
    
      John T. Syme v. J. A. Sanders and Septimus Sanders.
      
    
    Where one enters into the possession of premises under a deed, as tenant per autre vie, he can no more dispute that title, than a tenant for years under it can; and his tenant must, after his death, attorn to that title, and not to his heir.
    
      Before Wardlaw, J. at Charleston, May Term, 1848.
    The plaintiff shewed title to a lot of land in Pinckney street, the eastern half of which was the subject of suit, in Thomas Coveney under a conveyance from John Gruber, dated 22d May, 1801. and duly recorded ; and from Samuel Fluit to John Gruber, dated 8th March, 1800, also duly recorded.
    The plaintiff then produced a marriage settlement between Elizabeth Coveney, Dennis Simmons and John Simmons, bearing date the 15th June, 1815, reciting the intended marriage between Elizabeth Coveney and Dennis Simmons, that Elizabeth Coveney was entitled to and possessed of certain real and personal estate; as the representative of her late husband, “ that is to say, of a certain lot of land, situate in the City of Charleston, known and distinguished as No. 29 Pinckney street,” <fcc. &c. And that it had been agreed between the parties to settle that property “or whatever share or proportion of the said estate, she, the said Elizabeth, may be finally entitled to receive or take from the estate of her late husband.” Elizabeth Coveney then conveyed all the property described, to John Simmons, in fee, in trust for the joint lives of the said Elizabeth and Dennis, “and from and immediately after the death of either the said Elizabeth or Dennis, then in trust, to and for the sole use, benefit and be-hoof of the survivor, his or her executors, administrators and assigns foreverThis settlement was recorded in the Secretary of State’s Office, 14th September, 1815; although the name of the witness who proved it did not appear in the probate attached to the deed, the place where the name of the witness ought to have been inserted being blank.
    The plaintiff next produced the City Assessor, and the City Assessment books for several years, to prove that Dennis Simmons, after the date of the marriage settlement, did return a lot on the north side of Pinckney street; and also to prove that one Amos Arnold was the tenant of Simmons. These books were objected to, because they were mere extracts from the original tax returns, which ought to have been produced. The City Assessor testified that these original returns had been sought for but could not be found, and the books were received, from which the following are extracts.
    
      Pinckney Street.
    
    Year. No. Tenant. Trade or Employment. Owner. Valuation.
    1815 30 Elizabeth Coveney 700
    600
    1816 30 Dennis Simmons 700
    700-1400
    To 1823, same return continued.
    1823 30 Amy Pibro 700
    Jas. Sherman, P. N. Rigger
    Sara Arnold 600-1400
    1824 32 Vacant . 700
    now J. M. Lowry
    30 Mr. Arnold’s school “ Dennis Simmons 600-1400
    
