
    
      John T. Syme v. Joseph A. Sanders and Septimus Sanders.
    
    Where a tenant entered nnder a landlord claiming as absolute owner, and enjoyed the premises without disturbance, neither he nor those claiming under him can defeat the rights of the landlord’s heir, upon the ground that a better title than the landlord’s subsists in some third person, or by lapse of time has been transferred to the tenant.
    The title which the landlord claims, is the title which the tenant acknowledges, whether that claim be well dr ill founded.
    
      Before Withers, J. at Charleston, May Term, 1849.
    This was an action of trespass to try title to a lot of land situate in Charleston.
    The features of the case made were not distinguishable, in any material respect, from that which was before the Court of Appeals at its last sitting in Charleston, when the cause was ordered to a new trial. On this trial, the plaintiff offered no testimony derived from the assessor and the assessor’s books, (as was offered on the former trial,) with a view to show how the lot was returned to that officer; that is to say, that up to a certain period the lot was returned as Dennis Simmons’s.
    
      A motion for a nonsuit followed the close of the plaintiff’s testimony, which was refused. ,
    The plaintiff claimed title through Dennis Simmons ; the wife of the plaintiff being the daughter of Dennis Simmons. The defendants claimed through Amos Arnold.
    The plaintiff offered a deed of marriage settlement, dated in 1815, between Dennis Simmons and Elizabeth Coveney; in which John Simmons was constituted the trustee. After the-usual preamble concerning the contemplated marriage, it was recited that Elizabeth Coveney was entitled to and possessed of certain real and personal estate, as the representative of her late husband, (who was Thomas Coveney;) that is to say, of a certain lot of land, situated in Charleston, known, &c. as No. 29, in Pinckney street. It was declared to have been agreed to settle that property, “ or whatever share or proportion of the said estate she, the said Elizabeth, may finally be entitled to receive or take from the estate of her late husband.” The property referred to was then conveyed to John Simmons in fee, in trust for the joint benefit of Dennis Simmons and wife, for their joint natural lives; and from and immediately after-the death of either of them, lor the survivor, his or her executors, administrators and assigns, “there being, then, no child or children of the said intended marriage living at the time of such event, free and discharge ed of all further and other trusts.” In some portion of this deed Elizabeth was empowered to change the limitations declared above. There was no evidence she ever did.
    The plaintiff, then, introduced Honoré Monpoey, who said: I knew Dennis Simmons a long time; not well when he married Elizabeth Coveney. I was his factor, but not while Elizabeth Coveney was his wife. The lot defendants have, was the same Dennis Simmons claimed'in his life time. I don’t know when Arnold first went there. I often went with Simmons to ask rent of Arnold. Simmons said he got the lot through the marriage settlement. Arnold always put him off; said he'could not pay ; to call again and he would pay the rent. Simmons often threatened to turn him out, if he did not pay. (To meet the objection here made to the competency of Arnold’s declarations, the plaintiff introduced evidence to connect the defendants with Arnold, to wit: the will of Amos Arnold, in 1835, giving the lot in question to Peter Joshua and another — mortgage of Peter Joshua to Robt. Martin, foreclosure of the same and sale of lot thereunder, with conveyance to the defendants.) Monpoey continued — Arnold never claimed the lot in my presence. I don’t know that Simmons ever got any rent. (Cross-examined,1.) — Simmons died in 1824,1 believe. 1 believe he tried to get Arnold out of the house, and he put him off, saying he was a poor man and had.no place to go to. All this was after the death of Dennis Simmons’s first wife, Elizabeth Qoveuey< Her first husband was an Irishman. I think Mrs. Coveney was born here, but I am not sure. (In reply.) — I knew Sarah Dennis Simmons, daughter of Dennis Simmons. She was born a few mouths after his death, and was the daughter of Ann Redmond, his second wife. (A memorandum from a Bible showed her birth to have been 2d August, 1824, married plaintiff 24th April, 1840, died July 23d, 1846, leaving a young child, Lavinia Ann.) Simmons demanded rent of Arnold nearly up to the time of his death. This daughter was the only child he ever had. Don’t know when he married Ann Redmond; can’t say he was married to her two years before her death. He never demanded rent that I know of in Elizabeth Coveney’s life time.
    Being re-called, Mr. Monpoey said, Simmons claimed both lots, and sold one. Arnold was so poor he would not buy any thing for cash.
    
