Nokes on the demise of Hogg v. Shaw, 1 N.C. 457, 1 Cam. & Nor. 457 (1803)

June 1803 · North Carolina Court of Conference

1 N.C. 457, 1 Cam. & Nor. 457

Nokes on the demise of James Hogg, vs. Marrian Shaw, et. al.

There were blanks left in the declaration, in this cafe for the date of the demise, and the commencement of the term; it was perfect in other respects. The jury found a verdict for the plaintiff; and the defendants moved in arrest of judgment, on two reasons, to wit : 1st. That there was no exuding term Hated in the declaration. 2d. That there was no date to the demise.

Seawell, Attorney-General, for Defendants.

It was contended in the court below, that the present defect was like the cases of impossible dates, and that the objection coming after a verdict, is cured. That had the objection been taken at the trial, the court would have amended. I will endeavour to answer them in their turn. The action of ejectment is a possessory action, and the declaration contains a statement of such facts as plaintiff must make out on the trial; namely, a title in his lessor, a lease to him, his entry afterwards, and the ouster, by defendant, after the entry. The lease, entry and ouster in some instances, are still proven, in others admitted by the common rule, and thus the parties proceed to trial without making any further question of them. The notion I entertain of a verdict curing a defect, is, that it is some matter of form which does not relate to the plaintiff's title, and is either expressly cured by some one of the statutes, or else is the omission of some allegation which the court will intend was necessarily proven, or the plaintiff would not have obtained a verdict, This leads us to examine whether this be a mere matter of form, or whether we are left at liberty to presume it proven; and a discussion of these two points will answer all the reasoning in support of the declaration. The demise which is stated to hive been made, is surely for some purpose; it is intended to shew that the plaintiff is entitled to the possession. Why must it be stated to have been made at a certain time? That it may appear on the face of the proceedings that the entry of, and ouster by defendant were tortious. It is not contended that lease with a date would be void; such an one would take effect from the delivery; but it is said that when an ejectment is brought upon such a lease, the plaintiff should state in his declaration the time it was made, in order that the defendant may appear a wrong doer. If it be said that the lease is mere matter of form, whence arises it, that in a declaration where the plaintiff claims title from two lessors, though in truth they be the absolute and indisputable owners of the land and entitled to possession, yet when it appears on trial that they are tenants in common, the plaintiff cannot recover? So if it should appear that one was tenant for life and the other remainder-man. Cro. Ja. 613, 6 Coke Rep. 14, 15. Yet if the lease was mere matter of form, these objections ought not to prevail, inasmuch as the plaintiffs have the undoubted right, and by laying separate demises would be entitled to recover. If the lease is mere matter of form, to what purpose are the repeated applications to enlarge the demise, or lease? If after verdict they would do no hurt, and if upon the trial the court would amend, we are left to consider, with surprise, that so many of the learned should have laboured so hard to obtain these unnecessary amendments, And it seems somewhat contradictory that the judges should consider themselves employed in the furtherance of justice, when in no event the plaintiff could be injured; and that this has been the uniform language of the courts on the enlarging of all demise. See 2 Bl. Rep. 940. 4 Bur. 2447. Hay. Rep. 323.

I am aware that it will be said, the case of Brown and Lutterloh, from Hillsborough bears some analogy to this. That was where the ouster was laid anterior to the time when the demise was stated to have been made. That case was determined upon the authority of Adams and Goose. Cro. Ja. 96. and Swimmer vs. Grovesnor, cited in Bul. Ni. Pri. (and rightly too in my opinion). There the court could form a perfect declaration by rejecting what was laid under a scilicet, for by rejecting what was laid under that as surplusage, and making the preceding word " afterwards,” relate to the time when the demise was stated to have been made, all was sensible and right, and so was the judgment of the court in Brown and Lutterloh. Compare this case with those cited; is there any part of this declaration which can be rejected, so as to supply the defect and make it sensible? Does it appear on any part of it that the plaintiff has or ever had title to the possession? For the lease, entry and ouster though fictions, are not matters of form, they are contemplated to exist, and whenever it appears that they cannot, and consequently do not, the plaintiff cannot recover. The case of Baker vs. Cole, from Bur. 1159, which was also insisted on at the trial below, may deserve a further notice. That was an impossible date. the pleadings were of Hilary term, the first of George the 3d; the demise was stated to have been made the 30th of May, in die 33 year of his said majesty, and the ouster afterwards. By examining when the pleadings were made up, and that all these things must have taken place previous thereto: that no 30th day of May antecedent, could have been in the reign of the then king; by applying these things secundum subject tam materiam, the whole could be rectified; and a further difference that there was a sensible, though a mistaken date.