    1825 32 J. M. Lowry 700
    30 Amos Arnold Dennis Simmons 600-1400
    To 1831, same return-continued.
    1831 32 J. M. Lowry
    30 Amos Arnold 1-2 Dennis Simmons 700
    1-2 Amos Arnold' 600
    The city Assessor testified that lots frequently had their numbers changed, and that a discrepancy between the numbers by which this lot was designated in the marriage settlement and in the City Assessment Book, did not induce any doubt in his mind of the identity oí the lot. He also explained, that under the column of tenants, the names of the occupants found on the premises when the City Assessor went round once a year to ascertain them, as was then his duty, were inserted without inquiry into the character in which the occupant held. From the year 1824 to 1831, the lot was returned Dennis Simmons, owner, Amos Arnold, tenant. From the year 1831 to 1836, the return was made by Amos Arnold alone. In 1836, there was no return. After .1836, it was returned by Peter Joshua until 1840 or 1841. .He said it is customary after a land owner dies, to continue lo have the property returned in his name, for the benefit of his estate, until some other person becomes the owner.
    On his cross examination, he said that the return of one-half as Denuis Simmons, in the year 1831, must have been taken from the original return of that year, and whoever made that return, must have returned but half of the lot, ¡while Amos Arnold returned the other half.
    Plaintiff also produced the original State tax return of Amos Arnold for the year 1834, in which he returned both the eastern and western lots as his property, whilst by the City Assessor’s book he returned but one.
    The plaintiff then offered the testimony of Honoré Mon-poey, which had been taken, by consent, in writing, as follows.
    “That he knew Dennis Simmons, and knew Elizabeth Coveney, the lady he married, by sight. Does not recollect the year of the marriage, heard of their marriage, was not present at it. Didn’t know Simmons so well at that time. Simmons told him that he got the lots in Pinckney street, by his marriage with Elizabeth Coveney. The lot that the defendants are on, is one of those. It is the easternmost of the two lots that the defendants are on. Simmons owned no other lots in that street.
    Doesn’t know when Arnold first went as a tenant to that lot. Witness was Simmons’ factor. Simmons lived in the country — went with Simmons to the lot, to get the possession of the lot, or to get the rent from Arnold. Arnold always put Simmons off by telling him to come again. Arnold wanted to compromise with Simmons — went with Simmons frequently — never heard Arnold lay any claim to the property — went with Simmons to demand the rent — not long before Simmons’ death, Arnold promised to pay rent.
    Dennis Simmons died shortly before the death of his only child, Sarah Dennis Simmons, the deceased wife of the present plaintiff, sometime in the year 1824, in the early part of that year. This daughter Sarah, has left a child who is now alive.”
    
      Cross Examined. “ Elizabeth Coveney, by whom Dennis Simmons told witness he had got the lot, died a few years after marriage with Dennis Simmons, without issue, as far as the witness knows. After her death, Dennis Simmons married Ann Redmond, the mother of Sarah Dennis Simmons, the plaintiff’s deceased wife. Dennis Simmons left his widow enciente with the plaintiff’s deceased wife.
    His widow afterwards married aman by the name of Brown, and died. Elizabeth Coveney was the widow of Thomas Coveney. Knew nothing of Simmons’ possession of the lots until after his marriage with Ann Redmond in 1820, or later.”
    
