Hays v. Richardson , 1 G. & J. 366 ( 1829 )

Dorsey, J.

delivered the opinion of the court at this term. The only question arising off'the first-bill- of exceptions is, were the court below, right, in compelling a witness to give testimony, which might subject him to a civil action or pecuniary loss, when offered by the party against whom, his interest would prompt him to testify ? On this subject, we have no doubt, since the decisions of this court, in the cases of Taney vs. Kemp, and the City Bank of Baltimore vs. Bateman. In Maryland, the rule of law is settled, that no person who is called as a witness, (not beingfa party to the suit) can refuse to give testimony on the ground, that he may thereby become liable to a civil action, not of a penal nature, or' sustain pecuniary loss, or that the verdict may be used as evidence against him, in some other civil.proceeding then pending, or which may thereafter be instituted., Of the opinion of the County Court on this point in the cause, we entirely approve, but we cannot concur with them, in the decision they have.given in the second bill of exceptions. It is. wisely settled’agreeably to the suggestions of public justice and expedience, that a witness on the voir dire may by the party, objecting to his examination in chief, for the purpose of shewing his interest, be called on to state tbe contents of written instruments,-which are not produced, and the reason assigned is, that the party objecting could not know previously, that the witness would h,e called, and consequently might not be prepared with the best evidence to establish his objection. For authorities on this subject, vide t Stark. Ev. 120. 2 Stark. Ev. 756, and the cases there referred to. In the third bill of exceptions is involved a question of much greater difficulty and doubt. If the instrument of writing given by Bond to the appellee, be considered a grant of an easement or right of way, (as according to law and the apparent intent of the parties, it may be, if viewed without reference to our acts of registration) then it becomes necessary to examine what is the character of the interest transferred, and how. far it is a subject operated on, by the act of Assembly of 1715, eh. 47, entitled' an act for quij eting possessions, enrolling conveyances, and securing the estates of purchasers.” It has been urged that the right transferred, is nothing more than a tenancy at will. But such a construction is not warranted by the terms of the contract. It is not a demise, or conveyance to continue, in the appropriate phraseology of such tenures “ quamdiu ambobus partibus placuerit,” and which, by the unambiguous terms of its creation, must expire as soon as its continuance ceases to be the will of both parties ; but it is a grant whose duration is not to terminate until the will of both parties unites for its discontinuance. In the language of the agreement, it is to continue until Richardson and Bond shall agree, it shall be shut up or altered. Bond’s determination alone, therefore, as evidenced by his conveyance to the appellant, is not a happening of the contingency on which the estate was made to depend. It is unnecessary to determine whether this easement was to expire with the life of Richardson, or to remain after his death for the use of the public; in either event, enrollment is necessary, if the subject matter of conveyance be such as is contemplated by either of the aforementioned acts of Assembly. The title of the first act of Assembly distinctly sets out its object, viz: the “ quieting possessions, enrolling conveyances, and securing the estates of purchasers j* and for the accomplishment of that most desirable end, the 8th section provides that “ no manors, lands tenements or hereditaments whatever, within this province, shall pass, alter or change, from one to another, whereby the state of inheritance or freehold, or any estate for above seven years shall be made or take effect in any person or persons, or any use thereof - to be made, by reason of any bargain and sale only, except, the deed or conveyance by which the same shall be intended to pass, alter or change, be made by writing, indented and sealed, and the same be acknowledged in the provincial court, or before one justice thereof, or in the County Court, or before two of the justices of the same, where such manors, lands, tenements, or hereditaments lie, and enrolled within six months after the date of such writing indented as aforesaid.” The first enquiry to be disposed of is, whether the estate or right designed to be transferred by the grant, be an hereditament, (as that is the most comprehensive term, including both lands and tenements.) In 2 Bla. Com. p. 20, an incorporeal hereditament is defined to be “ a right issuing out of a thing corporate (whether real or personal) or concerning, or annexed to, or exercisable within the same,” which incorporeal hereditaments, the learned commentator states in the succeeding page, “ are principally of ten sorts, advowsons, tithes, commons, ways, offices, dignities, franchises, corrodies or pensions, annuities and rents,” and in page 35 of the same book, it is said “ a fourth species of incorporeal hereditaments is that of ways, or the right of going over another man’s ground. This may be grounded on a special permission, as when the owner of the land, grants to another the liberty of passing over his grounds, to go to church, to market, or the like; in which case the gift or grant is particular, and confined to the grantee alone, it dies with the person.” These references will suffice to show, that the way in question, is an hereditament. Is it then such an hereditament as the act of 1715 can operate on? is the next question to be considered. That act of Assembly, as appears by the preamble to the act of 1766, is only applicable to such conveyances as operate by way of bargain and sale, and it is superfluous perhaps to say, that in all our legislation upon the subject of enrollment of deeds, where “hereditaments” are spoken of, they are such as attach or relate to realty, not to personalty. If the deed from Bond to Richardson had been for the transfer of a right of way in esse, there can be no doubt, but that it would pass by deed of bargain and sale; and that for the legal transfer of such an interest by deed of bargain and sale, all the solemnitiesorequired by the act of 1715, must have been pursued. But such is not the case before us; it is an attempt to transfer, not a way already in esse, but a way de novo, which may be done by grant or lease; but cannot be effected by way of bargain and sale. As authorities to that effect, see Beaudley vs. Brook, Cro. Jas. 189. 1 Ba. Abr. 468, tit. Bargain and Sale, letter B, and Shep. Touch. 226, and the cases there cited. It is assuredly no disrespect to the Legislature of 1715 to suppose, that at the time of their passage of the law referred to, they may not have recollected this technical, subtle distinction, between the mode of transferring rents and ways in esse, and de novo, and they may therefore have acted under the impression, that their act, chapter 47, affected the one in the same manner that it did the other. But, whether they did, or did not labor under this misconception of the law, according to our view of the rational, liberal construction, that ought to be given to acts of the Legislature, upon such subjects as the present is wholly immaterial.

