DICKSON tl. LEHNEN.

819

".LEHNEN.

(Olr-MJlt OfNrl, " B. D. ,

MM'OUri, ie. D.

, ;

,

"

'

,

'.

;"

1.

IJ.urnLORD AND

'The subsequent leaSe having been decreed to' be void, to the tenant's ,knowl.edge. before he acquired any claim thereunder, it cannot be held to have been va.liIl When the ac,tion Of, un,lawful detainer was brong.lit,' beca,use an ,appeal the decree beellafter· . hadqeeri taken and a'Uper8edeIU , wards affirmed. .' . " ,. ." " ' 8. SAME-RES ADJUDIOATA. : , . , . isc.0mpetentand conclusive evidence 01

. 2.

Where a tenapt,: after the: expiration original term, claims the right to hold the, premises under a subsequent lealle by his landlord to a third person, the landlord, in an action of unlawful detainer against the tenant, may show that such subsequeBt lease Is void for fraud"such showillgnotbelng 80 inquiry the merits of the which Is prohibited by
"

DBTAINJljR....FRAUDULENT L1U.SB.

4.

SAlig.,...ESTOPPEJr-REPRESicNTATIONS

The opinion of the landlord's attorney all to the effect of the appeal aP:d auper8edel,wbond, on the right of the subsequent lessee to sublet the premises, concerns a question of lawupqn facts of which the ,tenant had full knowl· edge. and. does not estop the landlord. .' , . The tenant haatheburden' of ploving representation. '01 the landlord's a'torney which are alleged to estop the lanl1lord. '

BY 'ATTORNEY.

3.SAHE....BuitDEN OF PROOF. '

8.

A lease to commence oil ihe e\tplration' Of a prior lease beinz of an exe'cutory character, and Rev. St. Mo. $:I 3080, permitting an attornment only with the .,landlord'sCollllent,or to one who has acquired ,his estate and ll11if,l!lt by deed or execution sale, Ute prior lessee has right to,f,lutTendeI: tlie posael\.sionto the sUbsliquent prie without the landlord's consent; eBpeeially a :". ,controversy as to thev81idity of the subsequent lease has ·arisen, and the les: see noUo ta).l:e PQssession. .

SAME-SURRENDER OF POSSESSION TO SUBSEQUENT LESSEJl1,

.'. , . ' '. .',. ' action of.unlawful detainer 2420 of the lteyised which inter alia any person shall willfully, and without fdrce, hold overllnY.1ands, tenements, termiqation of the tiltH" ,for whic};l they were or other under whom he c1aims,* * * demised orletto nim, suCh' bEl' guilty of an unlawful detainer." Plainancestor, Edwin H.;Farl)lS'forth; heretofore 800 atlJies of county, Mo., to Thomas H. Summers fOJ: 0term of eighfyears ending January 1, 1886. Defenda:t;1t became ,assignee Qf the lease, an,d elltered into possession of the demised, premises, .011 and remained in possession tothe end of the term. A,pril 7, lease for the premises tp one J... for t,he term of10 yearslto C9mmenceon January,l,l&86"whe the,first lease terminated. Farnsworth diEldf\pril n 27, 1879, 8tldJl:lereafter this plaintiff, who 'fas hisAevisee, brought ag,l).inst the court to cancel tiop.e41,ease, ,()n, ,the grQund .of. fraud., A decree annullIng the Was by J1ple,8, .. decree

This was'a:n

At Law. .

320

FEDERAL REPORTER.