      In reply. “ Thomas Coveney, whose widow, Elizabeth, married Dennis Simmons, was an Irishman, as witness believes, and moved from the city to the Cross Roads, St. deorge’s Dorchester; can’t tell, exactly, when Dennis Simmons married Ann Redmond. The widow of Dennis Simmons never had any other child than plaintiff’s wife.”
    It appeared by certificates or memoranda admitted, that .Sarah Dennis Simmons was born on the 2d August, 1824, married John T. Syme, the plaintiff, 24th April, 1844, and , died 23d July, 1846, leaving a child, which was born 26th January, 1845, named Lavinia Ann, which is still living..
    Plaintiff’s counsel then offered a certified copy of the will of Amos Arnold, which bore date 13th June, 1835, and was proved before the Ordinary for Charleston district, 2?th December, 1836. Amos Arnold devised as follows — “I give- and bequeath to my two friends, Peter Joshua and George William Thrane, of the City of Charleston and State aforesaid, all my estate and effects, real and personal, whatsover and whensoever, of what nature, hind and quality soever the same may be, to them and their own use and. benefit absolutely, to be equally divided between them, share and share alike.”
    And here the plaintiff’s counsel closed his case.
    Defendant’s counsel then moved for a non-suit, because plaintiff had not shewn whether Thomas Coveney had. died testate or intestate j that the settlement between Dennis Simmons and Elizabeth Coveney disclosed a doubtful interest in the estate of Thomas Coveney, and gqve to Dennis Simmons, the survivor, nothing but a life estate in the premises. And that defendants were not in any wise connected with, or affected by, the tenancy of Amos Arnold. Upon his Honor’s intimation to plaintiff’s counsel that he had not shewn any connexion between Arnold and the defendants, plaintiff’s counsel offered the, original conveyance of E. R. Laurens, Master in Equity, to the defendants, dated 2d March, 1841, in which was reeited, that the sale was made under a decree of foreclosure, in the case of Robert Marlin v. Peter Joshua, and that defendants had purchased at the price of five hundred and fifty dollars.
    Upon this conveyance being introduced, his Honor refused the nonsuit.
    Defendant’s counsel then offered in evidence a certified copy of a conveyance, dated 10th March, 1803, duly recorded, whereby Thomas Coveney conveyed the premises to Ed-rvard Johnson, in fee, “in trust to and for the sole use, benefit and behoof of Elizabeth Coveney, my wife, for and during the term of her natural life, and so that the same shall not be seized, sold or extended to the payment of my debts, or in any Avise subject to my control or intermeddling ¿ and from and immediately after the decease of my sard wife, Elizabeth,-then in trust,’to and for the sole use, benefit and behoof of such child or children which my said wife now has, or may hereafter have, by me, that are, shall, or may be living at the time of the decease of my said wife, Elizabeth, to be divided between and amongst such child or children, if more than one, share and share alike, to hold, to him, her and their respective heirs and assigus forever, &c. &c. and in default of such issue living at the time of the decease of my said wife, and in case that I, the said Thom-, as Coveney, shall be then living, then in trust, to and for my sole use and benefit and behoof, and to my heirs and assigns; but should I not then be living, then in trust, to and for the use, &c. of Daniel O’Connor, my nephew, and to his heirs, &c. And in case the said Daniel O’Connor shall not then be living, and leave no lawful issue living at the time of his death, then, and in that case, in trust, to and for the sole use and benefit and behoof of Helen O’Connor,. my niece, and to her heirs and assigns forever.”
    Defendant’s counsel then offered the deposition of Samuel Dubose, Esq. taken iu writing, as follows.
    “ That he knew Thomas Coveney,- who lived at the Cross Roads, in St. George’s Parish. Colleton district, sometime prior to the year 1815. He saw him there in 1813; and that the said Thomas Coveney died, leaving a widow, who, the witness afterwards heard, had married Dennis Simmons.
    Witness further says that, “ he has heard of Thomas O’Connor, a nephew of the said Thomas Coveney, but never knew him. That he, witness, did know Helen O’Connor, the niece of Thomas Coveney. He remembers to have heard that her father and mother came out to this country from Ireland, and in a short time all the family, except the said Helen O’Connor, died of the yellow fever. That the said Helen O’Connor intermarried with a man by the name of George W. Champlin, and afterwards died, sometime in the year 1818, leaving a daughter named Margaret Champlin,. whom the witness received into his house as a motherless child, then about six years old, and that she continued to live in the witness’s family for several years, and grew up and attained her full age, and married, and died six or seven years ago.”
    And here the defendant’s counsel closed.
    One of plaintiff’s counsel then went on the stand himself, as witness, and testified that Peter Joshua never pretended to any other right in the premises, than through the devise of Amos Arnold. That he had brought an action for Margaret Champlin against Peter Joshua to recover the premises, and had abandoned it, because her mother, HelenO ’Connor, was an alien, and that all of Thomas Coveney’s relations were aliens, as far as he could ascertain.
    Upon his cross examination he said that Margaret Champ-lin had married after he commenced the action for her against Joshua, and not long afterwards died, leaving her husband living, he believed. But that he had abandoned the suit, because Margaret Champlin could only claim through aliens.
    He further said, that it was not from Joshua himself, but
    