Experience having shown, according to the preamble to the act of Assembly of November session, 1766, chapter 14, “that the good end and purposes of the said act (meaning the act of 1715) are now in a great measure eluded by the frequent use of conveyances by feoffment, lease and release, limitation, and declaration of uses, and other modes of conveying; and whereas a general registry of all deeds and conveyances of land, would very much tend to the security of creditors and purchasers, the preservation of titles, and thereby, to the advancement of the value of real estates, and particularly, to prevent abuses and deceits, by mortgages, and the purchase of pretended titles;” the Legislature enacted “ that after the first day of May next, (1767) no estate of inheritance or freehold, or any declaration or limitation of a use, or any estate for above seven years, shall pass or take effect, except the deed or conveyance by which the same shall be intended to pass or take effect, shall be acknowledged in the provincial court, or before one of the Justices thereof, in the county court, or before two justices of the same county, where the lands, tenements, or hereditaments conveyed by such deed or conveyance do lie.” It has been urged, that as the preamble to the act of 1766 speaks merely of a general registry of deeds or conveyances of “ land,” that no recording is required by it, but of deeds or conveyances, by which the land itself passes; and that this construction is strongly supported by the words of the enacting clause, which requires the deed to be recorded in the county where the lands, tenements, or hereditaments do lie ; and the clerks to keep books in which the deeds are to be registered, and alphabetted in the name of the parties thereto, with the name of the land and quantity of acres. But these suggestions appear much more technical, and critical than substantial. Both acts of Assembly being in pari materia, must be construed together as one system. The first law having embraced incorporeal tenements and hereditaments, ingenuity itself cannot insinuate a reason why they should not be included in the second. 1 To confine that act of 1766 to conveyances only, by which the land itself passes, is utterly subversive of that complete system of enrollment, manifestly designed to be established ; is inconsistent with that part of its preamble, which sets out the moving inducement to legislate on the subject to be, to remedy the evil, that the act of 1715 extends only to conveyances of lands, tenements and hereditaments, by way of bargain and sale only, and that other modes of conveyance (meaning by necessary implication of lands, tenements and hereditaments,) had been frequently used to the elusion of the good ends and purposes of that law; and is also inconsistent with that part of the preamblé, which declares as the objects of the Legislature in adopting a general registry, to be “ the security of creditors and purchasers, the preservation of titles, and thereby the advancement of the value of real estates.” If contradictions, or incongruities exist between the preamble and enacting clause of a statute, the latter shall prevail. There is, however, no such contradiction or incongruity, in the act in question; construe the word “of” before the word “land,” to mean concerning or relating to (meanings of which it is susceptible, and not unfrequently bears) and perfect harmony is at once restored. By no rule of interpretation can the force of the words “ tenements or hereditaments” be evaded, or their introduction into the enacting clause be accounted for, consistently with this confined exposition attempted to be imposed on the act of 1766. As to the stress which has been laid upon the words “ do lie,” to prove that they can relate to lands only (as incorporeal hereditaments, it is said cannot be alleged to lie any where) it appears to be a construction too subtle, not to say hypocritical to have entered into' the consideration of the Legislature in passing the law. Nor are we aware that it would be an unwarrantable invasion of the rules of grammar, of the import of terms, or the licensed figures of speech, to say, that a right of way lies in a county where it exists and is exercisable. As to the alphabet to be kept by the clerk, with the entries to be made of the name of the land, and number of acres, those requisites are applicable to the transaction, as important, and necessary to the public in recording a deed transferring an incorporeal hereditament concerning land, as if it had been a conveyance of the land itself. If this cramped interpretation of the act of 1766 Were to prevail, by no possible deed of conveyance in pais could the husband and wife uniting, grant a rent charge or right of way, on the lands of the feme, so as to hind her or her heirs after the death of her husband, and the public, and the profession, would learn with astonishment at this day, that notwithstanding our system of general registry—a grant of a rent charge de novo, equal to the whole value of the land on which it attaches, and rights of way, estovers, &c. to any supposable extent, may be legally created, without any entry thereof appearing on the public records; but if a rent charge or right of way in esse be conveyed by bargain and sale (the usual mode of conveyance) then all the solemnities of acknowledgment, registration, &c. are required. Cui bono? It adds nothing to the security of creditors or purchasers of land, or the preservation of their titles, because such enrollment furnishes them no means of ascertaining the existence of the conveyances. The alphabets discloses not the name of any person, as a party to such conveyance, who ever owned the land, nor in your application to the Clerk of the Land Records, can you inform him in whose name the search is to be made. It is a matter of minor importance to creditors or purchasers, to whom a rent charge is payable, (they are rarely for any length of time left uninformed upon that subject) but it is a matter of vital importance to them to know, whether there be a rent charge or not. In the registry of deeds, therefore, it is an object of ten times more importance “ to the security of creditors and purchasers, the preservation of titles, and the advancement of the value of real estates” that a record should he made of de novo rent charges, and incumbrances on land, than of those in esse. The former are always sought for, and might be easily found by creditors and purchasers, whilskthe latter are rarely if ever sought for, and could not he found, but by reference to every deed recorded in the Land Records, since the date of the patent of the tract of land, into the title of which the examination may be made.

