Houser v. Reynolds, 2 N.C. 132, 1 Hayw. 132 (1794)

Sept. 1794 · North Carolina Superior Court

2 N.C. 132, 1 Hayw. 132

Houser v. Reynolds.

3From the day of the date, and from the date, signify the same thing-.; and according to the intent, are either inclusive or exclusive.

Ejectment. At the last le.rm of this Court this eject-incut came on to he tried, and the jury were empanelled and charged : but before any evidence given, Mr. Williams, for the Defendant, took an exception to the form of the declaration, which stated the demise to have been .made on the fifteenth day of September, in the year of our Lord one thousand seven hundred and ninety-one, to have and to hold from the said fifteenth day of September, for and during the term of five years; and that afterwards, to wit, on the same fifteenth day of September, in the year aforesaid, the casual ejector entered and ousted flie Plaintiff, who had entered on that day 'by virtue of the said lease. The exception whs, that the Plaintiff had entered and was ousted before the com-' naencement of his lease; he argued, that the words, from the date or henceforth, are inclusive of the day $ but from the day of the date, are exclusive j and cited Co. Lilt. 46. Bull. 105, 106, and many other old cases. For the. Plaintiff were cited the case of Pugh v. the Duke of Leeds, reported by Cowper, and Runninglon on Eject. 85. Judge W iiiiams was then of opinion, after a very lengthy argument on both sides, that the words from the day of the date, botli according to the true acceptation, ahd snore especially according to the legal meaning, are ex-elusive of the day, and consequently that the ouster was before the Plaintiff’s title commenced, and nonsuited the Plaintiff — but next day he granted a new trial, that the' Plaintiff might obtain a rule to amend so as to bring on the argument again at the ensuing term, when there would be more Judges present, before whom the point might undergo a thorough examination and become settled : and now at tills term, the counsel for the Plain tiff informed the Court,he was ready on the part of the Plaintiff to proceed to the trial of this cause, Inst as an objection liad been taken to the declaration, which if valid, and not to be gotten over either by amendment or by some other means, would render it useless for the Plaintiff to proceed any farther, he desired to have the opinion of the Court upon it; whereupon they directed it to be argued ■ — and the counsel for the Plaintiff insisted that the demise was "well laid in the declaration, -and commenced on the fifteenth day of September, in the year one thousand seven hundred and ninety-one* — the words from the fifteenth day of September, or from the day of the date, were inclusive or exclusive according to the subject matter, and would be interpreted either one or the other as would best answer the intent of the parties — nt tes magis valeat quam pereat; and this point was so settled in the case of Pugh & wife, against the Bake of Leeds, reported by Cowper, and recognized by Runningtoa, 85; and though formerly, as many of the old cases will prove, these words in leases were held to be exclusive of the day, yet the rule has been established of late as being incompatible with reason and good sense, in the present case should the old rule prevail, it cannot answer any valuable purpose, but the contrary ; and the lease here is entitled to a more favorable exposition than almost in any other case — it is fictitious, not real, for the purpose i>f trying a title to lands ; and to nonsuit the Plaintiff for so trifling a slip, supposing it to be one, would be rather a reproach to the law, than any thing else. If the intent of the parties is fiie true rule of making these words to be inclusive, or exclusive, as in the case cited it is decided to be, then surely the lessor of the Plaintiff and bis lessee, must be supposed to have intended such a lease as would try the title upon an ouster committed on the fifteenth of September, and consequently a lease commencing on that day.

jj contra,

it was argued that the case of Fugh & wife v. the Duke of Leeds, was an exception to the general rule of law, formed by the Court in that instance to get over the piece of manifest injustice that would have been operated by adhering strictly to the old rule. That was a lease made under a power, as a provision, for an only daughter, and had it been adjudged to have been a lease in reversion (as it. would have been, had the words from the day of the date been held to be exclusive) it would have been wholly void under the power; but here it may be construed to commence after the 15th, and yet be a good lease. It is made pursuant to a power which says it shall be void if made in reversion, and though the Court in that case, cited and examined all the old authorities, and seemed to overrule them on account of their inconsistency and incompatibility with each other, yet it is observable that in this point they were ail uniform in agreeing, that from the day of the date is exclusive. Curia advisare. — And after some days delivered their opinions :

Judge Williams

I was present at the last term, and I was then very strongly of opinion, that from the day of the date, was exclusive, but I have since altered that opinion. in law there is no fraction of a day — date signifies, the day on which an instrument is delivered; and t© say from the date, is the same thing as to say from the day of the date, and from the date is inclusive — from henceforth, is inclusive — but it can oniy mean from this day when the instrument is delivered; therefore from henceforth, from the date, and from the day of the date, must all mean the same thing; and the first of them is admitted, on all hands, to be inclusive. — Judge Ashe— From, is either inclusive or exclusive, as intended by the party at the time of making it — from such a town to such a town, in respect of distance, must mean inclusive; otherwise in the computation of distance, the space that these towns occupy will not be computed at all. It is soused in holy writ, “From everlasting to everlasting thou art God.” So also in poetry,

Great Jove laughs from his imperial throne—

«To hear the mortals boast of prowess not their own.”

Moreover the case cited from Cowper was intended to form a general rule, and to settle the law for the future; and is peculiarly recognized in Mmmington as settling the law in cases in ejectment, and establishing the antient distinction between the terms from the date, and from the day of the date.—Et per curium—The declaration is suilicient.

Note.—In the argument of this case, it tras argued, that the words coming after the “ Scilicet,” where the ouster is described, should reji cted, and the W"iJ “ afterwards’ only retained. In which case it would read thus, to have and to hold from the said 15th day of September, for and during the term of five, years, and afterwards the casual ejector entered — omitting the words, to wit, on the same fifteenth dav of September, in the year aforesaid; and for this were cited Hull, Nisi Prius 106. [Cro. Jac. 96.] and some cases from Espinasse; and also that omissions in a declaration in ejectment, arc amendable —and autliorties were cited to this pointbut the Court being of opinion tor Ihe first point made in the argument, they gave no opinion on these.

Note. — Vide Adams on Ejectment, note to page 199, where the case of Pugh v. Duke of Leeds, Cowper 714, is considered as decisive of the question agitated in this case.