
    George W. Phillips, Receiver, vs. S. S. Smoot and Alexander R. Shepherd.
    At Law.
    No. 15,191.
    { Decided May 1, 1882.
    i The Chief Justice and Justices Cox and James sitting.
    1. Plaintiff sued defendant as guarantor, declaring on a paper purporting to be the guaranty of the defendant and described it as bearing date November 13, 1874. The principal contract bore date November 13, 1874, and was signed by the principal only: at the foot thereof, and on the same sheet of paper, was the contract of guaranty signed by defendant only; it bore no date, but referred in its terms to the principal contract; it was proven by parol evidence that both contracts were signed the same day.
    
      Held, That these contracts were separate instruments and that the guaranty being signed by a different party did not take its date from the principal contract; as it was not dated, it, therefore, did not conform to the paper described in the declaration and was not admissible in evidence to prove the conrt act of the defendant.
    2. A receiver appointed to take possession of property, but required by the order appointing him to give bond before proceeding to act, cannot, until such bond is given, legally dispossess a party in possession.
    3. If a party being rightfully in possession of real estate, sign a lease agreeing to pay rent to one whom he supposes to be a receiver with authority to take possession of the property, he is not estopped from afterwards showing the want of authority and title on the part of the lessor; such a case does not come within the rule that the tenant shall not deny the title of his landlord.
    Statement oe the Case.
    Motion for new trial on exceptions.
    The plaintiff began this suit by filing the following declaration entitled as above :
    “ The plaintiff is receiver in a certain cause pending in the Supreme Court of the District of Columbia between Hugh A. Maughlin, plaintiff, and Charles H. Winder et al., defendants, said' cause numbered 4002, Equity docket 14, and sues by virtue of a certain decree passed in said causefon the 13th day of November, A. D. 1874, and a certain other order made therein on the 13th day December, 1875.
    
      “ And the plaintiff sues the defendants for that the plaintiff did on the 13th day of November, A. D. 1874, at the city of Washington, District of Coulmbia, demise that certain dwelling house and premises numbered, &c., in the city of Washington, to the defendant, Samuel S. Smoot, to hold and occupy the said premises at a monthly rental of $166, 66f to be paid on the last day of each calendar month as long as said renting should continue, in consideration whereof the said defendant, Samuel S. Smoot, by his deed dated on said 13th day of November, A. D. 1874, at the city of Washington, in' the court to be produced, covenanted to pay to the plaintiff the sum of $166.66f on the last day of each calendar month so long as the said renting should continue.
    “And the defendant, Alexander K,. Shepherd, by his deed dated'said 13th day of November, A. D. 1874, at said city of Washington, in court to be produced, covenanted and agreed in consideration of said letting from the plaintiff' to the defendant, Smoot, to assure and guarantee, and did in fact assure and guarantee, to the plaintiff the prompt payment of the rent covenanted to be paid by the said defendant, Smoot, as hereinbefore set forth. And the plaintiff' avers that the defendant, Smoot, took possession of said premises and still continues in possession thereof, and further the plaintiff says there is now due him as rent under said lease the sum of $l,666.66f with interest on the same as follows : On $166.66f from March 31, 1875 ; on $166.66-| from"April 30, 1875 ; on $166.66-f from May 31, 1875 ; on $166.66| from June 30,1875; on $166.66f from July 31,1875 ; on $166.66f from August 31,1875 ; on $166.66-f from September 30, 1875 ; on $166.66f from October 31,1875 ; on $166.66-f from November 30, 1875 ; on $166.66-|- from December 31, 1875.
    Andlplaintiff avers that demand has been made upon the said defendants, Smoot and Shepherd, for the payment of the said sum due as aforesaid, but that the same has not been paid nor any part thereof. Wherefore the plaintff claims the said sum of $1,666.661 with interest thereoü as aforesaid and costs.
    To this declaration the defendants pleaded separately. Smoot pleading :
    1st. Non est factum,.
    