the defendant therein prosecuted an appeal t<> the state supreme court, giving a supersedeas bond. The decree'of the circuit court was affirmed by the supreme court in November, 188a.9 S. W. Rep. 618. Pending the appeal, arid on October 15, 1885, Kempinsky leased said premises to the defendant Lehnen for a term of 14 months, to commence Jan.. uary 1,1886, when the lease under which defendant then held expired. At the time of the subletting last referred to, defendant knew of the suit affecting the Kempinsky lease, and had been a witness on the trial of the same in the circuit court, and was aware that it was pending on appeal in the supreme c{>urt. On December 24, 1885, plaintiff notified Kempinsky that any possession taken by the latter, or by persons claiming through him under the pretended lease of April 7, 1879, then in litigation, would be against plaintiff's will and consent. On January 23, 1886, defendant being still in possession, not having surrendered the premises to plaintiff, and claiming to hold them under Kempinsky, plaintiff made written demand of defendant for possyssion, and, the demand not being complied with, subsequently, on February 6, 1886; brought this action of unlawful detainer. The complaint was originally filed before a justice of the peace in Montgomery county, was thence taken to the circuit court of the county by writ of certiorari, and thence removed to the federal court on the of diverse citizenship. James O. Broadhead and G. B. Macfarlane, for plaintiff. D. P. Dyer and David Goldsmith, Jor defendant. , THAYER; J., (after stating the facts as above.) As this action is brought under a local statute, the various questions that have been discussed must be decided-in strict conformity with the law of the state as interpreted by its 'highest courts. The main contention on the part of the defendant seems to be that the court has no power in this proceeding to determine whether the lease granted by Farnsworth to Kempinskyon April 7, 1879, was valid or invalid, as that would involve a trial of title, as to which no inquiry can be had in actions of forcible entry and detainer. Section 2443; Rev. St. Mo. It follows, of course, as a corol. counsel the laryfrom this proposition,'that in the opinion of record of the decree of the circuit and supreme courts of the state, .annulling the lease in question, is not admissible in evidence.. If that view is correct, the result would be, in my opinion, that the defendant would have no right to introduce the Kempinsky lease, on which he wholly relies to justify his holding over after the termination of thelease by prohibiting inunder which he originally entered. The quiry into the merits of title in this class of cases, could not have intended to allow a tenant, who has willfully held over after the termination of a given lease, to justityhis act under a subsequent lease or deed executed by the lessor, and at the Same time to prohibit the lessor orbis heir from showing that such subsequent lease or deed was a forgery, or had been obtained by fraud, or had never been delivered. The construction of section 2443. supra. contended for by defendant's counsel; would logically confine' the proof strictly to the questions whether tlie
\

DICKSON V. LEHNEN.

821

defendantw'as a tenant .6[ the phtintiff, and had held over after the end of his term, and neither party would be allowed to proceed iI. step beyond that point. As defendant admits both of these facts, he has no defense to the action if the position is tenable. The fact is that it has often been held in this state that a tenant, when sued for an unlawful detainer committed by holding over, may show that since the date of his lease the lessor has parted with his reversion by a voluntary cpnveyance of the same, or that he has been divested of the same by a sale in invitum under execntion upon a jndgment, and that he (the tenant) has attorned to the vendee or purchaser under execution, as section 3080, Rev. St. Mo., permits him to do. Kingman v. Abington. 56 Mo. 46; Pentz v. Kuester, 41 Mo. 447; Higgins v. Turner, 61 Mo. 250; Gunn v. Sinclair, 52 Mo. 327. Such a defense has never been regarded as all inquiry into the merits of the title, within the meanirig of section 2443, supra, and it is not 'made such by permitting the lesBorto go a step further, and show, as against his tenant, that the deed invoked by the latter, and under which he has attorned or attempted to attorn, is a forgery, or was void ab initio for fraud. Under the decisions in this state there is a well-marked distinction between cases where a tenant merely holds over, and for that is guilty of an unlawful detainer, and cases where possession is obtained by a disseisin,-that is, by force, or by an original wrongful entry without force. In cases of the latter kind the qnestion of title cannot be raised. The trial is confined strictly to proof or disproof of the acts amounting to a disseisin. But in cases of \he former kind, where a tenant bolds over, defendant may, as before shown, give in evidence deeds executed by his lessor; and when this is done an inquiry into the validity of such com'eyances is, in my opinion, proper. May v. Luckett; 54 Mo. 438; Same v. Same, 48 Mo. 472. As defendant can only justify a holding over by an attornment made under a certain class of deeds, and cannot set up an outstanding title hostile to his lessor,,there cannot, as a matter of course, be a general inquiry into the merits of title in this class of suits. It is next insisted for the defendant that the Kempinsky lease must be beld to have been valid when his suit was begun, notwithstanding the fact that six months befOl:e,that time it had been adjudged by the circuit court to be null and void, because an appeal had been taken from the decree, and a supersedeas bond given. The appeal undoubtedly stayed for the titne being the execution of the decree. It had no other effect. It didl not operate to vacate the decree. and certainly it did not make that a valid lease at any time which was finally adjudged to be voidab initio on the ground of fraud. The decree of the state circuit court (the same having been affirmed in the supreme court) is offered in this case as conclusive evidence of a fact affirmed by the plaintiff, namely, that the lease in question never was a valid instrument, and it is competent for that purpose. The second contention of the defendant's counsel is accordingly overruled. When this suit was brought, and when his term on January 1, 1886, and when he took a lease of Kempinsky, on October 15,1885, defendant had knowledge that plaintiff claimed that .