      Charleston, Jan. 1850. Syme ■v. Sanders. from his comise!, he learned that Peter Joshua never pretended to claim except under Amos Arnold’s will.
    Defendant’s counsel, who had been counsel for Joshua, when sued by Margaret Champlin, disclaimed ever having made any exhibition of Joshua’s title to the plaintiff’s counsel.
    The jury found for the plaintiff.
    The foregoing statement was .prepared by the counsel of the defendants, appellants, and approved by the plaintiff’s counsel, according to an arrangement which was made between' the counsels when the notice of appeal vras delayed. It was adopted by the Circuit Judge as correct, except that his notes did not shew any objection made to the introduction of testimony; and although he remembered that some observations were made when the Assessor’s books (which the counsel had obtained leave to examine beforehand) were submitted, he thought no objection was insisted on.
    In the argument, much was said on the part of the plaintiff, about the minority and destitution of Dennis Simmons’ daughter, under whom the plaintiff, J. T. Syme, claims; and on the part of the defendants, about their being purchasers' for valuable consideration, without notice of any acknowledgment of tenancy by Amos Arnold. His Honor held these matters to be unimportant.
    The deed from Thomas Coveney to'Edward Joshua, in trust, and the marriage settlement between Dennis Simmons and Mrs. Coveney, were also much discussed, and the supposed rights of Mrs. Champlin dwelt upon. His Honor presented views under which the title, between proper parties, might be found to be in the heirs of Johnson, or of Thomas Coveneny, or Mrs. Coveney, or in Daniel O’Connor or his children, or in Mrs. Champlin’s heirs, or in the body corporate, to whom the land, if escheated, had been granted; and he spoke of the difference Avbich the death of Mrs. Cove-ney, before or after the death of Mrs. O’Connor, might have produced; but all these views he considered to be superceded, by the inquiries which were presented as to Amos Arnold’s tenancy, and the matters therewith connected.
    ' Dennis Simmons, at the death of his first wife, was in possession; and afterwards, for a period from 1820, or perhaps 1818, till 1824, held on Avith a claim of ownership; Amos Arnold became his tenant after his second marriage, and was so up to his death; and without interruption, Amos Arnold continued to hold under his original entry till his (A. A’s.) own death in 1836. Peter Joshua entered at Amos Arnold’s death, as his devisee; and the present defendants, in 1841, entered as purchasers of Peter Joshua’s title, under proceedings had in Equity jo foreclose a mortgage from J.oslma to Martin.
    
      His Honor left it to the jury to decide whether the plaintiff had established these propositions. If he had, he held that the plaintiff, as heir of Dennis Simmons, was entitled to recover against the defendants, who came in under Dennis Simmons’ tenant, and that the defendants could not show in defence, title in a third person. If the plaintiff had failed in any of these propositions, then the defendant’s possession should not be disturbed. The jury found for the plaintiff.
    ’’A motion for a new trial was made before the Court of Appeals, upon the following grounds.
    1. Because the defendants, being in possession as purchasers for valuable consideration, are entitled to hold the premises against the plaintiff, until he shews a perfect title ; as the tenancy oí Amos Arnold under Dennis Simmons, if proved, cannot affect the defendants, who had no notice of it.
    2. Because the title of plaintiff was defective, as he claimed to take through his wife, the heir of Dennis Simmons, who had entered under the settlement made upon his marriage with Elizabeth Coveney, by which settlement, the said Dennis Simmons had only a life estate.
    3. Because the defendants shewed a better title in Margaret Champlin, under the conveyance of Thomas Coveney to Edward Johnson, in trust, for Elizabeth Coveney for life, with ultimate remainder to Helen O’Connor, the mother of Margaret Champlin; and his Honor erred in charging the jury that, if Elizabeth Coveney survived Helen O’Connor, the case was easily settled, as in that event, Margaret Champ-lin could take nothing under the deed, because her mother was an alien; whereas, the statute 11 and 12 W 3d. c. 6, (made of force in this State) enabled Margaret Champlin to take title through her alien mother.
    4. Because this title of Margaret Champlin could not be barred by the possession of Dennis Simmons, who had entered upon the premises in right of his wife Elizabeth, the life tenant, holding under the same deed. And Margaret Champlin was proved to have been a minor at the death of the said Elizabeth, the wife of Dennis Simmons, the life tenant, and did not attain her full age until sometime in 1833.
    
      McCracly & Caldwell, for the motion.
    
      Rhett Malone, contra.
    