    2d. At the time of bringing this suit defendant held the right to, and the possession of, said premises, of which he had not been divested, and said lease passed nothing to him.
    • 3d. The said lease was executed by the plaintiff without authority and is void in law.
    Issue was joined upon the first plea and to the second and third pleas plaintiff’ replied:
    That the said defendant accepted possession of the demised premises from the plaintiff’ under the lease declared upon and is estopped from disputing the lessor’s title.
    Upon this replication issue was joined, Shepherd pleaded :
    1st. Non est factum.
    
    2d. Want of notice of Smoot’s failure and default.
    Issue was joined on the first plea and to the second a demurrer was interposed which at the trial was sustained.
    On the trial plaintiff offered in evidence the following paper writings purporting to have been executed by the defendants to plaintiff:
    “ This indenture made this 13th day of November, A. D., 1874, between George W. Phillips, receiver in a cause pending in the Supreme Court of the District of Columbia, numbered 4002, Equity Dock., of the first part ; and Samuel S. Smoot, of the city of Washington, District aforesaid, of the second part, witnesseth that the said party of the first part hereby leases to the said party of the 2d part the premises numbered 211 4-| street, northwest, in said city of Washington, at a monthly rental at the rate of $166.66f, to be paid on the last day of each calendar month so long as said renting shall continue.
    “In case the said rent, or any monthly payment of the same shall not be paid punctually on the day when the same shall become due, but shall remain due and unpaid five days after the same shall become due, then at the option of the lessor, this lease shall at once cease and determine and the said receiver shall enter without previous notice of any sort, all such being hereby waived. The said party of the second part hereby agrees to pay the rent above reserved promptly as the same shall become due, and consents to the forfeiture and re-entry hereinbefore provided for at the option of the lessor in case of default in payment of said rent.
    “It is understood by all parties that this lease shall commence from the date of this indenture this 18th day of November, 1874.
    “ Samuel S. Smoot, (Seal,)
    * “ G-. W. Phillips, Receiver, (Seal.)
    
      “ Chas. H. ’Winder, Witness.”
    
    At the foot of this lease and on the same sheet of paper was the following :
    
      “I, Alex. E. Shepherd, of the city of Washington, D. of C., in consideration of the letting aforesaid, do hereby assure and guarantee to the lessor named in said lease the prompt payment of the rent reserved therein, and in case the same is not paid by the said lessee, I hereby make myself responsible for the same, and I consent that the clause therein providing for a forfeiture shall apply at the option of the lessor and at his option only.
    “ Alex. E. Shepherd. (Seal.)
    
      “ Chas. H. Winder, Witness.”
    
    The defendant objected to the admission of either of these instruments, but the objection was overruled by the court.
    Plaintiff then testified that after his appointment as receiver he visited the premises described in the declaration which he found in the possession of the defendant Samuel S. Smoot, that thereupn he informed Smoot of his (plaintiff’s) appointment, and said to him that unless he at once gave him a lease with' good security he would dispossess him and the same day the lease and guaranty of the defendants were furnished, that several months rent was paid by Smoot, but that all the rent claimed was due and unpaid. The order of the court in equity authorizing and directing plaintiff to sue- was. introduced, and plaintiff, after admitting that he-had never given bond as receiver in said equity cause, rested-his case.
    Defendant then offered in evidence the order appointing plaintiff' receiver. This order, which was entitled in the. equity cause, and' dated' November 13, 1874, after appointing the plaintiff receiver and declaring that “ as such receiver ” he is authorized and directed to demand and recover possession “ of the premises in question ” and to rent the .said premises and receive rents therefor, “and further or-, dered ” that the said receiver before proceeding to act as such file in this court his bond with surety t*o be approved by the court, conditioned in the penal sum of two thousand dollars,1 for the faithful performance of his duties as said receiver.”
    The defendants then rested, and thereupon requested the court to instruct the jury as follows :
    . “ If the j ary find from the whole evidence that the order appointing the plaintiff' receiver, provided that before proceeding to act as such, he should file a bond with surety, to be approved by the court, conditioned for the faithful performance of his duties as said receiver, and that the plaintiff never complied with said order by filing such bond, and they further find that the defendant, Smoot, was in possession of said property, and that the defendants executed said lease and guaranty under mistake and misapprehension of the authority of said receiver, the plaintiff' is not entitled to recover.’.’
    "The court, however, refused to so instruct the jury, but directed a verdict to be rendered for plaintiff, which was accordingly done. To the refusal of the court to exclude the lease and guaranty as evidence and to instruct the jury as prayed, and to the instruction of the court to the jury to find for plaintiff', the defendants excepted and moved in general term for a new trial.
    A. C. Bhadlby for defendants :
    1. The contract of guaranty was -improperly admitted in ' evideuce in support of the second count of the declaration
    
