Connor v. Bradley

THIS case was brought up by writ of error, to the Circuit Court of the United States for the District of Columbia and county of Washington.

The case was this:

In 1807, William Prout, living in the city of Washington, and being the owner, in fee, of a lot in said city, made a lease of a part of it to Joseph B. Parsons, for the term of ninety-nine years, renewable forever. It was in the usual form and contained the usual covenants, (with the exception of the one hereafter mentioned,) reserving an annual rent of thirty-five dollars, payable on the 13th day of March, clear of all taxes, charges, rates, or assessments whatsoever. There was a covenant that if the said yearly rent of thirty-five dollars should be unpaid at the expiration of sixty days after it was due, and no sufficient effects could be found upon the premises, whereon to levy the same, it should be lawful for Prout, his heirs or assigns, to re-enter and take possession of the leased premises.

The special covenant was to this effect, that if at any time or times thereafter, and before the expiration of the lease, Parsons, or his heirs, executors, &c., should pay to the said Prout, his heirs, executors, administrators or assigns, the sum of $196 87 1/2 cents over and above all rents for said piece of ground that might then be in arrear, that then the said Prout, his heirs, &c., should make and execute a good and sufficient deed of release in fee simple to the said Parsons, his heirs, &c., for the said piece or portion of ground.

In 1813, Parsons died, having occupied the leased property from the time that the lease was made.

In 1815, and prior thereto, the widow of Parsons, who continued in possession of the property, paid to Prout $100 on account of the purchase of the fee simple in the said lot.

In 1823, Prout died; Mary Bradley, one of the lessors of the plaintiff, being one of his surviving children. After Prout's death, the widow of Parsons gave possession of the property in question to Mary Ann Connor, the defendant in the ejectment, who for some time paid the taxes as they accrued, and also paid various sums of money on account of the rent due, and in arrear, and of the accruing rent.

In 1831, a partition of the estate of Prout was made, according to law, among his children, and the leased premises in question were assigned to Mary Bradley. After the partition, Mary Ann Connor made payments on account of the rent to Mary Bradley, and also paid the taxes to the corporation of the city of Washington, up to the year 1831, but omitted to pay the taxes for the years 1831, 1832, 1833, and 1834, amounting in all to $44.33 cents,

In 1835, George Adams, the collector of taxes for the corporation of Washington, after having advertised the property, set up to sale the leasehold interest in the said premises, but receiving no bid for the same, immediately thereafter exposed to public sale the fee simple interest and estate, which was purchased by one Allison Nailor, for the sum of $49 83 cents, being the amount of taxes due thereon, together with the expense of selling the same. The property had been assessed on the books of the corporation of Washington, from 1813 to 1838, in the name of Joseph B. Parsons's heirs.

On the 2d of June, 1838, the corporation of Washington made a deed of the premises to Allison Nailor, and, in November following, he conveyed them to Mary Ann Connor.

In November, 1838, Henry Bradley, and Mary his wife, brought an ejectment against Mary Ann Connor, counting on two demises; one from William Prout, on the 1st day of January, 1827, and the other from Henry Bradley and Mary his wife, on the 1st day of January, 1838.

The judgment of the court below was for the plaintiffs. Two bills of exceptions were taken, the first of which it is only necessary to notice, and which is stated at large in the opinion of the court.

Brent and Brent, for the plaintiff in error, and Bradley, for defendant. Only such parts of their arguments will be noted as bear upon the point upon which the court rested their judgment.

Brent, for plaintiff in error, contended, that, as to the first demise, laid on the 1st January, 1827, it was bad, because the evidence showed that Prout died in 1823. 3 Wend. 153.

The second demise is laid on the 1st January, 1838, and the lessor must show a right to re enter on that day; and he cannot have such right unless there be insufficient distress upon the premises. 3 Harris and Johns. 19; 5 Harris and Johns. 175; Adams on Ejectment, 189; 1 Johns. Ca. 283; 6 Cowen, 149; 2 Leigh's N. P. 882, 883, 934; 4 Durnf. and East, 681; 6 Binn. 454; 3 Bibb, 297; 3 Marshall, 134; 3 Monr. 221. The evidence shows that there was not sufficient distress on the premises, on the ___ day of October, 1838, but not how it was in January, 1838. Evans's Practice, 48; Adams on Ejectment, 150, reciting statute of Geo. 2; 7 Durnf. and East, 117, 120; 2 Leigh's N. P. 924; Doug. 485; 15 East, 286; 2 Chitty's Pleading, 880, note K; 2 Maule and Selw. 529; 6 Cowen, 149.

Bradley. 15 East, 286-288, (referred to in Leigh's N. P.) only says that there must be an insufficiency at the time of the notice, or when the declaration was served. But in this case the tenant sets up an adversary title, and does not come within the rule. Buller, N. P. 96; 6 Johns. Rep. 272.

Connor must be considered as a trustee for the true owner, having obtained the title by fraud. 2 Bos. and Pul. 178; 8 East, 263. Court will direct the jury to presume a deed from trustee to cestui que trust. 4 T. R. 682.

Brent, in conclusion, insisted that the demise in the declaration must correspond with the right of entry, which did not accrue until there was an insufficient distress. 8 Peters, 214. Reason of the rule stated in 3 Harris and Johns. 19; 6 Johns. 273. Question of fraud not raised in the bill of exceptions.

Mr. Justice DANIEL delivered the opinion of the court.