Mershon v. Williams

• Decision Date: 15 August 1899
• Citation: 44 A. 211,63 N.J.L. 398
• Parties: MERSHON v. WILLIAMS.
• Court: New Jersey Supreme Court

44 A. 211

63 N.J.L. 398

MERSHON

v. WILLIAMS.

Supreme Court of New Jersey.

Aug. 15, 1899.

(Syllabus by the Court.)

Action by John T. Mershon against John H. Williams. On demurrer to plea. Judgment for defendant.

Argued at February term, 1899, before MAGIE, a J., and GARRISON, LIPPINCOTT, and COLLINS, JJ.

Voorhees & Booraem, for demurrant.

Alan H. Strong, for defendant.

LIPPINCOTT, J. The action in this case is on contract. The declaration is in covenant, founded on a lease made January 26, 1892, by the defendant to the plaintiff, of a certain messuage in the county of Monmouth, and of certain cattle and other animals in and upon the same. It avers that "by a certain indenture or agreement of lease then and there made between the said defendant of the one part, and the said plaintiff, of the other part, which said indenture, sealed with the seal of the said defendant, the said plaintiff now brings into court here, the date whereof is the day and year aforesaid (a copy of which is hereto annexed, and is hereby expressly referred to), the said defendant did demise, lease, and to farm let unto the said plaintiff a certain messuage, * * * together with twenty head of cattle, farm horses, eighty head of fowl, and a suitable number of shoats and pigs, * * * situate * * *, to have and to hold the said messuage, dwelling house, farm, and premises and chattels unto the said plaintiff for the term of one year from the 1st day of March, 1892, with the privilege of four years more from the 1st day of March, 1893." It further avers, "And the said defendant did by the said indenture covenant, promise, and agree to and with the said plaintiff that he, the said plaintiff, * * * should and might quietly and peaceably have, hold, occupy, possess and enjoy the said messuage * * * for and during * * * without the let, suit, trouble, denial, interruption, or molestation of the said defendant. * * *" It further avers that under this lease the plaintiff entered into possession, took and accepted the privilege of the term of four years more mentioned in the lease, of which the defendant had legal notice, and kept and performed the agreement of lease, and also avers that "on the 1st day of March, 1893, the defendant expelled the said plaintiff from the possession and enjoyment of the said messuage, cattle, animals, and chattels, and hath kept him so expelled therefrom." and avers consequent damage. With other pleas to this declaration, the defendant filed a special plea in bar of the action, which avers that the defendant herein, with one Alice T. Williams, as plaintiffs, heretofore impleaded the plaintiff with one Harvey H. Mershon, as defendants, in an action of ejectment, and in and by the declaration in that case had demanded of the defendants therein the possession of the identical lands and messuage whereof the plaintiff herein has complained for an eviction, and the same lands mentioned in the said indenture of lease, and that the right of possession in the plaintiffs therein accrued on March 1, 1893, and that to this action the defendants therein pleaded the general issue, and that on the trial of the action the defendants therein were found guilty of the trespass in ejectment, as laid in the declaration to their charge, and that judgment that the plaintiffs therein recover against the defendants therein the possession of the said premises was duly entered in supreme court, with costs against the defendant, as appears of record, upon which execution was duly had, and which said judgment still remains in force and effect, and not set aside, vacated, or made void, and, therefore, that the plaintiff in this action is not entitled to say that the plaintiff exercised the privilege of four years more in the said indenture of lease mentioned, nor that he became entitled to hold and enjoy the said premises and the goods and chattels for the said period of four years after March 1, 1893.

