# Henderson v. Tennessee

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## Dissenting Opinion

    Woodbury
United States Supreme Court
51 U.S. 311
Henderson v. Tennessee
In error to the Supreme Court of Tennessee.
An action of ejectment was brought in the Circuit Court for Monroe County by the lessee of the state of Tennessee, against Richard Fen, for a tract of land at Toqua, with notice to R. Stapp, W. F. Brown, John Beatty, and Solomon Aikin, as tenants in possession, indorsed, 'Den, Lessee of the State, v. Fen, &c., to Henderson and Calloway, issued 27th January, 1841.' The declaration and notice being returned by the sheriff as served on the tenants in possession, Stapp, Brown, Beatty, Aikin, they appeared; and on the application of Thomas Henderson and Thomas H. Calloway, they were,' by leave of the court, admitted to defend in the room and stead of the tenants sued,' entered into the common rule, and pleaded not guilty.
The material facts of the case are, that the land in controversy was a school section, and that the School Commissioners had taken possession of and held it until a law was passed by the legislature of Tennessee directing the school lands to be sold. About that time one John Lowry, professedly as attorney and agent of Toqua Will, obtained possession of the land, and retained it until about 1836, when the School Commissioners regained the possession, and retained the same until 1837 or 1838. Then Thomas Henderson, one of the plaintiffs in error, got possession of the tract for the heirs of one Andrew Miller, under which title it has since been held.
Andrew Miller, at the date of the Cherokee treaty of 1817, was the head of an Indian family, and resided in the Cherokee nation, east of the Mississippi; about the 1st of March, 1818, he settled and made improvements on the land in dispute; and on the 24th of May, 1818, registered his name in the office of the Cherokee agent for a reservation in right of his wife, and designated, on the books of said agent, this land as the location by him selected for reservation. From that time until he was killed (August, 1818), he, with his wife and part of his family, resided on the land, claiming it as a reservation, on which he said he intended to live and die. A few days after his death, his widow sent for John Black, and requested him to take possession of the land and hold it for her and her children. Black offered her $1000 for her claim, which was refused. Black was placed in possession in the fall of 1818 by Mrs. Miller and George Hicks and James Chisolen, two Cherokees who had taken chargo of Miller's estate. Two of Miller's children lived with Black, were sent to school, and the expense paid out of the profits of the land. Black held possession for the children of Miller, who remained with him till put off by the School Commissioners in the spring of 1822. Afterwards, Thomas Henderson got possession for the children of Andrew Miller. The land was included in the cession made to the United States by the Cherokee treaty of 1819.
The court instructed the jury, that 'although the ancestor, Andrew Miller, registered his name for the place in dispute, and took possession thereof in the spring of 1818, and died upon the place in July or August of that year, and before the treaty of 1819, no title vested in him, and consequently none could vest or descend to his heirs.'
Verdict for plaintiffs. On appeal to the Supreme Court of Tennessee, the judgment of the Circuit Court of Monroe was affirmed. Thereupon the case is brought before this court by writ of error, under the twenty-fifth section of the act of September 24, 1789.
The cause was argued by Mr. Bibb and Mr. Eaton, with whom was Mr. Green., for the plaintiffs in error, and Mr. Andrew Erving and Mr. Stanton, for the defendants in error.
As the case was dismissed for want of jurisdiction, only so much of the arguments of counsel will be inserted as is applicable to the point on which the case turned.
Mr. Bibb, for the plaintiffs in error.
That part of the judge's charge to the jury is relied on to defeat the jurisdiction, wherein he said, 'that it was admitted that the defendants had not any title in themselves, but relied solely on an outstanding title in the heirs of Andrew Miller.'
This part of the judge's charge to the jury is excepted to, and is as erroneous as the other member of his charge in exposition of the treaties. There is no such admission in the record; no such admission was given in evidence; it is an unwarrantable assumption; it is repelled by what had been done of record, by the court, and by the parties, and is contrary to the testimony.
Henderson and Calloway were not the tenants on whom the declaration was served, but were received and admitted by the court to defend 'in the room and stead of the tenants sued.' According to the principles which govern the action of ejectment, it was necessary that Henderson and Calloway should show that there was a privity between them and the tenants in possession, that there was a connection and coincidence between the possession held by the tenants and the rights and interests of those admitted in their stead, so that there should be no collusive change or shifting of the possession to the injury of a third party, who might thereby be put to an ejectment to recover the possession which his tenants had surrendered improperly; 'because there is a great difference between being plaintiff or defendant in ejectment.' Fairclaim on dem. of Fowler v. Shamtitle, 3 Burr., 1290, 1294, 1295, 1300, 1301, 1302.
A mere stranger to the possession shall not be admitted. Troublesome v. Estill, 1 Bibb., (Ky.), 128; Jackson v. McEvoy, 1 Cai. (N. Y.), 151; Jackson v. Stiles, 10 Johns. (N. Y.), 69.
Under the term landlord, the courts include every one from whom the possession is derived, and who might sustain an injury by eviction; they will be admitted to defend. Crockett v. Lashbrook, 5 Mon. (Ky.), 539.
No person is admitted to defend in ejectment unless he be tenant, and is, or has been, in possession, or receives the rent; because it is an act of champerty for any person to interpose and cover the possession with his title; and to make any person a defendant, who was not concerned in the possession of the tenement, was a mischief at common law. Runnington on Ejectment, p. 70.
But, at common law, to admit a landlord to defend an ejectment is matter of right, for otherwise he might lose his possession by combination between the plaintiff and the tenant in possession. Fenwick v. Gravenor, 7 Mod., 70; Underhill v. Durham, 1 Salk., 256; Fairclaim d. Fowler v. Shamtitle, 3 Burr., 1301; Adams on Eject., 229, 230.
If a person should be admitted to defend, whose title is inconsistent with the possession of the tenant, the lessor of the plaintiff may apply to the court, or to a judge at chambers, and have the rule discharged, with costs. Adams on Ejectment, p. 232.
The objection should have been made when Henderson and Calloway applied to be admitted to defend, if they had no title in themselves and were strangers to the possession. The court admitted them; the lessor of the plaintiff, so far from denying their right to be admitted to defend, acquiesced, made an agreement with them that they should admit the land in the declaration described was 'a school section in Monroe County;' and also an agreement that they should be admitted under the order made by the court, in room of the tenants in possession, upon giving security to abide the judgment, and pay all costs that should be awarded.
The declaration was indorsed for notice to Henderson and Calloway, showing that, at the institution of the action, they were known to the attorney of the lessor of the plaintiff as the landlords.
The charge of the judge to the jury, after the said Calloway and Henderson had been so admitted to defend, and so dealt with, was illegal and erroneous, a surprise to the defendants, an injustice and wrong at a time which left no remedy but by an exception to the charge given to the jury which remedy was pursued.

## Notes

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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