South, &c. v., Deaton.

estoppel by deed. In Penrose v. Griffith, 4 Bin., 231, the court said that the rule of law is that a deed containing a recital of another deed is evidence of the recited deed against the grantor and all persons claiming by title derived from him subsequently: "The reasonable rule is that the recital amounts to the confession of the party, and that confession is evidence against himself and those who stand in his place. But such confession can be no evidence against strangers." Greenl. Ev., sec. 23, note. The rule is based on expediency. Says Greenleaf (section 32): “In these cases of conclusive presumption, the rule of law merely attaches itself to the circumstances, when proved. It is not deduced from them. It is not a rule of inference from testimony, but a rule of protection, as expedient, and for the general good. It does not, for example, assume that all landlords have good titles, but that it will be a public and general inconvenience to suffer tenants to dispute them. Neither does it assume that all averments and recitals in deeds and records are true, but that it will be mischievous if parties are permitted to deny them." The rule is that a tenant may not dispute his landlord's title; that is, he may not assert rights against it. The rule which prevents him disputing his landlord's title in a suit between them being a rule of expediency, and based solely on the doctrine of estoppel, obviously, when the dispute is not between them, - can not apply to prevent the truth appearing. Estoppel applies to the assertion of rights, not to the introduction of testimony. Certain kinds of testimony are excluded, on account of the policy of the law. A man may not testify as to his transactions with a dead man. That is not estoppel. It is legislative policy. On the other hand, a man may estop himself to make a claim of right. In such case his evidence Vol. 113-21

South, &c. v. Deaton.

of facts showing his right may be excluded, because such facts are irrelevant. There is nothing to which they apply, for he is estopped to make the claim. He is estopped to make the claim, not to give the testimony. But if the testimony be relevant to the claim of another, it may be given. The stranger is not estopped to make his claim, and therefore may produce all testimony relevant thereto. Even a solemn judgment estops the parties and their privies only as to matters between themselves. As to strangers, they may plead the truth and prove it. And if a judgment will not estop a man to testify in a contest with one not a party thereto, can such estoppel be worked by the mere signing of a paper? Assuredly not. Though a man have given sworn testimony to a falsehood, that shall not estop him to declare the truth, where the rights of another are involved. We see no reason why, in such a case as this, as between the two elaimants of the land, the facts as they exist may not be made to appear; and we are cited to no authority which so holds.

We are of opinion that no substantial error has been shown to the prejudice of appellants' rights, and the judg ment is affirmed.

Chief Justice Guffy and Judge Paynter dissent.

Whole court sitting.

Response by Judge DuRelle to petition for rehearing:

By petition for rehearing counsel for appellants vigorously attack the statement of the opinion that it is the doctrine of estoppel which prevents a tenant disputing his landlord's title, and attempt to base their claim that the testimony should have been excluded upon the theory that the relationship of landlord and tenant "is a status fixed by the law. This condition or status can not be altered, changed,

South, &c. v. Deaton.

or be other than the law fixes it, just like the status of husband and wife. In no case would the husband be permitted to deny the relationship to his wife when he admitted the facts showing him to have been legally married. No state of case could arise where a person who had legally and duly executed a deed would be permitted to deny he conveyed the land embraced therein. The reason of this is not estoppel." As to this it may be said that one of the questions in this case was as to the existence of the relationship of landlord and tenant between the appellants and certain persons who were living on tracts of land within the boundary claimed by appellants, but the title to which was not in controversy here. Cardwell, one of the appellants, who obtained the execution of the leases, himself testified that all the lessees claimed the land on which they were living as their own, until after he took the leases, and none of them, except one, had ever paid any rent. Watts, another witness for appellants, testifies that the socalled lessees claimed the land as their own. Delaney Deaton, another witness for appellants, on cross-examination testified to the same effect. Several of the witnesses testified that, being unable to read, they signed the leases without understanding what they were, and without understanding that the signing would have effect to deprive them of any rights in the land. These facts they could have proved in suits by the supposed landlord upon the leases for the rent. No man is estopped by his signature to show that it was obtained by fraud. It is unnecessary to discuss this view of the question. That the general rule, which, in the language of Lord Denman, "precludes the tenant from disputing the title of his landlord," grows out of the doctrine of estoppel, is shown by the very authorities which counsel cite. In Jones on Evidence (section 286), it is

South, &c. v. Deaton.

said: "The estoppel arises not only against the tenant, but against all holding under him, or in privity with him, and in favor of all persons claiming under the lessor." So, in Wharton on Evidence (section 1149), the rule referred to is discussed as an estoppel. In each of the adjudged cases cited in the petition the question was as to the admissibility of declarations made by tenants in possession of the land in dispute as to the title under which they held. The cases cited are: Ingram v. Little, 58 Am. Dec., 549; Stacy v. Bostwick, 48 Vt., 192; Warren v. Frederichs, 76 Tex., 651, 13 S. W., 643; Mooring v. McBride, 62 Tex., 311; Sheaffer v. Eakman, 56 Pa., 152. We have not time to go into a discussion of the law relating to the admissibility of declarations, nor to consider the reasons which in these cases were held sufficient to render the various declarations admissible or inadmissible. For example, in the Georgia case, in 58 Am. Dec., 549, the declarations of a tenant at one time that he had no title, and at a later date that he held as tenant under the defendant in error, were both held admissible; and this was all that this case decided on the subject of admission. In the case at bar the lands held by the various persons who were shown to have claimed them in their own right were not in controversy at all. Admittedly, and by appellants' own evidence, they claimed these lands in their own right until the date of the leases. Clearly, evidence of their possession and claim of right up to that date was admissible as a circumstance showing appellants were not in possession of the whole body of land, which included the land in controversy. The appellants obtained leases from these people, and this fact was admissible as tending to support their claim. There is no question here of the right of a tenant to dispute his landlord's title, to obtain title by adverse possession against his landlord,

Commonwealth v. Boyle County Fiscal Court.

or as to the admissibility of declarations by the tenant to deprive his landlord of title to land the possession of which he obtained as tenant. It is simply a question whether appellee should be precluded from showing the actual facts relevant to the controversy in which he is engaged because of the signing of certain papers in relation to land which is not in controversy in this suit. We do not think the rule as to declarations by tenants can be thus applied, and we are cited to no authority which so holds.

The petition is overruled.

CASE 46-INDICTMENT AGAINST BOYLE COUNTY FISCAL COURT FOR SUFFERING A NUISANCE ON THE PUBLIC HIGHWAY.-MAY 14.

Commonwealth v. Boyle County Fiscal Court.

APPEAL FROM BOYLE CIRCUIT COURT.

INDICTMENT DISMISSED AND COMMONWEALTH APPEALS. AFFIRMED. COUNTIES-FAILURE TO KEEP HIGHWAYS IN REPAIR-FISCAL COURT NOT SUBJECT TO INDICTMENT-PROSECUTION OF OFFICERS FOR NON

FEASANCE.

Held:

The fiscal court of a county charged by statute with the duty of keeping the public highways in repair, can not be indicted as such, for failure to perform that duty, as neither the county nor the fiscal court as its governing body, is subject to indictment; the proper remedy being an indictment against the officers composing the court for wilful neglect in the discharge of their official duties.

CLIFTON J. PRATT, ATTORNEY GENERAL, FOR APPELLANT.

There can be no question that the indictment is definite and certain as to the particular circumstances of the alleged offense, and that such an offense is punishable by indictment at common law.