It will be perceived that the declaration is founded upon a covenant for quiet enjoyment contained in the lease between the parties for four years beyond March 1, 1893, and not for a breach merely of the contract, or in tort for a trespass in the eviction. The plea is of judgment in a former action in bar of the present one, founded upon such covenant for quiet enjoyment, upon the ground that the matter is res adjudicata. While it is not necessary, in the view which the court has taken of the case, to express an opinion upon the legal efficacy of this plea, yet it appears quite conclusively that it is bad as a plea of former adjudication in bar of the pending action. A matter is not to be regarded res adjudicata unless there be identity of the thing sued for, of the cause of action, of the persons and parties, and of the quality of the persons for and against whom the claim is made, and the judgment in the former suit be so directly in point as to control the issue in the pending action. 2 Bouv. Law Diet. p. 467; Davis v. Brown, 94 U. S. 423; Minor v. Walter, 17 Mass, 237. In an action of ejectment the defendant pleaded in bar a judgment in his favor in an action of trespass quare clausum fregit, in relation to the same land. The court held that it could not be assumed that the same cause of action arose in both suits, as one action might affect title to lands, and the other only the right of possession. Arnold v. Arnold, 17 Pick. 4. The record of the former judgment only works an estoppel as to those matters capable of being controverted between the parties at the time of the proceedings in the action. Robinson v. Kruse, 29 Ark. 576; Cleaton v. Chamblis, 6 Rand. 86; Hall v. Levy, 44 Law J. C. P. 89, and cases cited; 5 Fish. Dig. 7917. The record must show that the issue was taken on the same allegations which are the foundation of the second action. The test is whether the proof which would fully support the one case would have the same effect in tending to maintain the other. Bigelow, Estop, p. 27; Gould, Pl. 57, 264; Steph. Pl 353. It seems manifest, applying these principles, that the plea here tendered is not an estoppel against the plaintiff. These reflections are only made as they appear to be naturally appropriate to the case as presented. The necessity of further discussion upon this point, and a decision thereon, is rendered unnecessary by the conclusion reached by reason of the insufficiency of the declaration.

It is a rule of law that upon demurrer judgment will be given against the party whose pleading is first defective in substance. Brehen v. O'Donnell, 34 N. J. Law, 408. It reaches back through all previous pleadings, and judgment thereon must be given against the party in whose pleadings the first substantial defect is found. Nixon v. Fithian, 61 N. J. Law, 4, 38 Atl. 698; 1 Chit. PL 668. The declaration, as has been said, is fouuded upon a breach of a covenant for quiet enjoyment, and not in tort for trespass. By section 123 of the practice act (2 Gen. St. p. 2554), the lease, being referred to in and annexed to the declaration, is made a part thereof, just as much as if it had been precisely set forth, and it is to be examined in order to ascertain whether a cause of action is stated against the defendant. Cole v. Smalley, 25 N. J. Law, 374; Loeb v. Barris, 50 N. J. Law, 382, 13 Atl. 602. There is no express covenant for quiet enjoyment contained in the lease, and the declaration therefore is upon a covenant in law of that character, that is, an implied covenant for quiet enjoyment. The defendant contends that no such implied covenant arises from the terms of the lease. The lease, after the statement of the date and parties, provides "that said Williams agrees to let to the said Mershon to farm on equal one-half shares for the term of one year from March 1, 1892, with the privilege of four more years from March 1, 1893, on his part to farm the property for the one-half share." Again it is provided that "said Williams leases to said Mershon all that farm containing 160 acres, more or less." The messuage is described, and the duties and rights of the landlord and tenant defined, but the only words used are "let to" and "lease to." Williams agrees to "let to" and to "lease to," and Mershon agrees "to take" the farm, and these are the words in which the parties have couched the indenture of lease between them. The question presented is one of some difficulty, and contrariety of judicial opinion. It has been held by all the cases in which the subject has been considered that from the words "demise" or "grant" in a lease under seal a covenant for quiet enjoyment will be implied. 2 Piatt, Leas. 285, and cases cited. I do not find the cases harmonious upon the question what other words used will give rise to the covenant, or whether it will be implied from the relation of landlord and tenant created by an agreement under seal. The feudal warranty was a natural incident of tenure, and implied from it, and it protected the vassal from the paramount title of others, and against the lord to take back...