We are aware that it has been ruled in England, that a license to use, a beneficial privilege upon the land of another is no estate or interest in the land, and notwithstanding the statute of frauds may be granted without writing. In the case of Wood vs. Lake, Say. 3, it was decided that a parol agreement for liberty to stack coals upon the land for seven years, and to have the sole use of that part of the close upon which the liberty to stack coals was given, is neither an estate or interest in or out of land. According to this decision, if J1 by parol for valuable consideration agree that B may stack coals upon his lands for ninety-nine years, renewable for ever ; and that B and his assigns during that period, have the sole use of the lands, such agreement is unaffected by the statute of frauds, and though operative to the full extent of its terms, transfers no estate or interest in the lands. Yet in the leading case of Crosby vs. Wadworth, 6 East. 602, a parol sale of a standing crop of mowing grass then growing, was held to be within the statute as being an interest in the land. In Wood vs. Lake the judges rely on the case of Webb vs. Paternoster, reported in Palmer, 71, and Popham, 151. Where a parol license to stack hay upon land was held a charge upon it, in whosoever hands it might come; but say the court, it is countermandable unless a time certain is fixed for its enjoyment, “ as if I license one to dig clay in my land.” This case let it be remembered, was before the statute of frauds; and therefore could be no warrant for the decision in Wood vs. Lake. In fact the only question which could have arisen in Webb vs. Paternoster, as to the necessity of iwiting to the transfer of such an interest, as that attempted to be created, must have been on the old principle of the common law; that an incorporeal right could only pass by deed. But if the opinions of the court in that case are to govern cases since the statute of frauds,1' are we prepared to go the length to which those opinions must carry us ? To determine that a parol license to dig clay in land, is the same as the privilege to stack hay on it; but gives no interest in the land, though a charge upon it into whosoever hands it may come. Or to illustrate the principle still further, that an oral license to dig coal or iron oar in mines for five hundred years, and agreeably to the case of Wood vs. Lake, to have also the sole use of the land, in which the mines are situated during that period, passes the right intended to be conferred, and charges the land therewith, is unaffected by the statute of frauds, and yet creates no lease, estate, or interest in the land. It cannot be denied that the case of Wood vs. Lake, has in England been followed by subsequent adjudications. As late as the year 1818, in Taylor vs. Water, 7 Taunt. 384, Gibbs chief justice of the Common Pleas, states that a license to enjoy a beneficial privilege on land may'be granted without deed, and notwithstanding the statute frauds without writing.” It is a license not an interest in the land.” But these decisions are irreconcilable with the opinion of Lord Ellenborough in Fentiman vs. Smith, 4 East. 107 where the defendant having orally granted permission to the plaintiff to pass water to his mill by means of a tunnel over de - fendant’s land; who assisted in making the tunnel, but after-wards obstructed the water, in an action brought, on account thereof, it was decided that “ the title to have the water flowing in the tunnel over the defendant’s land could not pass by a parol license without deed.” Sugden too in his law of Vendors, page 57, attacks the case of Wood vs. Lake with great effect, and pronounces it “ to bo in the very teeth of the statute, which extends generally, to all leases, estates, or interests.n In Thompson vs. Gregory, 4 John. 81, the Supreme Court of JSTew York, (of which Kent, and Spencer were members) determined that a right to overflow the land of another, by the erection of á mill dam, was an incorporeal hereditament, which could be transferred by deed only, and not by parol permission to use it; and if it were otherwise that the assignment of such an interest, since the statute of frauds must be in writing.