FEDERAL: REPORTER.

the-lease of'Apri17, 1879', waS void,anii 'that it had been so held by the state citcuit: court., ,In the light of these facts there appears to me t6 be no merit in the plea that thecasesh(juld be treated precisely as it might be if defendant's lessor, Kempinsky, had held a valid lease, and had been entitled to possession of the premises in dispute on January 1, 1886. Defendant appears to have taken the chances, with full knowled/!e of all the facts, that the title which he elected to recognize would prove valid. It is next insisted that plaintiff's attorney and agent, Mr. Hughlett, made representations to defendant,before he took a lease from Kempinsky, as.to right and power, to make a valid lease, which representations;should estop the plaintiff from denying defenda'nt's right to ' hold oveIlunder the lease from Kempinsky. Of this contention it is only' necessaryto'say that there is much conflict of evidence as to the nature of the allege<;l representations, and the burden is on the defenda.nt to show what they were. I conclude that Mr. Hughlett went no further in that matter :tban to express, an opinIon as to the effect, the giving ofan appeal.bond by Kempinsky'had on his to execute leases pending theiappeal;, and, even if it be conceded that the opinion expressed was' in. support@fsuch right, it appears to nie that it concerned a question of law only, arising 00 a state offacts as well known to defendant as to Mr. Hughlett, atidthat in giving such advice the latter cannot be regarded as acting for the plaintiff, and that for both reasons the plaintiff is nGt estopped, in the manner claimed, or in any manner. In addition to the points already considered, notice must be taken of the point made by plaintiff's counsel, that the lease granted to Kempinsky \>n April 7, 1879, being for a term to commence nearly six years after, did not vest him with any estate, even if it had been valid, but merely gave him a future right ofentry upon the demised premises, which right coulGLQnly be enforced by suit in ejectment, or', by an action for' damages' for failure to give possession, if prior to the commencement of the term the lessor or his heir notified the lessee not to enter. There can be no doubt that at common law and under of this state '& lease to commence in future does not, like a deed, vest the lessee with , lln estate., Such an instrument creates only an inUJTe88etermini. It is of" anexeomtol'y,character, and does not even give the lessee a constructive possession'. ' Until actual ep.try with, the lessor's oonsent, possession reo: ' Diains holder of tbetitle, if there is no actual occupant.A'lkUi".' v. , Mining {b;,'72 Mo. 541"andeases' cited; Michauv. Walsh,6Mb.346; J.'Washb. Real Prop. (4th i Ed}442;4 Kent Corn. {11th Ed.) 106; 1 Greenl.Orl1ise,:243; Wood, LandI; & 'Ten. §§ 224,225. Suchbeing tlleJnature of a lease to COmmence in future, I am of the opinion that dmendant had -no right in' any' event to surrender the possession to Kernpinsky" without first obtaining his landlord's consent, and that' he 'eertaiiilyhad no to so ,surrender the possession'after 8i'oontroversy as te.thevalidity of Kempinsky's lease had arisen, and the latter had been' ' warned not to take possession:. "Defendant's duty was to,restorepossession to his landlord, under whom' he had entered, ortohis:heir., If'hebad vacated the premises Kempin,;, , ,

823

'.j,iEjhes 14t *1. Wp'1

J;ight 11'). Opp(lEiitiQ!l, MfLY Vi· !1!8':¥0:.4t12.. ;Seetlon: ;«av. Mo." to, allow,E$ a tepat)Ulll;8.;ttQTu,to, a ,stran+ witp'consent of his landlord, to SO:QjleOM 'whohas Mquired: the estate.and Shlce the by ,a deed the lei!., or by virtue ofasale under an (l,:lCecution hirn.Thestatute does notrecogni2;e right to ,Burrender thepremillElS in his charge, or tl? attorn, to lessee, whose term is to ,begin after the term ap,d who has no estate by virtue of his lease, until let, iJltopossession by the owner of the premises.: , ' The «amageIHu'eassessed at , There ,will be ajudgmentfQr tile monthly value oithe and profits at the $Uttl of $110. '

SWEET

I

et al. t1.REcm:L.

(Oi1'cuit Oourt, D.Mas8achu8ettB. January 26, 1889.
N11I8ANOlll-ABA'l"EMEN'1'-OOMPENBATION-POLIOE POWER.