      Mr. Malone said: Rhett & Malone were once employed to bring an action for the lot in question, for Margaret Champ-lin, who married one Lambert, pending the action. She claimed from Joshua, who came with Lambert, acting as her friend. Joshua said he claimed the lot through Arnold’s will, and referred me to Mr. McCrady to satisfy me the title was good. We abandoned the suit, because we learned from Mr. Dubose that the persons through whom Margaret Ohamplin claimed, were aliens; Ellen O’Connor was one. Cross-examined. — The suit was brought during Margaret Champlin’s life, and was on docket at the time of her death. It was abandoned after reading the commission of Samuel Dubose, opened by consent: but whether before defendants bought, I don’t know. It was brought in 1845. Syme was then our client. Margaret Cham.plin was the daughter of Ellen O’Connor, and had a son by Champlin, said by Mr. Dubose to be illegitimate, and so no suit was brought for his benefit. I had deeds to make a good title, as I thought, so far as paper was concerned. Heard of her child first at the time of her death. When suit was first brought, we knew nothing of Dennis Simmons’s claim. I had for one lot a deed from Thomas Coveney to Edward Johnson, in trust, and thought we could make her a good title from Thomas Coveney. I think one deed was to the lot adjoining the one in question, and one covering the latter. These deeds were in our hands when this action was brought for Syme and wife. Both deeds were in the handwriting of Nicholson. Peter Joshua spoke English imperfectly.
    The above was all the testimony of plaintiff. The non-suit was pressed, on the ground that Dennis Simmons, through whom plaintiff claims, by his own showing, wont in under the conveyance of Elizabeth Coveney, who claimed, as the representative of Thomas Coveney, “ whatever share or part she may be finally entitled to;” that there was no proof he was ever seized. Simmons had only a life-estate, for the Limitation was to him as survivor, “ his executors, administrators and assignsso he could have absolute estate only in personalty. It was likewise proved there was a title in Margaret Champlin, and -no proof of alienage to defeat her. The motion was resisted, on the ground that the question turned on the tenancy of Amos Arnold, through whom defendants claimed ; and whether he entered under or attorn-ed to the title of Simmons, those who occupied his place could not dispute his landlord’s title, good or bad.
    His Honor refused the nonsuit, and referred to the jury the question, whether Arnold entered as Simmons’s tenant; whether, if he did, he entered under a title confined to a life-estate, and so recognized, which had expired, and whereupon he had set up title for himself, in such way and for such time as would perfect it by adverse possession; or whether he entered under and recognized a fee-simple title in Simmons, from whom it devolved, with the allegiance of the tenant, to Mrs. Syme, a plaintiff and Simmons’s daughter.
    The defendants then produced the following evidence :
    Deed of conveyance of Thomas Coveney to Edward Johnson, dated 10th March, 1803, conveying the Jot in question to Johnson in fee, in trust for the sole use and benefit of Elizabeth Coveney, his wife, for her natural life; then to such child or children of his by her, as might be living at her decease, and the issue of any child dying before; in default thereof, to Thos. Coveney himself, if then living ; if not, to Daniel O’Connor, if then living ; if not, to Helen O’Connor, her heirs, &c.
    The case was put to the jury with the following instructions, accompanied by full explanations of the application of the evidence.
    A tenant is not allowed to dispute the title under which he enters, unless he shall have given explicit notice to his landlord, that he no longer recognizes his title. From that time, and that only, he may set up a claim for himself or for another. The rule applies as well to Dennis Simmons as to any body else.
