Supreme Court of United States.
*445 Messrs. C.W.B. Allison and D.B. Lucas, for the plaintiff in error.
Mr. C.J. Faulkner, contra.
*451 Mr. Justice STRONG delivered the opinion of the court.
Before proceeding to a consideration of the several errors assigned, it may be remarked that if the defendant was in possession under a lease from the plaintiff, or from any one to whose reversion the plaintiff had succeeded, he was not at liberty to controvert the title of the plaintiff or of that reversioner, while he remained in possession. In view of this undoubted principle it is impossible to see how he could have resisted a recovery, if in fact he was the tenant of the plaintiff, or if the plaintiff had succeeded to the title of R.D. Shepherd. But it is very plain that during the lease of 1859, he was Shepherd's tenant, and that after its expiration he continued a tenant from year to year under that lease; unless the one made in 1861, or that made in 1865, supplanted it. Both the later leases were made to his wife. As he did not dissent, they became her chattels real, and during the coverture they belonged to him. Necessarily, therefore, his possession was in law under those leases, or one of them, or it was as a tenant of Mr. Shepherd from year to year, in virtue of his holding over after the expiration of the lease of 1859. How then he could show, so long as he retained that possession, that Shepherd had no title, or that Shepherd held in trust for his wife, or that any one who had succeeded to Shepherd's title, or one, though not thus succeeding, to whom he had attorned by the payment of rent, had no title or held in trust for his wife, we are not informed, nor can we be. That was a defence which he was not at liberty to set up, even upon his own showing of the facts. That the plaintiff had succeeded to Shepherd's title is, we think, very certain. The will, as we have seen, devised and bequeathed to Ellen Brooks, the testator's daughter, and to her two sons, all his property, real, personal, and *452 mixed, and directed that they should be put into possession of it without delay. If this stood alone, it could not be doubted that the devisees named took the entire estate of the testator. The third item of the will, however, it is insisted, gave the estate to the executors. Its language is: "I constitute and appoint my two grandsons, Peter C. Brooks, the younger of that name, and Shepherd Brooks, executors of this my will, giving them seizin of my entire estate." But this clause must be construed consistently, if possible, with the other provisions of the will, so as to give effect to all its parts. Hence, it is clear that the testator intended by the word "seizin," possession; and that he gave it to his executors for the purposes which he had in view when he constituted them executors. The will exhibits no reason why they should be invested with the title to the testator's real estate, and such an investiture is directly in conflict with the second item, which casts the title by apt words upon his daughter, the plaintiff, and Shepherd Brooks. Hence, it must be held that by force of the will and the deed from Mrs. Brooks and Shepherd Brooks, the plaintiff had succeeded to the reversion of Mr. Shepherd, and to all the right which his co-devisees ever had. His title, therefore, was unassailable by the defendant, and his right to the possession as against the defendant was unquestionable, if notice of the termination of the lease, and of his intention to resume possession, was duly given.
This view of the case makes the consideration of the specific errors assigned very easy. So far as they are aimed at showing that the defendant did not stand in the relation of a tenant of the plaintiff, or of one to whose reversion the plaintiff had succeeded, they are material, but unless that was shown, they can have no effect upon the judgment which has been obtained.
The first is, that the court refused to admit in evidence the deposition of Catharine Lucas, the wife of the defendant. That it is a rule of the common law, a wife cannot be received as a witness for or against her husband, except in suits between them, or in criminal cases where he is prosecuted *453 for wrong done to her, is not controverted. But it is argued, because Congress has enacted that in civil actions in the courts of the United States there shall be no exclusion of any witness because he is a party to, or interested in the issue tried, the wife is competent to testify for her husband. Undoubtedly the act of Congress has cut up by the roots all objections to the competency of a witness on account of interest. But the objection to a wife's testifying on behalf of her husband, is not and never has been that she has any interest in the issue to which he is a party. It rests solely upon public policy. To that the statute has no application. Accordingly, though statutes similar to the act of Congress exist in many of the States, they have not been held to remove the objection to a wife's competency to testify for or against her husband. And in West Virginia it has been expressly enacted that a husband shall not be examined for or against his wife, nor a wife for or against her husband, except in an action or suit between husband and wife.[*] Were there any doubt respecting the question, this statute would solve it, for the act of Congress of July 6th, 1862,[] declares that the laws of the State in which the court shall be held, shall be the rules of decision as to the competency of witnesses in the courts of the United States.
The second assignment of error is, that the court sustained the plaintiff's objections to certain other depositions offered by the defendant, so far as they tended to prove that Catharine Lucas obtained title to the property in controversy under the will of R.D. Shepherd, and so far as they referred to conversations of the witness with Mr. Shepherd concerning his purposes respecting the farm. The objection sustained by the court was to the subject-matter of the testimony, and it was sustained because it was inadmissible for the defendant to introduce evidence to impeach his landlord's title. There can be no doubt the ruling was correct. For the same reason the ruling complained of in the third assignment was unobjectionable. Indeed, it is difficult to *454 perceive what possible bearing upon the case the letter of Mr. Shepherd to his daughter and grandsons could have. Certainly it contained nothing that tended in the slightest degree to support any defence the defendant was at liberty to set up.
