
    Richard P. Anderson vs. Eliza J. Tinney.
    Law.
    No. 26,809.
    Decided December 13, 1886.
    The Ohief Justice and Justices Cox and Merrick sitting.
    1. The circuit court has no power to set aside its judgment, after the expiration of the term at which it was rendered, except on the ground of misprision of the clerk.
    2. Where there is an evident omission in the general description of the property claimed in a declaration in ejectment, but which description is immediately followed by a correct and particular description, it is no misprision of the clerk to follow the latter description on entering the judgment.
    3. It is enough if the description in ejectment sufficiently identify the lot to enable the judgment to be rendered for it.
    4. A judgment in ejectment is not vitiated because it contains no direction as to the count for mesne profits claimed in the declaration.
    Action of ejectment. Appeal from an order setting aside a judgment by default.
    On the Pith day of March, 1886, the plaintiff commenced his suit by filing the following declaration, entitled as above:
    Declaration.
    “ The plaintiff sues the defendant to recover the south sixteen feet of lot 51, in the city of Washington, fronting sixteen feet on Twenty-second street, and running back with the width of said lot eighty-four feet, the said lot being more particularly described as part of lot 20 in square 51, commencing for the said part at the southeast corner of said lot, and running thence with the south line of said lot west eighty-four feet; thence north sixteen feet; thence on a line parallel with the said south line east eighty-four feet; and thence along the line of Twenty-second street west sixteen feet to the place of beginning; in which he claims a fee simple, and of which the plaintiff was lawfully possessed on the first day of January, 1881, when the defendant entered the same and unlawfully ejected the plaintiff therefrom, and unjustly detains the same from the plaintiff. And the plaintiff claims the possession of said part of said lot, with the appurtenances and costs of suit.
    “And the plaintiff further sues the defendant for money payable by the defendant to the plaintiff; for that the defendant having, so as aforesaid, ejected the plaintiff, hath, from the day and date aforesaid, taken and received, and still continues to take and receive, the rents, issues and profits of the said described premises, and to use, occupy and enjoy the said premises, to the damage of the plaintiff $2,000, which amount the plaintiff claims, besides costs.” The defendant was the tenant in possession, and upon her the summons was served.
    The rule-day having passed, and no plea or appearance being entered, judgment by default for possession of the premises was taken April 10 (being in the January Term), in accordance with Rule 77 of the court, which is as follows:
    “A judgment by default may be taken against a defendant in ejectment in the manner prescribed in Rule 69 in relation to judgments by default generally.”
    Rule 69, thus referred to, is as follows :
    “ If the defendant, served with copies of the declaration, notice to plead, and summons, fail to appear and plead according to said notice, a judgment by default for non-appearance may be entered against him at the appearance term of the circuit court or at special term, which judgment may be set aside during said appearance term, or within the first four days of the next trial term, upon the defendant’s offering a plea, verified by his affidavit, setting up a defence considered by the justice sufficient, if proved, to bar the action in whole or in part.”
    The January Term expired on May 8, 1886, and on May 17 following, plaintiff issued execution and was placed by the marshal in possession of the premises. On June 8, being thirty days after the expiration of the term at which the judgment was rendered, a motion was made by the defendant to set aside the judgment and award a writ of restitution, and for leave to plead, the principal ground of the motion being “because there is a material variance and discrepancy between the declaration and the judgment entered, in this: that plaintiff ‘ sues to recover the south sixteen feet of lot 51, in the city of Washington;’ and the judgment entered is for ‘ the south sixteen feet of lot 20 in square No. 51 * * * in the city of Washington, District of Columbia’ * * *; and because plaintiff'has no just right to recover herein; and because this defendant, as the tenant of John Eeid, the owner of said land, has a full and perfect defence, legal and equitable, to said action,” etc.
    Accompanying the motion .were the affidavits of defendant and John Eeid, her landlord, setting up that “he and those under whom he claims have been in actual, open, continuous, visible and notorious possession, with inclosures,” of the property in question, “ for more than twenty-five years past, paying all taxes and exercising all acts of ownership thereon during the whole of that period; ” and also that they had no notice of the judgment until the marshal came to dispossess defendant of the premises; and that defendant was never in possession of “ the south sixteen feet of lot 51.” That she has a full and perfect legal and equitable defence, etc.
    Several counter affidavits were filed by plaintiff, setting up title in himself, and going to show that the defendant had notified her landlord of the suit, and had handed him the declaration and summons, but that he had handed them back to her saying: “ It’s all right, make yourself j>erfectly easy, there’s nothing in it.”
    The motion coming on to be heard, the court below set aside the judgment and ordered a writ of restitution; from which ruling the plaintiff appealed. .
    Franklin H. Mackey for plaintiff:
    The tenant in possession was, in accordance with the usual practice in ejectment suits, made the defendant in the action. Tyler Eject., 411, 701, 769.
    The judgment by default was regularly taken. Eules 77, 69.
    The Circuit Court of this District has no power to vacate a judgment by default after the term has expired. Phillips vs. Negley, 117 U. S., 665.
    But even if this court possessed the power of the Maryland courts to strike out its judgments after the term has expired, the case at bar is not brought within that class of cases to which such action would be applied, as the authorities cited below will show :
    “On motion to strike out a judgment, after the term at which it was entered has passed, there must be clear and satisfactory proof of fraud, mistake or surprise.” Abell vs. Simon, 49 Md., 322. See also Katz vs. Moore, 13 Md., 566 ; Sherwood vs. Mohler, 14 Md., 564 ; Montgomery vs. Murphy, 19 Md., 576 ; Anderson vs. Graff, 41 Md., 601, 608 ; Sarlouis vs. Firemens’ Ins. Co., 45 Md., 245 ; Smith vs. Black, 51 Md., 247.
    Nor would it be set aside by this court even before the term had expired, because the court follows in that respect the general rule of law, which is as follows:
    
