interest, a pending suit of ejectment is reduced to a mere claim for damages, and the possession cannot be recovered. This was decided in the case of Thrustout v. Grey, 2 Strange, 1056. Mr. Adams, in commenting on this case, says a trial under such circumstances is unknown in practice, as the damages in the fictitious action of ejectment are merely nominal, and the executor of the lessor would have no claim to costs. (Adams' Ejec. 320.)

In many of the American States the rents and profits may be recovered directly in the original action of ejectment, and the English rule seems to have been adopted to allow a recovery for the rents and profits, in the name of the fictitious lessee, after the death of the lessor. (Kinney v. Beverly, 1 Hen. & Mun. 531; Jackson v. Davenport, 18 J. R. 295; Watson v. Tindal, 24 Georg. 494; Frier v. Jackson, 8 J. R. 507.)

In no case, however, is the nominal plaintiff allowed to recover the possession of the land after the death of the real plaintiff.

In Pennsylvania, (Regan v. Phillips, 4 Yeates, 382,) it is held that if pending the suit the title of the plaintiff be divested by act of law or his own act, he shall not recover possession, but may have his damages and costs. To the same effect is the case of Murray v. Garretson, 4 S. & R. 130. In Maryland, Cresap v. Huston, 9 Gill, 269; Carrol v. Norwood, 5 Harr. & J. 164. In Vermont, Benton v. Austin, 4 Vt. 105, and Cheney v. Cheney, 26 Vt. 606. Also, Torrence v. Betsey, 30 Miss. Rep. 129.

III. Proof was given on the part of the plaintiff, that if the premises had been free from litigation and had been put to rent, the rents and profits would have amounted to a sum justifying the finding of the jury. On the other hand, it was shown that the rents and profits actually received by the defendants did not exceed the public charges.

Upon this evidence the defendants asked the following instructions:

“25. If the jury find that the plaintiff and defendants, at the commencement of this suit, were respectively entitled to undivided interests in the lot in controversy, then the jury should find for damages no more than the proportional share of the plaintiff of the rents and profits actually derived by the defendants from said premises.”

This instruction was refused, and the jury found for the plaintiff 11-15 of the land and gave to the plaintiff damages to the amount of $40,000, and assessed the monthly value of the plaintiff's share at $733, equivalent to $8,796 per annum.

The real point of dispute between the parties is whether one tenant in common can recover in ejectment from his co-tenant more than his share of the rents and profits actually received by such co-tenant.

The reasonable measure of damages in all cases is the value of the right of which the party has been deprived. It becomes necessary then to examine the relation of tenants in common to ascertain the value of a right which one withholds from the other. (Wheeler v. Horne, Willes, 208; Badger v. Holmes, 6 Gray, 118; Moses v. Ross, 41 Me. 360; Ruffner v. Lewis, 7 Leigh, 720.)

Glover & Shepley, Krum & Todd, for respondent.

I. The defendants, having denied plaintiff's right in toto and excluded him from the land, was a trespasser and liable as such in tort, in which case the rule is always the actual damages and may be more. (11 Ired. 211; 9 Ired. 222; 3 Wilson, 118.) The plaintiff is not confined to the very mesne profits only, but may recover for his trouble. I have known four times the value of the mesne profits given by a jury in this...