Homer v. Brown. 16 H.

estate may come to the said Samuel, my son, which, at his decease, it is my will that the said real and personal estate shall then go to the legal heirs.

Chandler and Bartlett, for the plaintiff.

Lawrence and Dow, contrà.

(Mr. Justice Curtis, having been of counsel, did not sit in the argument of this case.)

[ *363]

WAYNE, J., delivered the opinion of the court.

This cause has been brought to this court from the circuit court of the United States for the district of Massachusetts, by a writ of error.

The action is a writ of right. The demandant declares that he has been deforced by the tenant, Fitz Henry Homer, of certain premises claimed by him as his right and inheritance, of which he was seised in fee within twenty years before the commencement of his suit, at the May term of the circuit court, A. D. 1851. A motion was made at a subsequent term to quash the writ, upon the ground that the remedy by a writ of right had been abolished by the revised statutes of Massachusetts, c. 101, § 51. The court denied the motion. Then the defendant, Fitz Henry Homer, who is a tenant of a part of the land demanded, tendered the general issue on a joinder of the mise, on the mere right of the demandant, as to that of part of the land of which the defendant is tenant; with pleas of general non-tenure as to a part of the demanded premises, and of special non-tenure as to the residue. His tender was allowed, and such pleas were filed; upon which the counsel of the demandant joined issue. Subsequently, the defendant asked leave to amend his pleas, by striking out the pleas of the general issue and general non-tenure, as the same had been pleaded, which was permitted, and he filed a plea of joinder of the mise on the mere right, with pleas of nontenure. The demandant joined issue on the first plea, and filed a replication averring that, from any thing alleged, he was not precluded from having his action against the defendant, because, at the time of suing out his writ, the tenant was tenant of the freehold, as has been supposed in the writ, of all the residue of the demanded premises; and he prayed that the same might be inquired of by the country. Issue having been taken upon the replication, the cause was tried. At the trial, the demandant put in evidence the will of William Brown, dated the 26th April, 1815, with a codicil dated 30th

Homer v. Brown. 16 H.

May, 1816, upon which he rested his title. The tenant produced the record of a judgment in a writ of entry, brought by the defendant in error against the plaintiff in error, in the supreme judicial court of Massachusetts, embracing the premises here demanded, and which had been submitted to that court on an agreement of facts, in which a judgment of nonsuit was directed by the court; and this agreement of facts and judgment the tenant offered in evidence as a bar or estoppel to the demandant, so far as the premises were identical with those claimed in this writ of right, and moved the court so to instruct the jury. The tenant then put in the deeds of William Brown, Zebiah C. Tilden, Sally Brown, and Samuel Livermore Brown, dated May 5, 1824, who were the only children and sole [364] heirs at law of William Brown, the testator, maintaining that the grantors were enabled by virtue of the will and codicil, to pass all the title to the demanded premises which the testator had at the time of his death.

The tenant further moved the court to instruct the jury that the action could not be maintained, because writs of right to recover land in the State of Massachusetts had been abolished by its laws.

Also, to instruct the jury that the demandant took nothing under the will and codicil of William Brown, and that on the pleadings and facts in the case, the demandant could not maintain this action. Another instruction was asked, namely, that the rights and title of the demandant, and those under whom he claims to the demanded premises, or any part thereof, have been barred by the statute of limitations of Massachusetts. But the counsel for the tenant, now the plaintiff in error in this court, stated in his argument that his other prayers for instruction were not relied upon. The court refused to give either of the instructions just recited, and instructed the jury that the demandant was entitled to a verdict for that part of the demanded premises as to which the tenant had pleaded the general issue; and as to that part of the demanded premises to which the tenant had put in pleas of non-tenure, that their verdict should be for the tenant. The counsel for the defendant excepted to the refusals and to the instructions which the court gave, and the jury returned a verdict for the demandant," that on the first issue, being the general issue, the jury find that the said George L. Brown hath more mere right to have an undivided moiety of so much of the demanded premises as is thus described, (northerly by Clinton street, sixteen feet; easterly by the centre of a brick wall, dividing the premises from land formerly of D. Packer, deceased, fifteen feet eight inches; southwardly by land, formerly of Savage, now of Homer, the defendant, twenty

Homer v. Brown. 16 H.

three feet, with the appurtenances to him and his heirs, as he hath above demanded the same,) than the said Homer has to hold the same as he now holds it, as the said Brown, by his aforesaid writ, hath above supposed; and that the demandant was seised of the same, as by him in his writ alleged. On the second and third issues, being upon the pleas of general and special non-tenure, the jury find that the said Fitz Henry Homer was not at the date of the writ, has not been since, and is not now, seised as of freehold of any part of the land therein described, as the said Brown, by his aforesaid writ, hath above supposed."

We think that the remedy by a writ of right for the re[* 365] covery * of corporeal hereditaments in fee simple, may still be resorted to in the circuit court of the United States for the district of Massachusetts, though the same has been abolished in the courts of that State, and that the court did not err in instructing the jury accordingly. Such a remedy existed in the courts of Massachusetts until the year 1840, and it became, by the judiciary acts of 1789 and 1792,2 a remedy in the circuit court for that district; any subsequent legislation of the State abolishing it in its courts does not extend to the courts of the United States, because it is a matter of process which is exclusively regulated by the acts of congress. Wayman v. Southard, 10 Wheat. 1. It is as process alone, however, that it continues in the courts of the United States, subject to the limitation prescribed by the revised statutes of Massachusetts, as to the time within which such a remedy may be prosecuted in its

courts.

