DAVEIS 11. COLLINS
(Oireuit Court, N. D. nHn0f8. June 24, 1890.)
L .ADVERSB PoBSB88ION-ADMISSION AGAINST TITLB-HUSBAND AND WIlI'B.
Though the husband be a drunkard, and the wife' support the family by her industry, he still, continues the head of the family, and any admission !>y him as to whether his occupation of land is adverse concludes her right after h18 death.
Oll' 'ANOTHBR'S TITLE.
An 'acknowledgment by a mere squatter of ownership In another person inter. ruptll the runl1ing of adverse possession.
BAME":"M;ENTAL CAPACITY TO MA.xB ACKNOWLBDGHlIINT.
The mental capacity of the person in possession to execute a lease, thereby aokllowledging another's ownership, cannot be inquired into as against an innocent . , pUrchaser. , Thel'lipnin,g of prescription in favor of one boldlDg by adverse possession 18 1DterruPted. by a slUe for taxes.
,. 'BA.MIl-SALE :lI'OR TAXES.
AtI,.aw. Ejectment. Char14 H. ,Aldriqh, for plaintiff. LOui.a ShiJMJler, JUrne8H. Ward, ..4. T. Powers, and Robert B. KendaU, for defendants.
J., (orally charging jury.) This is an action of ejectment to recover possession of block 111 in the original subdivision known as "CanalporV' an addition to the city of Chicago. The plaintiff has offered that this Canalport subdivision was made upon a portioq j>fsection 30, in township 39, range 14 E., lying in Cook county; that this, portion of section 30 was patented by the United States to one Welch conveyed it to Hamilton and Pearsons; that Pear. Welch; aons conveyed his interest in it to Hamilton; that Hamilton,in 1853, conveyedto J. Walker; that Samuel J. Walker conveyed block 111 H. H. H. Walker made a conveyance by J;Xlortgage t,o Prather; that Prather obtained title by foreclosure of his mortgage"and conveyed to Matthews, and Matthews to Cooper, to Pierce, Pierce to Bridge, and Bridge to the plaintiff,-thereby showing an undisputed chain of title from the United States to the plaintii;l'in this case, which entitles the plaintiff to recover unless the defendant has made out a defense. .The defendant does not claim to have ever had paper title to this property; the only title which the defendant is a title by possession. It is an undisputed fact in this Case-that 18, the testimony on the part of the defendant tends to astaQlish it, and, thf;)re is nl? testimony contradicting the defendant's husband in May,18.61, entered upon these premises, and built a h8Jlseor shanty; that the defeI;ldant's husband continued to reside on family until he died, in September, 1882. . , It is' urged, and much talk is had here. about the defendant Mrs. bavlxlg rights here aside from her husband. I say to you, as amatterVC law, that bym,ere possession, as long as her husband was pf the fa,Plily, she coulu gain nothing by her posses- ·
sian. Her possession was simply subordinate to her husband's possession. He had the right, if he entered there without right, to admif that he bad no rights there, and that admission would be binding upon her. If the party owning the land found CoIlins in possession of the property, he was not obliged to go to his wife and. ask: by what right 4e but ifhen:llide negotiations with' Collins to take a Jease, or Collins admitted he had no rights there, stich action was bind. ing UPOll Mrs. Collins. Now, the testimony shows. without there is ,nO.qUestion made upon it-that Mrs. CoIlins was probably an industrious and hard-working wife and mother. She had a large fam· ilyof children, and worked hard to support those children, and may even have done more than the husband towards supporting them; but the husband was the head of the family in the eye of the law,· and whatever he did in to this property was binding upon her' and the family, no matter if he was a drunkard, unless his drunkenness was producedoI occasioned by the act of the parties now cIaimiQg as against her. The law provides, in substance, that unchallenged, uninterruptedpossession of lands, under an assertion orclaim of title, or aninterest in them for the term-of 20 years, protects that title; but it !tlust be continuous, <lomplete, and unbroken for the entire 20 years. Now, there is no doubt but what the Collins family went in as I said, in 1861, and t)Jat they have remained upon the premises ever since that time. If they entered upon those premises as mere squatters, without asserting any- title whatever,just merely by the sufferance of the owner, they could onlyaequire, in the' extremest point uf, view, a title as against that owner, by that they entered ther& by some right of their own, and .continuing thatpos'session and that assertion of right until the expiration of 20 years. Now, is that state of facts established in behalf of this defendant, admitting that she succeeds to the rightswhicn began to inure under her husband? The testimony on the part· of the plaintiff to show that, in the early part of the year 1871, Mr: Henry Jones was <m theSe premises in company with Mr. SamuelJ. Walker, who was then the owner of the patent or papertitIe; that Mr. Walker and Mr. Jones went to the house where ·th& Collins family resided; that they saw Collins there. Mr. Walker asked Collins what right he claimed there,or why he was there. Collins said, in substance, that he was a mere squatter; he did not (llaim any right Walker then said to him: "You can stay here until I want it, or until I give you notice toleave.'l This is the substance of Jbnes' testimony as to what took place, as I remember it, and it tends to show what did take place in 1871. The testimony further shows, withaut doubt,-because there is no testimony contradicting it, and the testimony is all one wayan the subject, -.