      “ To set aside a judgment by default a good defence on the merits must be shown; therefore, where the affidavit shows that the defence rests on matters appearing on the face of the complaint, it shows that the defence is of a technical character and is insufficient.” People vs. Bains, 23 Cal., 128. See also Frost vs. Dodge, 15 Ind., 139, and cases cited.
    When a complaint contains the substantial averments of a cause of action, though defective in form and certainty, the defect is cured by a verdict or default. People vs. Bains, supra.
    
    The only defence pretended to be set up is that the defendant held under one Beid,, and Beid, in his affidavit, says that he “ and those under whom he claims, have been in actual, open, continuous, visible and notorious possession, with inclosures of the south 'sixteen feet front by the depth of said lot, for more than twenty-five years past, paying all taxes and exercising all acts of ownership thereon during the whole of that period.”
    This statement is directly and expressly contradicted. But even if it were true, he does not show any such occupation of the property as would support a plea of the Statute of Limitations. Thus he does not swear that his possession has been adverse or hostile to the plaintiff, nor does he swear that he has held by any claim or color of title. Keefe vs. Bramhall, 3 Mackey, 551 ; 2 Bouv. Law Diet., p. 110.
    The objection made that the plaintiff “ sues to recover the south sixteen feet of lot 51, in the city of Washington,” and that the judgment entered is for “the south sixteen feet of lot 20 in square 51, in the city of Washington,” is utterly untenable. The plaintiff particularly describes the property claimed, and there is no pretence that that description is not absolutely correct and conformable to the judgment. The words “ south sixteen feet of lot 51,” might be stricken out of the declaration as surplusage.
    Section 954, B. 'S. U. S., would cure this defect if it really be such.
    A general description is sufficient in ejectment, Tyler Eject., 393 ; Barclay vs. Howell’s Lessee, 6 Pet., 498; Thomas vs. Culp, 4 Serg. & R., 271.
    It is only necessary that the description be such as to enable the sheriff to deliver possession of the premises after judgment. Fenwick vs. Floyd’s Lessee, 1 Har. & G-ill, 112.
    If this judgment can be set aside at all it must be done under Rule 69 of court.
    “Where judgment is rendered by default for want of a plea, the motion to strike it out may be granted under the 72d (now 69th) Rule of court.” Meloy vs. Grant, 4 Mackey, 486.
    Andrew B. Duvall for defendant:
    A motion to set aside judgment in ejectment, and for leave to intervene, is an application to the sound discretion of the court; and to the action of the court on such a motion no appeal lies. Connor vs. Peugh’s Lessee, 18 How,, 395.
    The granting of the writ of restitution is in the same category. Smith vs. Trabue’s Heirs, 9 Pet,, 7.
    