But I have not been able to find a single case where an improbable date was held good in a declaration, except perhaps, where it was laid under a scilicet. It is worthy further to remark, that this certainty in the commencement of the demise, (and consequently must be stated with the same) gives birth to its common appellation of term; it is its certain commencement, and certain ending, which circumscribes and terminates it. And Mr. Blackstone, in 2 vol. of his Commentaries, page 143, lays it down, that every estate by whatever words created, that has a certain commencement, and certain ending, is an estate for years, and therefore, is frequently stiled a " term” from Terminus, and that every lease for years, which has not a certain beginning and certain ending, avoid. It was hinted on the argument below, that the demise in a declaration of ejectment is different from a lease for years; but a little enquiry only, will be necessary to convince us of the inaccuracy of such a doctrine. I will only revert to my argument on the history of the action, and only ask the method which is to be used to recover unoccupied premises; there the things are actually done, which in the present form exist only in contemplation, and the same kind of lease in the action to recover unoccupied premises, is supposed to exist or to have been made, which is actually sealed and delivered in the other case. If then, a declaration is served without any statement of demise, would a plaintiff be entitled ta judgment? Then a demise stated, which is not certain in itself, and cannot be certain by any thing on the face of the proceedings, when examined by the settled rules of law, is void and of no account. It is laid down in Runnington 90, and 1 Vent. 137, 1 Mod. 180, cited, that where the limitation in the demise is wholly uncertain, it is void, and plaintiff cannot have judgment; it is admitted however, that in the cases cited, the declaration was held good, but they prove the principle laid down by Runnington. If on the trial of ejectment, it should appear that no demise was stated could the court permit the plaintiff state one? they could not; and this is proven by the authority of Baker and Cole, before cited, where it is expressly ruled, that the court cannot aid a defective title. But in no case whatever, has it ever been held, that the court would amend a total want of title. Let this question be asked, suppose a joint lease should be stated, and upon examination the lessors appear to be tenants in common, would the court permit the plaintiff to amend? If in neither of these cases they would, it must then follow of course, that the demise is something more than matter of form. When a perfect and compleat demise is stated, the enlarging that, is only creating a larger estate, and not creating a thing which did not exist before; if then the lease turns out not to be matter of form, but the plaintiff's title, it follows of course, that it is not cured on the score of form.

But with regard to its being now considered as if upon a motion to amend, I contend that is not the light it should be considered in; it does not follow that: because the court would have amended, that the verdict would cure, for trust I have already shewn that if the verdict had such effect, the motion to amend would be in all cafes useless. Then, this not being matter of form, but really of substance, is not cured by the verdict, unless the court are left to presume that what is omitted was proven on the trial. In the whole course of the trial no question is made as to the making the lease, the defendant takes the plaintiff according to his own statement. No proof in such case could be received, and in truth die jury are never impannelled upon the demise. We, surely then, are not left at liberty to presume that which never could have happened. From an inspection of the proceedings, it appears judicially to the court, that such proof could not have happened, and therefore, you cannot presume it. The first cases wherein such verdicts cure the declaration, that suggests itself to me, is the cafe of a declaration for a cheat which mull be laid with a scienter, when a verdict has palled on a declaration not laid in that manner, the court will not disturb it because they will presume that the scienter was proven, otherwise the plaintiff could not have obtained a verdict.

John Williams, for Plaintiff.

The objections are, 1st. That there is no existing lease, 2d. No date to the demise.

There is on the face of the declaration an aspired term. The declaration is after the of one by original, and mentions that Hogg demised die premises for the term of ten years, unexpired and to come.

The verdict shews that a sufficient existing lease was admitted, or the plaintiff could not have obtained it. The term is a mere fiction, for the court compels the defendant to admit it, If any defect had been discovered, it would have been amended. After verdict the court overlooks the exception.

The court will intend any thing to make good the verdict—it will presume a sufficient demise admitted to the jury.

The date is immaterial, if no date it would take effect from the deb very, and this will be presumed. No particular day of the entry or ouster need be mentioned. The date of demise seems therefore immaterial.

2 Stra. 1011, 1009, 10122. 2 Bur. 1160, Esp. 444. 445. 2 Bur. 665, 1159, 1161, 1162. 16 & 17 Car. ch. 8

By the Court.

There is no title whatever stated in the plaintiff’s declaration, no ground whereon the court can presume an entry after the leak, and an ouster after the entry, or an unexpired term at the commencement of the lease, There lure the judgment is arrested.