-,.that in May, 1877, after Walker ha.d sold, and after the paper title had . become vested in Cooper,......Cooper being represented here by the firm of Rees, &Co.,-Pierce, One of the members of the firm, went upon the premises, and found Collins and his family ill possession; that he, Collins, claimed possession to a much larger tract than this block, but he finally agreed to give up the surrounding blocks if he could havo a lease
DAVEIS V. COLLINS.
for a certa1n term of, block 111, now in controversy; and that sucb tiations were had that it was agreed that he should take a lease, and that on the day this lease bears date he was at the office of Rees, Pierce & Co. with Judge Wood, (then a lawyer of this city, of high standing as an able and conscientious man,) as his attorney, and who died only a few months since, and there the lease which is now offered in evidence was The testimony further tends to show that after this deed was made the witness Col. Pierce was on'the premises, and saw Collins yet in possession. That afterwards the title passed from Cooper to Pierce, and,,(.rom Pierce t? Bridg:, then went upon premises, and found the Col11ns famIly In possesSIOn; that he saw Colhns, and he, still admitted that he was there under the lease, and not under any other title; and that be was willing to stay on, even after the expiration Of the lease, on the terms of the original lease, and that he was permitted to do so. Now, if a person entering upon possession of premises without title, and as a mere squatter, acknowledges the ownership of any other persoR in the property, that breaks the effect of the statute at once. The ni6ment that the person in possession of the premises acknowledges that he is not the owner, the running of the statute, in common language, is broken, and the 20 years, or whatever time has run, counts for nothing. So if the testimony is credible to your satisfaction that Collins, in 1871, acknowledged to Walker in the presence of Jones, that he was a mere squatter, then he gained nothing by the possession which had continued from the time he entered in 1861. Then, again, if he took a written lease 'in 1877 from the then owner, Cooper, he has estopped himself, in the language of the law; that is, he has prevented himself from setting up any title as against Cooper, or any person claiming under Cooper. He has admitted Cooper's title. He cannot dispute his landlord's title. If either of you, being the owner of land, makes a lease of it, your tenant cannot deny your title. He has the supre'macy of your title to the premises, and he cannot sElt up any title in his own favor, and he cannot even acquire an outstanding title as against you while he holds a lease under you.' , So, if you believe that this man, Collins, executed this lease at the time that is stated, that is the end of all claim to any title on the part of the present defendant here, the widow of this man Collins. She can take nothing except what she takes from the acts of her husband,and if the statute would not protect him if living, it would not protect her, he being dead. The mere fact that this woman was in a certain and common sense the leader of the family, the person upon whom they depended for their support, was the energetic and industrious and faithful . and intelligent head of the family in a certain sense, does not count for anything in her favor; that is to her credit as a wife and as a mother, but not in obtaining title to this property. Then, agllin, if, being in possession of this property, having acknowledged no other ownership to it, she allowed it to be sold for taxes before her 20 years' title had accrued, that breaks the running of her right of v.43F.no.1-3
