Burnett v. Caldwell

ERROR to the District Court for the Northern District of Georgia, the case being this:

In 1850, one Rogers being in possession of certain premises for some years, sold them to persons from whom they passed to the Rome Female College. And this college executed a somewhat peculiar deed conveying them to Caldwell. Caldwell being thus in possession and claiming title, sold them in January, 1864, to a certain Vliet. Vliet paid him $4000, and gave him two promissory notes, each for $7000, payable in the course of the year at dates fixed. Caldwell at the same time executed to Vliet a title bond in the penal sum of $36,000, reciting the payment of the $4000 and the delivery of the notes, and 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 brought ejectment against Burnett to recover possession of the property. He had given him no notice to quit.

On the trial, Burnett the defendant being on the stand, his counsel proposed to ask him what he had given for the property, how much he had paid and in what manner, and whether he had paid a valuable consideration. The court, on objection, overruled the interrogatory.

In addition to this, various questions were made before the court as to whether Rogers had or had not a valid title by virtue of the statute of limitations, whether Caldwell had or had not a perfect paper title, and whether the deed executed by the trustees of the Rome Female College was valid or not.

The court (Erskine, J.) gave instructions on all those points, but in addition instructed the jury that 'if a purchaser failed to comply with the terms of a contract under which he obtained possession, the vendor was at liberty to treat the contract as rescinded, and regain the possession by an action of ejectment; that in such case neither a demand of possession nor a notice to quit was necessary; that the ejectment here was not brought to enforce the contract of sale, but to regain possession of the land acquired under it.'

Verdict and judgment went for the plaintiff, Caldwell; and the defendant, Burnett, brought the case here.

Mr. Thompson, for the plaintiff in error, went into argument to show that the instructions as to the statute of limitations-as to Caldwell's paper title, and the deed executed by the trustees of the Rome Female College-were erroneous; and particularly to show that the instructions above quoted, as to the right to bring ejectment and this without notice, were so.

Mr. J. E. Brown submitted an able brief contra, along with a MS. report of a late case, McHan v. Stansel, in the Supreme Court of Georgia, deciding that, in a case like the present, ejectment might be brought without any notice to quit.

Mr. Justice SWAYNE delivered the opinion of the court.