      Because it is averred that " defendant, Shepherd, by his deed dated said 13th day of November, A. D. 1874,” and the same is not dated. 1 Ch. PL, 16 Am. Ed. Perkins, 318. 1 G-reenl. Ev., sec. 56, 58, 61 ; Lord Rayra., 1043 ; 2 Campb., 307, note; 4 East Rep., 477; Stephens vs. Graham, 7 S. and R., 505 ; Church vs. Eetterow, 2 Pa., 801 ; Metcalf vs. Standeford, 1 Bibb., 618 ; Grant vs. Winn et al., 7 Mo., 188.
    Because there is a further variance between the statement of the contract in the declaration and the proof. I Oh. PL, 268-9, and cases 316-7 ; 1 Greenl. Ev., 58, 66, 69.
    2. The plaintiff had no title, or authority as receiver, because he never complied with the order appointing him, by executing the required bond. Thompson on Prov. Rem., 478, 480, 481; Edwards on Recrs., 98 and 99; High on Reel’s, sec. 121; 1 Sm. Oh. Pr., 628, 635 ; Banks vs. Potter, 21 How. Pr., 471-2 ; Winchester Tr., vs. The Union Bank of Balto., 2 G. and J., 73, 79; Johnson vs. Martin, 1 Thomp. & Oook, (N. Y.), 504.
    3. Defendant Smoot is not estdpped to avail himself of the want of title and authority in the receiver, because he ■ was in possession of the property, of his own right, and whilst in possession, was induced by the representations 'and threats of the receiver, and under mistake of his authority, to take a lease from him. Bigelow on Estoppel, lix.,-356-360, 364 ; Tewksberry vs. Magraff, 33 Cal., 237 ; Swift vs. Dean, 11 Vt., 326 ; Shultz & Hurd vs. Elliott, 11 Humph.,. 183; Cornish vs. Searall, 8 B. & C., 471; Eranklin vs. Merida, 35 Gal., 558 ; Miller vs. McBfien, 14 S. & R., 382. .
    It is immaterial so far as this defense is concerned, whether the lease is parol or under seal, see Bigelow Estop., lix, 348, 350, 352.
    -And moreover, the estoppel pleaded is only an estoppel in pais.
    4. Defendant Shepherd is not estopped to deny the title and authority of the receiver : because as to him there can’ be no estoppel in pais. Bigelow Estop., 75, xlix.
    And there is no estoppel by deed : and, moreover, he does-not deny any statement or recital in the deed.' 'Kepp' vs. Wiggett, 10 C. B,, 35.
    Jas. G. PayNE and R. Ross Perby for plaintiff.
   Mr. Justice Jambs

delivered the opinion of the court:

It appears in this case that in a certain chancery suit the plaintiff, Phillips, was appointed receiver of the property involved therein, with direction that the said receiver, before proceeding to act as such, file in this court his bond with surety to be approved by the court.” Without filing his bond as required he called upon Mr. Smoot, who was in possession of the premises, to attorn to him, saying that if he did not he would turn him out. Thereupon an arrangement was made by which Smoot was to pay $166.66f- per month rent and to take a lease, which was dated the 13th of November, 1874. That lease runs in the following words:

“This indenture made this 13th day of November, A. D.} 1874, between George W. Phillips, receiver in a cause pending in the Supreme Court of the District of Columbia, numbered 4002, Equity Doe., of the first part; and Samuel S. Smoot, of the city of Washington, District aforesaid, of the second part, witnesseth that the said party of the first part hereby leases to the said party of the second part, the premises numbered 211 Eour-and-half street, northwest, in said city of Washington, at a monthly rental at the rate of $166.66f, to be paid on the last day of each calendar month so long as said renting shall continue.
“ In case the said rent, or any monthly payment of the same shall not he paid punctually on the day when the same shall become due, but shall remain due and unpaid five days after the same shall become due, then at the option of the lessor^ this lease shall at once cease and determine and the said receiver shall enter without previous notice of any sort, all such being hereby waived. The said party of the second part hereby agrees to pay the rent above reserved promptly as the same shall become due, and consents to the forfeiture and re-entry hereinbefore provided for at the option of the lessor in case of default in payment of said rent.
It is understood by all parties that this lease shall commence from the date of this indenture this 18th day of November, 1874.
“ Samuel S. Smoot, (Seal.)
“ G-. W. Phillips, Receiver. (Seal.)
Chas. H. "Winder, Witness.

Mr. Phillips required that Smoot should give security. On the same paper, therefore, with this lease the defendant Shepherd signed the following :

“I, Alexander R. Shepherd, of the city of Washington, D. of C., in consideration of the letting aforesaid, do hereby assure and guarantee to the lessor named in said lease the prompt payment of the rent reserved therein, and in case the same is not paid by the lessee, I hereby make myself responsible for the same, and I consent that the clause therein providing for a forfeiture shall apply at the option of the lessor and at his option only.”

This is simply signed Alex. R. Shepherd, with a witness.

That paper itself is not separately dated, while the lease, just below the foot of which this paper of Shepherd’s is written, is dated November 18th, 1874. It was proved that the signature of Shepherd was made on the same day with the other. The plaintiff has joined these two parties as joint obligors, and has set forth that Shepherd, by a deed of a certain date, given plaintiff, undertook as that paper sets forth.

The first question presented, is whether this .paper conforms to the description in the declaration. The plaintiff testifies that it is a paper dated the 13th of November, 1874. Unless it is so dated, under a proper construction of these two papers, it is not the paper declared on. We are unanimously of opinion that these are separate instruments. They are signed, one by Smoot and the other by Shepherd.’ And although Smoot’s paper is dated, the other is not, for, being a paper containing a signature of another party, and being an instrument of itself, it does not take its date from the former.- Nor does not in its terms embody the other in such a way as to show that it is part of that other. It refers to another paper and adopts some of its terms, but we do nt»t think that makes it the same instrument, any more than a page which refers to some other page is a part of the page referred to. It was error, therefore, to admit it in evidence.

There is another point to which we might speak as we have no doubt on the subject. It is the question as to the right of the receiver to maintain his action as landlord.

It is claimed that inasmuch as Smoot took possession under this alleged .lessor he is estopped to deny title. We are of opinion that until the receiver had given his bond he had, as against Smoot, no- right of possession.

; The court directed that the receiver should take away-Smoot’s possession and hold the property for the court. Until his possession should be taken away, in strict pursuance of that order, he was rightfully in possession. Therefore, when the receiver demanded of Smoot that he attorn to him, he made the demand upon a man who was there claiming to be in possession of his own right. lie could not be displaced until the order .of the court appointing the receiver was complied with, to wit, that before the receiver should act as such he should give bond.

That being their situation, the receiver, having given no bond, had no legal right to the possession, and the defendant being in possession as of his'own right when that demand was made on him, it cannot be said, in law, that in making this lease he took possession under the receiver ; all he did was to use words, he did no act. We do not think that the circumstances of this case bring it within that well-known class of cases which declare that if a person goes into possession under another he cannot deny his title.

The result of our conclusion is, that the judgment must be reversed and the case remanded.  