      The court below had jurisdiction. Such a case as this is expressly declared to be an exception to the rule, that after the term has passed the judgment is beyond the revision of the court — the entry of this judgment was a “ misprision of the clerk,” “a clerical mistake,” always relievable upon writ of error coram vobis, or in modern practice by motion. Phillips vs. Negley, Ilf U. S., 665 ; Bronson vs. Schulten, 104 ü. S., 410.
    Plaintiff sued to “ recover the south sixteen feet of lot 51,” and the clerk entered judgment by default for “ the sixteen feet of lot 20 in square 51,” — a manifest clerical error.
    The particular description which followed the claims in the declaration might have afforded matter for plaintiff to amend his declaration upon application to the court; no court would wittingly enter a judgment upon such a declaration.
    There is no rule of construction which would ‘authorize the adoption of the particular description to the exclusion of the false and impossible general and principal description.
    The judgment must be rendered for the premises described in the declaration, and must follow the description therein. Tillinghast’s Adams, Eject., 328; Sedgwick, Tr. Tit., sec. 525; Bentley vs. Brownson, 1 Scam., 240.
    The element of intention cannot be invoked, as if the question was between parties to a conveyance; for that reason, even a tax deed with such a description would be void. Blackwell, Tax Titles, 152, 154, 450.
    The mistake in this description, even in a deed, would be fatal. If there is an error in the principal description, though there be no error in the addition, nothing will pass. If the principal description is complete in itselfj the further incorrect description may be rejected as surplusage. 2 G-reenl. Cruise, pt. 2, 344, 334; Martindale, Convey., 80; Broom, Legal Maxims, 629, 640.
    Courts will more readily set aside a verdict in ejectment upon a question of location than upon an ordinary question of fact. Sedgwick, Tr. Title, sec. 49 T, and cases.
    
      There1 were two counts in this declaration; and no notice was taken of the second count for mesne profits; the judgment is, therefore, insufficient, and will not stand; it must comprehend the whole issue. Sedgwick, Tr. Title, sec. 497; Patterson vs. U. S., 2 Wheat., 222; Prentice vs. Zane’s Admr., 8 How., 484.
    The clerk must enter the right judgment, or the court will strike it out on motion. Suppose the declaration had been in trover, and the judgment entered as in this case. Alex. Brit. Stat., 212, 236, and cases; Pickett’s Heirs vs. Legerwood, 7 Pet., 144, 148.
    This was a judgment by default; as to such a judgment, whatever may affect its competency or regularity is open to examination ; it is different in this respect from where there is a contestatio litis. Harris vs. Hardeman, 14 How., 337, 338, 346.
    In practice, a judgment by default upon the tenant’s failing to appear is commonly stricken out when of recent date, and where the period has been too short for improvements, and where no trial has been lost. Klinefelter’s Lessee vs. Carey, 3 Gill & J., 349; 28 Md., 337.
    The court will go further to protect the possession, when it can be done without injury to the plaintiff’s claims, than it is willing in other cases to proceed. Jackson vs. Stiles, 1 Cal., 503.
    Judgments against the causal ejector, irregularly obtained, will, as matter of course, be set aside, and as the situation of claimant and defendant in ejectment are materially different, the courts are liberal in their rules for setting aside judgment against the causal ejector, although regularly signed; and will grant them even after execution executed, upon affidavit of merits or other circumstances which, in their discretion, they may deem sufficient. Tillinghast’s Adams, Eject., 252.
    Revised Statutes D. C., section 809, made no alteration in the common law action of ejectment; except that Reid, known to plaintiff to be “the party claiming to own or be possessed thereof,” and not his tenant, should have been made defendant. Hogan vs. Kurtz, 94 IT. S., 775; see also McKenna vs. Fisk, 1 How., 249.
   Mr. Justice Cox

delivered the opinion of the court.

