Hammond v. Ridgely's Lessee , 5 H. & J. 245 ( 1821 )

Buchanan, J.

This suit was instituted in the. county court of Anne-Arundei, for two tracts of land, called Dorsey's Search, one a resurvey on the other; and comes before us on six separate bills of exceptions, the four last of which, have been properly abandoned by the counsel for the appellant, the opinion of-the court below contained in each of them, being clearly right.

A former ejectment had been brought in the late general court, bn the demise of Daniel Dorsey, for the same lands, against Rezin Hammond, under whom the appellant claims, which was marked on the docket to be for .the use of ILchard Ridgely, the lessor of the plaintiff below in this case, and under whom Daniel Dorsey claimed as mortgagee, In that case, as in this, defence was taken for a tract'of land called Dryer's Inheritance, which being an elder tract of land than Dorsey's Search, (the resurvey,) it became important in the progress of the trial of the former suit, (as also of this,) to ascertain the true location of the tracts of land called Dryer's Inheritance and Dorsey's Search, (the original,) which depended on the construction to be given to the respective- patents. And the general court adopting the principle,- that it is -the peculiar province of courts to expound all grants, except in the case only of a latent ambiguity, instructed the jury that the fifth or last line of Dryer's Inheritance could only be cori rectly located, by running a straight course from the end of the fourth line, to the beginning. And that according to the true and proper construction of Dorsey's Search, the first line should be run binding on the river Patuxent, and the eight following lines, according to the courses and distances expressed in the certificate and grant, and not to bind on the river Patuxent; and the jury gave a verdict for the plaintiff accordingly.

The case was taken to the former court of appeals, on bills of exceptions, and that coui t assuming it as a principle, that in all cases of ambiguity arising on the face of a certificate or grant, as to the location of a tract of land, the jury is the proper tribunal to decide the fact of location on evidence de hors the instrument, reversed th§ judgment of the general court, and sent the cause back by procedendo, and on a new trial the defendant got a verdict; which presents first, the question, whether that opinion of the court of appeals is binding and conclusive on this court?

It is readily admitted that no argument in support of the negative of the question can be drawn from the circumstance, that that court is not now in existence; and that if it woqld have been binding on that court, in a subsequent suit brought for the same land, and depending on the same evidences of title, it is equally binding on this, and should be examined without reference to the abolition of that tribunal,

Tfie original constitution of this state, in distributing tha powers of the government, provides by the 56th article, “that there shall be a court of appeals, composed of persons of integrity and sound judgment in the law, whose judgment shall be final and conclusive in all cases of appeal frgm the general court, court of chancery, and court of admiralty,” which words, “whose judgment shall be final and conclusive in all cases of appeal,” &c. are supposed to be declaratory of the quality and legal effect qf a decision of the court of appeals. And it has been urged with a commanding force, that in virtue of that provision of the constitution, a decision of that court is conclusive as to the subject matter of the decision, in any subsequent suit for the same thing.

It is conceded that the expressions taken literally, are broad and comprehensive, but it seems to me, that the terms used, must be construed with reference only, to the thing intended to be created—a constitutional court of appeals— and can alone be understood, to mean, that the court of appeals go provided for, should be a tribunal of ultimate resort, and that there should not be created any higher court of appellate jurisdiction; intending only by the words, “final and conclusive in all cases of appeal,” that no suit taken to the court of appeals, after being adjudicated there, should be further prosecuted by appeal, to any other tribunal, that each particular case of appeal, should terminate and conclude with the judgment of that court; thus constitutionally guarding against the establishment by the legislature, of any other superior court of appellate jurisdiction; and not that the decision should be conclusive, as to the rights of the parties to the subject matter in controversy, in any other suit. And I believe the constitution has never heretofore been otherwise understood.

To construe it differently, and according to the literal import and signification of the terms used, would be to extend their binding quality, further than would perhaps be seriously contended for, so far at least, as respects the action of ejectment, It would be to render a judgment of the court of appeals binding-and conclusive upon all, whetherparties or strangers, for it would be difficult to prescribe bounds to its operation, and to pxempt strangers more than parties, from the effect of its binding influence. Unless indeed, in favour of strangers, the constitution should become the creature of arbitrary will, and be made to bend to suit the particular case, seeing that a literal interpretation admits of no distinction between parties and strangers; it is therefore binding upon all, if upon any, in any subsequent suit for the saíne land. And yet it is a settled principle, that the verdict and judgment in one action of ejectment, is n o bar to a recovery in another, but that a party interested, may sue for the same land as often as he thinks proper; every new action of ejectinent being supposed to be between different parties.

