ERROR to the circuit court of Maryland.
An action of trespass, for mesne profits, was instituted by the plaintiffs in error in the circuit court of the United States for the Maryland district, Anthony Taurin Chirac and others, against the defendant in error; upon the recovery of certain real estate in the city of Baltimore, by the judgment of this court at February term 1817. 2 Wheaton, 259. The ground lies in a section of Baltimore, called 'Howard's late addition to Baltimore town,' and is part of the lot designated in that addition by the number 802. The parties, plaintiffs in this action, were the same with those in the ejectment, with the addition of the husband of Maria Bonfils Desportes, one of the plaintiffs, with whom he has since intermarried.
The defendant in the ejectment was John Charles Francis Chirac. This action was brought against the defendant in error, on the ground that he was, in fact, the real defendant in that suit; he having taken on himself the defence, employed counsel, and being the real party in interest; as he had been the receiver of the rents and profits of the estate, during the whole period for which they were claimed by the plaintiffs in this action.
After a trial of this case in the circuit court of Maryland, it was removed by the plaintiffs by writ of error to this Court; and at February term 1826, the Court decided, among other points which were presented by the record, 'That the action for mesne profits may be maintained against him who was the landlord in fact, who received the rents and profits, and resisted the recovery in the ejectment suit; although he was not a party to that suit, and did not not take upon himself the defence thereof upon the record, but another did as landlord.' Also, that 'a recovery in ejectment is conclusive evidence in an action for mesne profits against the tenant in possession, but not in relation to third persons. But when the action is brought against the landlord in fact, the record in the ejectment suit, is admissible to show the possession of the plaintiff connected with his title; although it is not conclusive upon the defendant, in the same manner as if he had been a party on the record.'At the trial of this case in the circuit court, in December 1827, after the same had been returned to that court under the mandate of this Court, the plaintiffs gave evidence to show, that the defendant in error was, before the institution of the ejectment, the claimant and actual landlord of the property, and had continued such until the recovery of the same; and that he had employed counsel, and had sustained the defence by his funds exclusively. They also proved, that the property had been conveyed to him by the defendant in the ejectment. The evidence of title exhibited by the plaintiffs, showed the property to be in John Baptist Chirac, as whose heirs the plaintiffs claimed and recovered the same in the ejectment; and, in order to show the location of the ground, the plaintiffs exhibited in evidence to the jury, the public plot of Howard's late addition to Baltimore town; by which it appeared, that the lot embraced part of a street called Walnut street, which, the plaintiffs further proved by the city records, had been shut up, and the ground included in it divided between the owners of lots bounding upon it.
The plaintiffs then offered in evidence the record of the proceedings, judgment, and writ of possession, in the ejectment; but the defendant objected to the reading of the same, except to show the possession of the property of the plaintiffs mentioned in the record. The court admitted the parts of the record as prima facie evidence of title in the plaintiffs, and permitted them to be read in evidence as such proof of title.
The defendant then offered to exhibit in evidence, a plot from the volume of plots, in which was that already mentioned, of 'Howard's late addition;' to show that the whole of Walnut street was out of the limits of 'Howard's late addition;' and that the parties under whom John B. Chirac claimed, and John B. Chirac, had no title to a certain portion of the ground recovered in the ejectment. The plaintiffs objected to the use of the plot in evidence, and for that purpose. The court allowed the testimony, and the plaintiffs excepted.
The plaintiffs then read in evidence certain depositions, taken under a commission issued in this cause to France, showing the kindred of John Baptist Chirac, and the marriage of Maria Bonfils; and also offered evidence by Mrs Lafolloniere, of the death, before John B. Chirac, of Gabriel Chirac, the only brother, or relation in that degree, of the whole blood, of John Baptist Chirac. And they then proved, that the original depositions taken in the ejectment cause were lost; and therefore, in order to show the pedigree of the plaintiffs' family, offered to read in evidence the bill of exceptions, which embodies these depositions, contained in the record and proceedings of the recovery in ejectment; but the court, upon the defendant objecting, refused to allow it to be so read in evidence, and the plaintiffs excepted.
After this evidence was given, and the testimony was closed on both sides, (none having been offered on the part of the defendant, except that stated in the first exception, on the point of location,) the plaintiffs offered in evidence the record of recovery in the ejectment, as conclusive evidence of the right and title of the plaintiffs to the premises, against John Charles Francis Chirac, and against the defendant holding under that title but the court refused to admit the evidence so offered. The plaintiffs excepted.
The plaintiffs then prayed the court to instruct the jury, that if the jury believed the evidence given, the plaintiffs had shown a sufficient title to the premises in the declaration to entitle them at law to maintain this action against the defendant. The court refused to give this instruction-and the plaintiffs took a further exception.
The defendant then prayed the court as follows:
1. That if from the evidence the jury believed that John B. Chirac, who died seised of the premises in the declaration mentioned, had any brother or brothers, sister or sisters, of the whole blood, or their descendants, who survived the said John B. Chirac the younger; then the plaintiffs are not entitled to recover.
2. That if the jury believe that the said John B. Chirac, the elder, had by his second wife another son beside the said John B. Chirac the intestate, then it is incumbent upon the plaintiffs to show, before they can entitle themselves to recover, that such son died before the said John B. Chirac the intestate, without lawful issue.
3. That if the jury believe that the said John B. Chirac, the elder, had by his first wife a daughter who married a certain Samuel Bonfils, by whom she had a son named John Baptist Bonfils, who married Ann Coton, who had a daughter named Maria Bonfils, who married Desportes, one of the plaintiffs; then it is incumbent upon the plaintiffs, before they can entitle themselves to recover, to show the death of the great grandfather, grandmother, and father, before the impetration of the original writ in this cause; and that the plaintiffs have offered no evidence of these facts.
All these prayers of the defendant were granted by the Court, and the plaintiffs excepted to all of them; and they prosecuted this writ of error.
The case was argued for the plaintiffs in error, by Mr Hoffman and Mr Mayer; and for the defendant, by Mr Wirt, attorney general.
Mr Justice STORY delivered the opinion of the Court.
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This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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