    The question was submitted thus : Did Arnold enter and hold under Dennis Simmons as the absolute owner, or under him only as a life-tenant. If the former, and he so held up to the death of Simmons, he could not change his relation towards Simmons’s heir, a minor. But if he entered under Simmons as a life-tenant, there was nothing to prevent him from holding the lot as his own, and to acquire a title by adverse possession, continued for 5 years previous to 1824, or 10 since, as any other person might. The evidence here for the plaintiff, showing the tenancy of Arnold, is regarded by ^ Qourt 0f Appeals as slight, connected, as it is, with proof showing only a life-estate, per auter vie, in Dennis Simmons; (and the language of the opinion pronounced in this case, was cited to the jury.) His Honor held, that if we look to the deed of Thomas Coveney to Johnson, in 1803, recognized by D. Simmons, in the marriage settlement executed by him, his title ceased at the death of his first wife, - formerly Elizabeth Coveney; that by the terms of his own deed of marriage settlement, it ceased at his own death, as sur-vivor, unless he had prolonged and perfected it, by taking possession, directly or through tenant, at the death of his first wife, Elizabeth Coveney, and held independent of his own deed, and adversely to that of Thomas Coveney, for 5 years before 1824, or 10 after; that this was the only question, with the inquiry, whether Arnold had entered and held under this latter title. It was not disputed that he executed a deed limiting to himself, in the case, that had happened, of his surviving, a life-estate only ; and we had no proof that he ever claimed by any other title than the deed. In fact, that he had told Monpoey he claimed the lot under the marriage settlement.
    The case was put: Suppose Arnold to be the defendant now in an action by the representatives of Simmons. Arnold could not dispute the title under which he entered; but if he could show he had entered under a title for years expired, or for a life expired, he would be at liberty to do so, and thus present, the common question, whether the title was not shown to be out of the plaintiff; and if so that was enough.
    An argument was urged for the plaintiff, founded on this , clause of the deed of settlement between Simmons and Elizabeth Coveney, “ and. from and immediately after the death of either, then in trust to and for the sole use, benefit and behoof of the survivor, his or her executors, administrators and assigns ; there being, then, no child or children of the said intended marriage living at the time of such event, free and discharged of all further and other trusts.” It was contended, hereupon, that when Elizabeth Coveney died, as no issue, then, existed of the marriage, the lot was divested of all trusts in the hands of the trustee; and by the true interpretation of this part of the deed, an absolute estate was vested in Simmons, the survivor. It was held that this language did not give him a fee or change his interest, whatever might happen in regard to the authority and interest of the trustee. The jury were advised, however, to attach no importance to this matter, but to make the case turn on previous instructions. The jury found a verdict for plaintiff of one-third of the lot in dispute, without damages.
    Defendants appealed and moved for a nonsuit:
    First. Because the plaintiff’s testimony showed that Dennis Simmons, under whom he claimed, had but a life-estate, and, iherefore, could transmit no title to the premises, to his heir, plaintiff’s deceased wife.
    Second. Because there was no proof that Amos Arnold entered acknowledging the fee to be in Dennis Simmons, and that in absence of such proof he must be presumed to have entered acknowledging only the estate which Dennis Simmons lawfully had'in the premises, which estate plaintiff’s testimony showed was but for life.
    Third. Because the proof of the holding of Amos Arnold, under Dennis Simmons as tenant in fee, was too slight to have been submitted to the jury, after so great a lapse of time, and against so long a possession and deduction of title as the plaintifF’s own testimony showed in favor of the defendants.
    The defendants relied upon the same grounds for a new trial, and in addition thereto upon the following:
    First. Because the testimony clearly proved that Dennis Simmons entered under the title of Elizabeth Coveney, who had but an estate for life, and no proof was offered that the said Dennis Simmons ever did, in his life time, set up any title against the one under which he entered.
    Second. Because, entering as he did, Dennis Simmons could not have begun to acquire an adverse title without doing some distinct and definite act of disclaimer of the original title, under which he entered, and such act the plaintiff was bound to prove, but could not.
    Third. Because Sarah Dennis, the deceased wife of the plaintiff, never was seized of the premises in question, and he, therefore, could not derive title from her by his marriage and her death.
    Fourth. Because there was no proof how or when Amos Arnold entered on the premises, which plaintiff was bound to prove if he insisted upon connecting the defendants with that entry.
    Fifth. Because the verdict was contrary to law and evidence.
    McCready, for the motion.
    