      
       This ease appears in a different phase in the former part of this volume, and should have been preceded by this report, which is of a former appeal in which a new trial was granted ; but the [Reporter did not discover it among his papers until the junior appeal was in print.
    
   Curia, per O’Neall, J.

I have read over the report in this case again and again, to discover, if I could, a ground satisfactory to my mind, on which the plaintiff could sustain his recovery; but I have failed. It is very true that a tenant cannot dispute the title under which he enters ; it is also generally true that he cannot set up any successful defence to his landlord’s claim of repossession. The proof, however,. of tenancy in this case, on the part of Arnold, is very slight. For it ought to be remarked that the books of the city assessor setting down A. B. as owner, C. D. tenant, are no evidence of either fact, until it be shown who made the return. If the supposed tenant made it, then indeed, it would be evidence of tenancy, otherwise it would be the mere declaration of the person claiming to be owner, or some one acting for him, and no evidence, in his favor, or those claiming under him. The testimony of Mr. Monpoey is that Arnold was in possession when he first knew any thing about the lots — how he came there he manifestly does not know. He went with Simmons, the father of the plaintiff’s wife, to get possession or rent, as he says, from Arnold, who, be says, put Simmons off, and wished to compromise with him, but finally, about ’24, promised to pay rent. This is very slight proof on which a possession of 24 years, accompanied by a regular title from the party then in possession, is to be defeated. Still, if it be true that the case is to be decided by the law of tenancy, unqualified, it maybe that the verdict wight be supported. Before, however, I present the view on which the case must go back, I must be permitted to remark that the legal conclusion of the title of the plaintiff, arising from the tenancy of the defendant, applies only where it excludes all proof of title on the part of the defendant. If the plaintiff, in deducing his own title, shows title out of himself, or suffers the supposed tenant to do it, he cannot expect to recover that to which he has no title. That that is the case with the plaintiff, is apparent from the deed of Thomas Coveney.— By it Elizabeth, who afterwards married Simmons, had only a life estate, and if she died without children, then, with remainder to persons who are alleged to be aliens. If that be true, the estate did not revert to the grantor’s heirs. Aliens may take and hold until office found,- — and then an escheat, nota reverter, occurs. But it is supposed Simmons acquired title by an adverse possession, after the death of his wife.— That possibly might be true, if there were any evidence'of the fact. But there is none beyond that of Mr. Monpoey, and he merely speaks of Simmons’s possession of the lots, (as he calls it,) beginning in 1820. He died in 1824; there could be, therefore, no title by possession before his death, inasmuch as his whole nossession, before Dec. 1824, when the statutory period was extended to ten years, was short of five years.

The defence set up in this case is, we think, admissible, notwithstanding Arnold may have entered under Simmons. If he entered under him during the life time of his wife, Elizabeth Coveney, then there could be. no doubt about it, that he could show her death, and exhibit the deed of Thomas Coveney, and defeat Simmons or any body else, except those entitled under the deed, from recovering possession. — For that would be not disputing, but supporting the title. If he 'entered under Simmons, after the death of his wife, and he was called on after his death to surrender possession — he could show that Simmons’s estate, whatever it was, was determined. This, from the papers before us, clearly appears. He estate whatever left at his death in the lots, which could descend to his heir, and of course the tenant who had gone in under him, could not be ejected by the heir. But Simmons stood in another point of view; he had entered under Thomas Coveney as tenant per autre vie, (his wife ;) he could no more dispute that title than a tenant for years under it could. His tenant, after his death, must attorn to that title, and not to his heir, — and hence, therefore, there can be no pretence for a recovery against persons who have purchased Arnold’s title, on the ground that he was tenant to Simmons. There must be something beyond, such as title acquired on his (Simmons’s) part by adverse possession, (if that be possible,) or in some other way, so as to relieve his title from its legal subserviency to that of Thomas Coveney, deceased.

The motion for anew trial is granted.

Frost and Withers, JJ. concurred.

Wardlaw, J. dissented.

Richardson, J. absent at the argument.  