Nor can we perceive that the record of the proceeding for a forcible detainer, commenced by the plaintiff in 1868, was pertinent in any degree to any matter in controversy in this case. It was, therefore, properly excluded. A judge well performs his duty when he guards the jury against having their attention diverted from the real issue by the introduction of immaterial evidence.
The fifth assignment is, that the court erred in excluding what is called a transcript of a distress warrant issued by Chapline, agent for the plaintiff, against the defendant, and also in excluding the forthcoming bond. They were offered apparently to show that the notice to quit on the 1st of April, 1870, had been waived by the plaintiff, but they were rejected by the court because not properly certified. Whether the court erred in this or not is of no importance, for the fact that such a distress warrant was issued the defendant was allowed to prove by other evidence, and he had the full benefit of such proof. There was not a fact stated in the transcript which did not otherwise appear, and the facts were not controverted. The error of the court, therefore, if there was an error, was perfectly harmless, and it would not justify directing a new trial.
The remaining assignments which require any notice all relate to the charge. The first instruction asked by the defendant and refused by the court was, in substance, that the distress warrant sued out by Chapline, as agent of the plaintiff, for rent claimed to be due for the year ending April, 1871, levied as it was on the property of the defendant, who had given a forthcoming bond, and being still pending, constituted a waiver of the notice to quit, and, therefore, that the defendant was entitled to a verdict. The prayer overlooked the fact, of which there was evidence, that Chapline had no authority from the plaintiff to issue the distress warrant, *455 and that his act had been disapproved by the plaintiff's attorney. The second prayer was, in effect, that no expression of disapprobation by the plaintiff or his attorney of the act of the agent in issuing the distress warrant could defeat its operation as a waiver of the notice to quit, while the proceedings on the warrant were pending, and so long as the plaintiff held the forthcoming bond for the property distrained. This prayer assumes as a fact that of which there was no evidence. It assumes that the plaintiff held the forthcoming bond. But it is very manifest that the defendant was not entitled to have either of these instructions asked for by him given to the jury. It is true the notice to quit might have been waived, and doubtless should have been regarded as waived by the distress warrant if it had been issued by the plaintiff, or by his authority. But waiver is always in part a question of intent, and there could have been no intent to waive if the act claimed to have been a waiver was either unknown to the plaintiff, or unauthorized by him, or not ratified by him. That the distress warrant was unauthorized, and, indeed, disavowed, is a fact of which there was evidence, and no attempt was made to show that it had ever been ratified. The defendant has, therefore, no reason to complain that his prayer for the instruction mentioned was refused. The court did charge that notice to quit was necessary to entitle the plaintiff to recover, and that if notice was given, and afterwards a distress warrant was sued out to recover rent due and in arrear for the leased premises, the presumption of law would be that it was sued out with the assent of the plaintiff, in which event he could not maintain the action unless the evidence satisfied the jury that the agent, Chapline, exceeded his authority in suing out such warrant, acting without the knowledge and consent of his principal. More than this the defendant had no right to ask.
The third and fourth instructions asked for were also properly denied. They were in keeping with the efforts made by the defendant throughout the trial to attack the title under which he had held as tenant. If not still retaining *456 possession under the first lease made to him, he was in under a subsequent lease made to his wife, which he himself had given in evidence. It was not open to him, therefore, to show that some other person had the legal title, or a better title than that of the landlord.
It would be sufficient to say of the seventh assignment of error that it has been made in entire disregard of the rules of this court. It avers simply that the court below erred in giving the instructions which were given to the jury, on its own motion (that is, in the general charge), in lieu of the instructions asked for by the parties, but in what the error consisted, or in what part of the charge it is contained, is not specified. That under the twenty-first rule this is an insufficient assignment is very plain. Were it, however, made as directed by our rule it could not be sustained. We have already said that, under the will of R.D. Shepherd, his daughter and two sons took the legal estate in the lands devised by him. We might have added that the sealed letter accompanying the will was not testamentary, and that it in no respect created any estate, legal or equitable, in any one.
It has been conceded in the argument, as it should have been, the court properly ruled that the letter of P.C. Brooks and Shepherd Brooks, executors, to the defendant's wife, dated November 29th, 1865, with her reply to it, and the subsequent modification agreed upon, constituted a lease of the premises to her. But it is denied that the lease enured to the benefit of her husband, and brought him into the relation of a tenant under the lessors, because, as it is claimed, it was a lease for her separate use. This claim, however, is without any foundation in the contract. There is no word that looks to the exclusion of the husband. No particular phraseology, it is true, is necessary for the creation of a separate estate for a feme covert, but there must be something to show an intent to create it, and nothing of the kind appears in this case. The court, therefore, correctly charged the jury, in the absence of any proof of dissent by the defendant, that the lease became his property, and that in force of it he became the tenant of the lessors. *457 That the lease created a tenancy from year to year is too plain to need argument.
There is nothing more in the record or in the assignments of error that requires notice. We fail to perceive anything of which the defendant below, now plaintiff in error, can justly complain, and the judgment is, therefore,
AFFIRMED.
[*] Civil Code of 1868, page 620.
[] 12 Stat. at Large, 588.