under it, and it, to start and ,run again.for 20 b,efore she can anott:ter title as against the tesuI:Q.ony is undispnte4here that in 1873 the laIid inque&tionwas sold forta:xes,and a deed was Illade to the Qity of Chicago, which title has :passed to the llresent plaintiff. ,Further, that later on, and in the year 1874, the same premises weie sold for a South Park assessment, and bid; in the South Park and a deed made to the South Park commissioners by c1erk',and the ,present plaintiff is with whatever title by thes,e ta;x-deeds, as the proof shows. fa,cts break the contihuity of the running of the defendant's title, because no 20 years had elapsed. from the time the defendant entered until tbetitleaccrued under " " ,,' , of in this, case, as a question . TIlen, the only question, I of fact tl1at is'to be passed'u'ponby'vou,Ois, was this IDllDcompetent to make a contract aUhe tIme made" the lease in 1877? As against the present plaintiff, wh() stranger to him, the mental condition of this at,that tim:e cuts no figure. He had executed a paper which, face"purported to he a complete acknowledgment of Cooper's superiorityoftitle. He had, made himself Oooper's tenant, ,and if there existing inqi(want of mental cltpacity for setting aside thatleaae,asserting that it was obtained when he was drunk, or not competent to make alease, that sQould have been done in a court of equity in', alit after they became aware that there was such a. paper. Now, the proof shows that thts man Collins lived until December, 1882,over fiveyearaafter the lease was executed; and the proof also tends to show thatbe admitted himself in possession un4er the lease some two 'years ,after 'he had ,'tlloken it. He died in December;. 1882; as the proof shows;, ye,t he takes, no steps to attack this, lease which he had made, a.nd the, wife has taken no steps to attack it since., Theycould have gone into l!o court equity, if they had any foundation for doing it,btlt thetcannot ,the defense that Collins was incompetent to make n lease in a coun of So, gentlemen of the jury,upon the admitted facts ill this,case, r the plaintiff is entitled to and you may rendet a verdict for the plaintiff without leaving your seats. . \..
HOLLANDER t1. BAtZ.
Bill, Consul General, etC.!
(D£striet Court, S.D. New York. June 24, 1890.)
In a BUit for libel the defendant was granted leave to Berve an amended answer setting' up a justification of the alleged libel., which was not pleaded in the original answer, notwithstanding the lapse of more than seven months between the fil. ing of the original answer and the application to amend.
CONSUL-SAFE CONDU(l'l' REFUSED.
Wbere;ln a libel suit against a foreign conSUl. by a plaintiff who had been exfrom the country which. the consul by order of its governtIlflnt, the consul applied for a commission to examine witnesses in such foreign country, the government of which refllsedto allow plaintiff 'to return there, and attend such colllmb!:sion, it was heZd that, as.the government of 8uchforeign country stood in the virtqal relation of principal to the defendant, because the alleged libel was by him under orders from such government, it would not be ;just that such an ,important part of !>he trial of the cause as involved the examination of witnesses should be transferred to the jurisdiction of the government which refused: to llllow the plaintiff to be present, and that, except as to the proof of dl?Co . umellte the motion for a commission should be denied. .
At Law. On motion to amend answer and for commission. Hollander having in July, 1889, sued Baiz, as consul general of Guatemala in New York, for an alleged libel, the latter, in September, 1889, answered that he was a public minister, and as such, exempt from suit, and afterwards moved for a commission to take testimony in Guatemala. Th,e motion for a commission having been denied unless the government ofGuatemala shquld furnish plaintiff, whom it had expelled from Guatemala, with a saftl conduct, to enable him to be present at the 659,) which safe conduct the execution of the commission, (40 Fed. refused to give, and a motion to dismiss the complaint on the ground that defendant was a public minillter having been denied, (41 Fed. Rep. 733; approved, In re Baiz, 135 U. S. 403, 10 Sup. Ct. Rep. 854,) the defendant, in May, 1890, moved amend his answer by setting up the truth oithe alleged libelous publication, and renewed his motion for a commission to take testimony in Guatemala. BiUing8 & Cardozo and J08eph H. Ohoate, for motion. Robert D. Benedict, in opposition. BROWN, J. Notwithstanding the great laches in making the application for the proposed amendment of the answer setting up the truth of the alleged libelous matter, and the changes of view which have led to the application, I think it should be granted, together with leave to issue a commission for the examination of witnesses in Guatemala so far as is necessary for the proof of any paper, document, record, report, decree, or sentence on file in the archives of the United States consulate in Guatemala, or in any court, public department, or public office in Guatemala, and filed therein prior to the decree of May 14, 1889, and referred to in the said decree, or pertinent thereto, the originals whereof cannot be produced on the trial here, and of which copies shall not be con-Reported by Edward G. Benedict, Esq., of the New York bar.