Act MaBll. June1. 1867, providea that for the purpoae of the city d.f Boaton may purchaae or otherwiae take lands within a certain district.anc:lthat the title O'f:all land ao taken shall veat in the a may, agree with the city upon thedamag6'ldone, party. wl19ae .land is and the amount thereof shall then be paid to him by the city. Bellt,that .the title to lands taken under auch act vests in the city; though'n compensation Jas ever been made to the owner; the taking of the lands being under the lice of the atate. , ·

At Law. ThfYTlUia A. Jencke8 and James E. Leach, for plaintiffs. Goo. B. IJigelow and S. J. Elder, ·for defendant. COLT, J. This iaa writ of entry, brought to determine the title to certain real estate situated in the city of Boston. The case was heard ,upon an agreed statement of facts. The defendant claims to derive title from, Peleg Tallman, Jr., the father of the plaintiffs, under a guardian's deed executed. in 1844, and he also claims title under a deed from the ciW of Boaton, dated March 14, 1870. The plaintiffs contend that no title, was conveyed by either of these instrUJ;nents, and that the title to the property is in them as heirs .at law of Peleg Tallman, Jr. As the de. fendant seems to rely more upon the deed from the city of Boston, let ns first comMer the grounds upon which its validity isattacked. On June 1, 1867, the legislature of Massachusetts passed an act entitl/ild "An act to enable the. city of Boston to abate a nuisance existing therein, and for the preservatIon ofthe,public health in said city." This act provided that the" might or the buildings wHhin a cer., district known as the "Church-Street District, "and that the title of all land so tak,en should vlJ!'jt in. . of Boston. It fu.rther provided that a the city , ' . .
".

324

FEDERAL REPORTER.

party whose land was taken might agree with the city upon the damage done, and that he should then be paid -the amount by the city. It further provided that any person entitled to any estate in the land so taken might within one year bring a bill in equity, setting forth the claims for damages against the city of Boston, or the Boston Water-Power Company, or any other corporation or person, by reason of any wrongful act or oniission in causing dimunition in the value of the land at the time of said taking, -and praying an assessment of damages against such parties. The land in controversy was taken under this act, and subsequently, on March 14, 1870, the city, for a valuable consideration, deeded the land to the defendant. The main contention of the plaintiffs is that no title to the land passed under this act. They do not deny the constitutionality of the act, because that question has already been settled by the supreme court of the state in Dingley v.' City oj Boston, 100 Mass. 544, but they say no title to the property passed until compensation was given, and that, as nothing was ever paid by the city to the real owners, the city never acquired any title, and that consequently nothing was conveyed by the deed of the city to the defendant. In determining the question now raised it must be borne in mind that the qhject of this act was the abatement of a nuisance. The land was not taken under the right of eminentdornain, but under the police power of the state. This case, therefore, is .not parallel to that of Kennedy v. Indianapolis, 103 U. S. 599, upon which the plaintiffs largely rely. In Bancroft v. City of Cambridge, 126 Mass. 438, the court, in the construction of a similar act for the abatement of nuisance, use the following language: I "It was not passed to delegate the right of eminent domain, but under the police power of the commonWt'alth. Laws passed in the legitimate exercise of this power are not obnoxious to cOnstitutional provisions, merely because they do not provide compensation to the individual who is inconvenienced by them. He is presumed to be rewarded by the common benefits secured. Instances of its exercise are found in all quarantine and health regUlations, and in all laws for the abatl:!ment of eXisting and prevention of threatened nuisances. It has been many times recognized and applied in the decisions of this court... But, as aIready stated, this act has been construed by the supreme judicial court of Massachusetts in Dingley \·. OityoJ Boston, and the court there held, not only that the act was constitutional, but that land taken under the act vested the fee in the city as absolute owners. To be sure, in that case the question of compensation was not directly raised or passed upon, but it logically follows from the conclusions of the court in that case that the plaintiffs have no right to maintain this action. If the act was constitutional, and a fee vested in the city under its provisions, .then clearly by that decision no remedy was left to the owners except the assessment of damages as provided in the act. The construction of a state statute QY the· highest court of the state is conclusive upon the federal courts. \For these reasons I am of opinion that the city of Boston rived title to the lands incontroversy under the act of 1867, and that by the deed from the city the defendant subsequently became the owner of

IN BE WILLIAMS.

826

the property. The conclusion here reached renders it, unnecessary to enter upon any inquiry as to the validity of the guardian's deed. Judgment should be entered for the defendant, and it is 80 ordered.

In re WILLUMS.

(Diairiet Oowrt, D. South Oa,rolina. January 28.1889.'
L

WITNESS-ATTENDANCE AND FEEs-IN FEDERAL COURTS.