In this case the plaintiff sues to recover a lot of ground from Eliza J. Tinney, who was at that time a tenant of one John Heid.

The declaration commences by describing the property as “the south sixteen feet of lot 51.” If it had stopped there, it would have been fatally ambiguous. There was evidently an omission, because there are many lots 51 in the city of Washington. It goes on, however, to say: “The said lot being more particularly described as part of lot 20 in square 51;” and it proceeds to give the boundaries, and the latter part sufficiently identifies the lot to enable a judgment to be rendered.

The summons was duly served on the 17th of March, 1886, and the defendant being in default, judgment was rendered on the 10th of April, 1886. I should state, also, that the declaration contains a count for mesne profits.

On the 10th of April the plaintiff came in, by his attorney, Mr. Mackey, and prayed judgment for possession of the property described in the declaration, with costs. He did not ask for any judgment on account of the mesne profits1. Judgment was therefore entered on the 10th of April. On the 17th of May a writ of possession was issued and was executed on the same day.

On the 8th of June, 1886, which was a month after the expiration of the January Term, and some weeks after the commencement of the succeeding term, defendant appeared, by Mr. Duvall, her attorney, and moved to set aside the judgment; and that motion was fortified by the affidavit of the defendant, in which she says that she had no notice or knowledge whatever of the judgment entered in this case until the marshal came to the premises and dispossessed her; and she further alleges that she has a full, perfect, legal and equitable defence.

The motion was also fortified by the affidavit of J ohm Reid himself, who says that he, and those under whom he claims, had been in possession of this property for twenty or twenty-five years, and that he had no notice of a judgment until he was informed by the tenant that the marshal was in possession and was about to put her out; and he also says that he has a full, perfect, legal and equitable defence.

There are several counter affidavits filed, one or two of which say that, according to the defendant’s statement, she told her landlord, Mr. Reid, that suit had been brought, and handed him the writ of summons, and that he told her she need not trouble herself about it; that there was nothing in it. If this be true, it is plain that it was a mere case of laches; a default on the part of the defendant, and the landlord also.

Now, upon this motion, Mr. Justice Hagner set aside the judgment and allowed the tenant to come in and defend. It is objected that it was too late; that it was not within the power of the court to set aside the judgment after the term had expired, and after that period had expired within which, under our rules, a judgment may be set aside, and that the case of Phillips vs. Negley, 117 U. S., 665, has settled the question; that it is not within the power of the court to set aside the judgment after the term expires, except on the ground of misprision of the clerk, and we have not been able to see in this case any 'misprision on the part of the clerk.

In the first place, the judgment is not erroneous. It is such a judgment as we would have rendered in the case. It particularly ■ describes the property. There was some ambiguity in the first part of the declaration that was repaired afterwards, and the judgment is in conformity with the declaration. It is nothing against the judgment that there was no account taken of mesne profits. The plaintiff has either waived that or may come in yet and ask for that judgment. So far as it goes, the judgment is correct. The clerk has not departed from any order of the court or any rule of law. He has not entered any other judgment than such as we would have directed. Therefore, it seems to us that it was an excess of the power of the court to set it aside.

The landlord, not being a party to tbe suit below, and not even participating in tbe defence, may not be estopped, and may, perhaps, bring his own suit now to recover on the strength of his own title. We are not, however, called upon to decide that question. But we do not see that the court has any power to set aside the judgment as entered, and, therefore, that action must be reversed.  