The second instruction asked was also properly refused. A judgment of nonsuit is only given after the appearance of the defendant, when, from any delay or other fault of the plaintiff against the rules of law in any subsequent stage of the case, he has not followed the remedy which he has chosen to assert his claim as he ought to do. For such delinquency or mistake he may be nonpros'd, and is liable to pay the costs. But as nothing positive can be implied from the plaintiff's error as to the subject-matter of his suit, he may reassert it by the same remedy in another suit, if it be appropriate to his cause of action, or by any other which is so, if the first was not. Blackstone, 295; 1 Pick. 371; 2 Mass. 113.

It is not, however, only for a non-appearance, or for delays or defaults, that a nonsuit may be entered. The plaintiff in such particulars may be altogether regular, and the pleadings may be completed to an issue for a trial by the jury; yet the parties may concur to take it from the jury with the view to submit the law of the case to the

Homer v. Brown. 16 H.

court upon an agreed statement of facts with an agreement that the plaintiff shall be nonpros'd, if the facts stated are insufficient to maintain the right which he claims. The court in such a case will order a nonsuit, if it shall think the law of it against the plaintiff, but it will declare it to be done in conformity with the agreement of the parties, and its effect upon the plaintiff will be precisely the same and no more than if he had been nonpros'd for a non-appearance when called to prosecute his suit, or for one of those delays from which it may be adjudged that he is indifferent. The supreme court of Massachusetts, in deciding the cause submitted to it, did so in conformity to an agreement between the parties, but its judgment cannot be pleaded as a bar to the suit, though in giving it an opinion was expressed upon the merit of the demandant's claim * under the will of his grandfather, William Brown.

In

[* 366 ] The court was also asked to instruct the jury that the demandant was estopped from prosecuting this action by his agreement in his previous suit to submit it upon a statement of facts. every view which can be taken of an estoppel, that agreement cannot be such here, because the demandant does not make in this case any denial of a fact admitted by him in that case. He rests his title here to the demanded premises upon the same proofs which were then agreed by him to be facts. This he has a right to do. His agreement only estopped him from denying that he had submitted himself to be nonsuited, or that he was not liable to its consequences.

We come now to the third prayer for an instruction which the court denied. It was that the demandant takes nothing under the will of William Brown, and that he has no title to the demanded premises or any part thereof. The land sued for is a part of what the testator designates in his will, the estate bought from Mr. Stoddard. He bequeathes the rent or improvement of the store upon it, with the wharf privilege, to his son, Samuel L. Brown, during his natural life," and the premises to descend to his heirs." It is here said that this bequest and devise was revoked by the testator in the codicil to his will. Care must be taken in the application of the codicil to the will, but in our opinion the testator's intention may be satisfactorily shown from the language which he uses in the codicil, and from its direct connection with one of the bequests in the will to Samuel. The latter will be more readily seen by a recital of all the testator's bequests to Samuel, before we make the application of the codicil to that to which we have referred. The first bequest is that already stated, of the rent or improvement of the store and wharf privilege of the Stoddard property. He then directs his son William, as some consideration for the difference in the value of the devise to

Homer v. Brown. 16 H.

him over that of his bequest to Samuel, to vest $1,000 in stock, the interest of which is to be paid to Samuel during his life and the principal to descend to his heirs. The third bequest to Samuel is one fourth part of a mass of real and personal estate as it is mentioned in the will, and all of his other property not before or hereafter disposed of, as the same may be turned into money, with this direction to his executor, to vest one half of one fourth of it in stock or real estate, "the dividend or rent of which is to be paid to Samuel as it may arise, and the principal or premises to descend to his heirs." The testator then bequeathes to Samuel the other half of that fourth in money when collected to stock his farm or for other pur[367] poses. The difference between this last and the other be

quests to Samuel being that he had in all of the others only a life interest, and in this an unqualified and absolute right. Now, the question is, what qualifications have been made by the testator's codicil of his bequests in the will to Samuel and his heirs, and whether the codicil does not relate exclusively to that bequest of money left to Samuel to stock his farm and for other purposes? That must be determined by the language of the codicil. If that is sufficient to indicate the testator's meaning, we are not permitted to search out of it for an inference of his intention. If it bears directly upon one of his bequests to Samuel in such a way as to change it from an absolute gift into a life interest, in conformity with the prevalent intention of the testator manifested throughout the body of his will, to leave to Samuel only a life interest in any part of his estate, except as to that bequest of the one half of one fourth already mentioned to stock his farm and for other purposes, no other application of the codicil can be made to any other bequest in the testator's will.

We learn from the codicil, that Samuel had sold his farm between the date of the will and that of the codicil, for the stocking of which the testator had given to him a sum of money. And then the testator states his inducement for making the codicil to be Samuel's apparent relinquishment "of every intention to agricultural pursuits,” and that, being absent at sea to qualify himself for a seafaring life, he considers it to be more for his interest and happiness to repeal and revoke "the part of my will wherein any part of my estate, real or personal, is devised or bequeathed to my son Samuel therein named," and in lieu thereof to bequeathe to him only the income, interest, or rent of the real or personal estate during his life. Now, excepting the unqualified bequest of the money to stock his farm, the testator had not, in either of his other bequests, left to Samuel any more than the income, interest, or rent of any part of his real or