A- person. under subprena as' a witness for the United States, atte'nded court. The case was continued. and the witnesses were verbally instnlCted to attend at the next term. In the mean time he removed his residence into another state. Without further summons. he attended court, and was used as a witness by the United States. Held, that he was entitled to mileage from ' his place of residence.

2.

A witness for the United States, voluntarily coming to and attending coun on the verbal instructions of the district attorney. is entitled to per diem and mileage. notwithstanding that his residence is out of the district, and'more than 100 miles from the place ilt which the court is held. . (SyllabUS by the Court.)

SAME.

On Application for Compensation as Witness.
B. A. Hagood and R. W. Memminger, Jr., for applicant.

H. A. De Saussure, Asst. U. S. Dist. Atty.
SIMONTON, J. Williams was served with subprena to attend the J:oly term of this court in United' States v. Howard in behalf of the government. He attended, and was registered by the district attorney. The case was continued the October term. All the witnesses in behalf of the gpverriment'were discharged with instructions to return at the next term. In October :Williams attended, was again registered, and, the case of Howard having been continued, he was, with the other witnesses;, charged under instructions to appear at the January term. In Novem': ber he'weht, under his father's instructions, to Jersey City, the residence of his father; he' being a minor. He came back to Charleston to attend the January terol of this court. He reported himself to the district torney, and was registered as a witness, giving his residence as Jersey' City, and was used at the trial of Howard. He never was bound over as a witness. He received no subprena except to the July term. He claims his miieage from J ereey City. With serious doubt of the bona fides of this I have examined into the facts presented in the affidavits, and have come to the conclusion that Williams came here in good faith, thinking that he was Obliged to come,and for the sole purpose of being a witness. Assuming that the exigency of his subpcena was satisfied by his attendance at the July term. anrl that he has afterwards attended under the verbal instruQtions of the district attorney, he would, under the practice' of this court;l!anc-'

tuoq.

w;a9VQe.

er)I,l.pit.

States cour.t.s,. .,

0.178,

.t9 h.is

12

he is entitled to his mileage, notwithstanding the fact that it is out of this state and district, and is' more than 100 miles away from the place for the holding of the court. U. S. v. Sanborn, 28 Fed. Rep. 299. Let . the order be prepared
, . , :, C ' ' .. ,

j

I.

.: I

i ,,,

;li:

UNITED' STATES 11.

,;',

Two HUNl>RED :

',.'

AND

EIGHT, BAGS

OF

:KAImT.

'

,"C!Ji6trict Cour'])·. SO'llthOq.rfilina. January 24.1889.) ' ... , ." .
OF LAWS-FoRFEITURE.

When prop.erty afloat is brought ashore in contravention of the revenue J l'",l,aw$, ,of$e States, it cannot be unless was done with to defraud the United States on the part of the owner, or of AA.rson;sc.ting under his authority; <;lrwh? is the agent of the owner. or ot die person froplwhom the o:w;ner(!.erlves title. . 2. SAME. When property aBoat is feloniously taken from the possession of the owner, and is brought ashpre in contravention of the laws of the United States. and then seized by the ·oflicers ofcus'toms. it will not be forfeited as against the true owner. ,.. '
(Syllabu8 by

i

th6 Oourt.)

,·IpformatioI\ ,ut:lder Sections 4, Rev St. 'H.'.It. De SaU881J,re, Asst. U. S. Dist. Atty. 'SmJjtM &: a.n4 Bryan &: Bryan, for claimant.

Lee

, :8moNToN'1 J. '. The'facts ot'this caSe, all found by the testimony, are bark Swaren came to this port from Bremen, with ,article. She was duly entered in the An inspector wen.t .aboard of her. She discharged her .at the, wharf. of the Etiwan. Phosphate Company, the owners of ,cargo. TheJDB.ster and insJ)ector reported that the cargo was fully !tisGharged. T4e vessel left .theEtiwan wharf, ,and dropped down the I3tream a mile and a half, opposite to Marshall's wharf. While positiQu, at night, in small boats, the 208 bags of kainit in question brought from the ship to the wharves, and concealed in the city or'Oharleston. This was done with intent to unlawfully appropriate property. of thE; Ethyan Phosphate Company. Thekainit was officers of the, govyrnmeIlt, and this libel and information The 'E,tiwan Phosphate C01l1pany file their claim as owners of The question, ,then, is, where property aflOat is unlawfql1y ink.en from the possession of its owner, and ashore in of the revenue of the United States, .must the propei'tibe . ' the owner, remanded to his application to ..... ; . and . . " . .

these: The

-'

',.