With such strong reasons and high authority for questioning the soundness of the principles adjudicated in Wood vs. Lake, and subsequent cases which have followed it, we feel no dispo sition for the sake of analogy to give a similar interpretation to our act of Assembly of 1766, regulating the execution and enrollment of conveyances of real property, tó that given in Wood vs. Lake to the statute of frauds. The language of its provisions comprehends the privilege attempted to be conferred by the instrument before us, and the policy of the law, the interests and convenience of the public, forbid that we should restrict its operation. In no other way cari the leading object of the legislature, the “securing the estates of purchasers” be effected; their design was, that all rights, incumbrances, or conveyances, touching, connected with, or in any wise concerning land, should appear upon the public records. If parol or unrecorded licenses of the character of that in controversy were tolerated, frauds and losses upon purchasers would be innumerable as' may readily be imagined. A man might pay and receive a deed with all the solemnities of law, and covenants which could be devised (short of a general warranty which is rarely given) for a hundred acres or more of valuable meadow land, without the knowledge of the semblance of a right in any one by which its value could be imagined; on the next day he may learn that bis purchase is a mockery; that his neighbour under an oral license, from some remote proprietor of the property purchased, (oí which the vendor was ignorant) is about to inundate every foot of it by the erection of a mill-dam below, his remedy can no where be had. But suppose it were even admitted, that the principles established in Wood vs. Lake, and the cases bottomed upon it, stand free from all exception, it is humbly conceived that the case now under consideration is clearly distinguishable from them. The statute of frauds on the construction of which they arose, speaks only of estates or interests into or out of lands, whilst our act of Assembly embraces estates in lands, tenements or hereditaments, and if it be conceded, as it must be, that the right of way in question is an “hereditament,” it.surely would be stretching technicality to the verge of quibbling, to say that the right which one has in an “ hereditament” is not his “ estate” in it. ,

If we entertained even strong doubts as to what originally should have been the construction of this act of Assembly (of which we have none) they would in a moment be removed by adverting to the single fact, which the whole land records of the State will demonstrate, that from the year 1767 to the present day, grants and conveyances of de novo rent charges, rights of way, &c. have been as uniformly acknowledged and recorded, as deeds conveying the land itself. This contemporaneous unvarying construction of the act of Assembly for sixty years, ought not to be disregarded, but upon the most imperious and conclusive grounds. If there be error in it “ communis error facit jus.” We are sensible that we have given just cause of complaint at the unusual length in which this subject has been treated, but the deep interest felt in it by eycry landholder in the State must be our apology.

We concur in the opinion given by the County Court in the first bill of exceptions, but think their opinions in the second and third are erroneous, and therefore

judgment reversed.

(Note.) The decision of the court of King’s Bench in Hewlins vs. Shipman, 5 Barn, and Cres. 221, has been met with since writing the above opinion, by which it appears that the cases of Webb vs. Paternoster, Wood vs. Lake, and Taylor vs. Waters, have been so shaken, that they may be considered as virtually over-ruled, so far as regards the granting of easements by parol.