      J. 8. Rhett Sf C. Rhett, contra.
   Ctiria, per Wardlaw, J.

The motion for nonsuit has been mainly pressed here. Under it the defendants have contended that the deed of marriage settlement adduced by the plaintiff, shows that there was no inheritable interest in Dennis Simmons, which could have descended to his daughter, and that even if the relation of landlord and tenant subsisted between Dennis Simmons and Amos Arnold, nothing therein forbids the tenant, or those holding under him, from showing that the title of the landlord is determined.

We will look at the case first as it stood when the motion for nonsuit was made on the circuit. Then there was evidence that Amos Arnold had, after the death of Elizabeth Coveney, and until the death of Dennis Simmons, acknowledged himself to be the tenant of Dennis Simmons, and that ever afterwards, till his own death, he held without interruption of possession or disclaimer shown — that Dennis Simmons said he acquired possession under the deed of marriage settlement, and that he had claimed both lots, and had sold, one of them. What interest had Dennis Simmons under that deed ? The response of the verdict to the question, submitted to the jury, showed that he claimed to be absolute owner ; and such a claim would naturally arise from a deed which conveyed to a trustee in fee for various uses, the last of which was to a survivor, (which survivor Dennis Simmons was,) his executors, administrators and assigns forever.” The title which he claimed was the title acknowledged by his tenant, whether the claim was well or ill founded. But what was really his interest? The conveyance was from Elizabeth Coveney. She appears, by the recital, to have claimed as “ the representative of her late husband,” Thomas Coveney, and that she claimed a fee may be argued from the fact that she conveyed a fee to the trustee, John Simmons. Her intention, according to the recital of the deed, was to convey so that the trusts should be to the parties in the marriage contract, during their joint lives, and after the death of one without issue of the marriage, to the survivor in fee; but by the unskillful introduction of the word executors instead of heirs, the limitation to the survivor was only for life. Where was the fee ? The uses were executed by the statute of uses, even by the words of the deed, after the death of one of the parties without issue. A resulting use executed, or reversion in fee, then vested in the heirs of Elizabeth Coveney, the grantor, at her death, to be enjoyed at the expiration of the life-estate of Dennis Simmons, the survivor: upon the supposition that Elizabeth Coveney was seized in fee, and conveyed what was in effect only an estate for life. The only heir of Elizabeth Coveney brought to the notice of the Court, was her husband, Dennis Simmons. It did not, therefore, appear, by the strictest technical construction of the deed of marriage settlement, that under it Dennis Simmons was not entitled to claim a fee at the time Amos Arnold’s acknowledgment of tenancy was made.

Looking now to the deed adduced by the defendants, it appears that Thomas Coveney conveyed in fee to Thomas Johnson, in trust for his wife, Elizabeth Coveney, during her life, and after her death and the failure of contingencies which have not happened, for Daniel O’Connor, if living, and if not, for Helen O’Connor and her heirs. That this deed was ever known to Dennis Simmons, does not appear. From Elizabeth Coveney’s deed of marriage settlement, she seems not to have claimed under it; and Dennis Simmons could not have claimed under it when he held and demanded rent after the death of Elizabeth Coveney. But it is said that Elizabeth Coveney acquired possession under this deed, Dennis Simmons entered under her, and neither he nor those claiming under him ought to be allowed now to dispute the deed. Conceding what does not appear, that Elizabeth entered under this deed, the plaintiff might feel the force of this argument if it was urged by Daniel O’Connor or Helen O’-Connor ; but it is not for Amos Arnold, or those who claim under him, to say that the title under which he acknowledged tenancy was bad. This the defendants admit, but they urge that their purpose is not to show that the title was bad, but that it is determined. If they mean the title for the life of Elizabeth Coveney, that was determined upon the acknowledgment of tenancy, and, therefore, was not the title that was acknowledged. If they mean the title for the life of Dennis Simmons, no such title could have existed under the deed to Thomas Johnson; and under the deed of marriage settlement, as has been shown before, Dennis Simmons was entitled, as heir of his wife Elizabeth, to the whole or a share of the fee. The defendants stand as Amos Arnold himself would do; hardly so well, for, by inspection of his will, it is seen that he merely devised all his estate and property without mention of this lot, and there is no evidence that he even at any time denied the title of Dennis Simmons, or claimed for himself. No claim by or under Daniel O’Connor or Helen O’Connor, or any heir of Thomas Coveney or Elizabeth Coveney, besides Dennis Simmons, has been shown. The case, regarded as one against Amos Arnold, wherein the fact that he entered as the tentant of Dennis Simmons, who claimed to be absolute owner, has been established by the finding of the jury, is merely an attempt by a tenant who has enjoyed the premises without disturbance, to defeat the rights of his landlord’s heir, upon the ground that a better title than the landlord’s subsists in some third person, or by lapse of time has been transfered to the tenant. The attempt is contrary to well settled principles. The minority of the heir rebuts all presumptions from lapse of time, and the rights of the third person will not be affected by requiring a restoration of the possession which was acquired by acknowledgment of the title that those claiming under the tenant would now deny. It appears to the Court that the nonsuit was properly refused, and that the verdict is not without evidence.

The motions are dismissed.

Richaedson and Evans, JJ. concurred.

OINeall and Feost, JJ. dissented, on the ground that the tenant could and did ¡?how that the title under which he entered, as tenant, had terminated, and, therefore, the plaintiff ought not to have recovered.

Motions refused.  