The act of 1790? chapter 42, which was also pressed into the argument, does not reach the question. Until the passage of that law, all causes that were carried to the court of appeals, terminated there. The judgment of that court, was final in each particular case of appeal, according to the literal provision of the constitution, and no further proceedings were had. And q plaintiff' against whom an erroneous judgment had been rendered, in the inferior court, which was reversed in the court of appeals, was under the necessity of, commencing de navo. And even this lie could not have done, if the judgment of the court of appeals'had, according to the literal sense of the terms, been final and conclusive, for that would have arrested any further proceedings- But that was never supposed, and to remedy the inconvenience of being driven to bring a new suit, the act of 1790 was passed, which directs, that in all cases in which the judgment of the general court shall be reversed by the court of appeals, on writ of error or appeal by the plaintiff, (and also in certain specified cases, where the appeal is by the defendant,) the transcript of the record shall be returned to the clerk of the general court, with a writ of procedendo to the judges of that court, directing them to proceed to a new trial of the cause, and that the opinion of the court of appeals shall be conclusive in law, as to the question by them decided.

The expressions, “and that the opinion of the court of appeals shail be conclusive in law, as to the question by them decided,” are relied upon as rendering the opinion of that court, conclusive as to the right of the parties, in any subsequent suit brought for the same thing. But however comprehensive they may be abstractedly considered, when construed as they must be, with reference to the subject matter to which they are applied—to the mandate of the procedendo, which they may be said to accompany, they can only be understood to mean, that the opinion of the court of appeals shall be conclusive upon the judges of the general court, on the new trial of the particular suit, so sent back to them, and can have no reference to any subsequent suit.

If any thing was wanting in support of this construction, that aid might be borrowed from the act itself, which has the very same provision, in relation to cases removed to the general court from the county courts; with this further provision, “that the party against whom judgment shall be rendered by the general court, may appeal, or prosecute a writ of error to the court of appeals.” Now if the expressions used, that is, “that the opinion of the general court, shall be conclusive in law, as to the question by them decided,” are to be understood according to their literal import, it would be useless to appeal from the judgment of the general court, and the provision giving to the party the right to appeal is grossly absurd, since the judgment of the general court would be conclusive upon the court of appeals, and the appeal could afford no relief, which it cannot be presumed was the intention of the legislature. Hence it would seem to follow, that the judgment of the general court, was only intended by the legislature, to be conclusive upon the judges of the county courts, on the new trial of the particular suit sent back to them by procedendo, and not to relate to any new or subsequent suit. And if so, as the same words, used in the , same law, and applied in the same manner, must be taken to have the same meaning, the opinion of the court of appeals can only be held tobe conclusive upon the judges of the general court, in the trial of the particular case sent back by procedendo, and no further.

the general court for new trial, without directing, “that But though the act of 1790, chapter 42, will not bear the construction attempted to be given to it, yet it serves to shed a ray of light on the subject, by the aid of which we are enabled to discern what was the legislative interpretation at least, of the 56th article of the constitution in the year 1790. For. if under that article, a judgment of the court of appeals was held to be final and conclusive beyond the mere appeal adjudicated by them; if it was deemed conclusive of the very right to the thing ‘in controversy, it would of course have been thought quite sufficient, to make provision only for sending cases back to the opinion of the court of appeals, should be conclusive in law, as ,to the question by them decided Since if conclusive as to the right of the parties in another action, it would on th& procedendo have been binding upon the judges of the general court, under the constitution, and they must have conformed to it, without that enactment. Hence it is clear, that neither the legislature, nor he who drew the law, and who was obviously acquainted with the judiciary system of the state, and the powers and practice of the courts, understood the constitution to mean, that a judgment of the court of appeals should be binding in any subsequent action, or that it should be any further final and conclusive, than as it put an end to the. particular appeal in which it was given, and to all further proceedings in that suit by way of appeal. And the whole subject must have been before them, and under consideration, from the very nature of the inconvenience intended to be remedied by the writ oí procedendo. What is said of the legisIative interpretation of the constitution, applies as well to the legal effect and operation of a judgment of the court aPPea^s on general principles, as a court of last resort, for if binding at all, whether by the constitution or on general principles, the provision spoken of in the act of l'J90ft was equally unnecessary. Nor is it believed, that there is any reason in sound policy why it should be absolutely binding. It ought indeed to be so far respected, as to secure to it, all the beneficial results of a binding quality, without its inconveniencies.- It should always be approached with hesitation, and never should be lightly shaken.

Thus guarded, it stands as secure as sound policy could wish. But even if it should be admitted, that under the 56th article of the constitution, a decision of the court of appeals on the legal merits of the case, is binding as to the subject matter of that decision, in a subsequent action, between the same parties or those claiming under them, for the same thing, or that independent of the constitution, that would, on general principles be the legal effect and operation of such a decision by a court of last resort; then this question presents itself, Is the opinion of the court of appeals, in the case of Hammond and Dorsey of that character? And it appears to me that it is not. No decision was made by that court upon the legal merits of the case; the question there presented, arose on the construction of two grants, as to the location proper to be made of the lands, which necessarily involved the legal rights of the respective parties, but on which, the court gave no opinion. On the contrary they declared, that “in their opinion, the expressions used in neither of the grants, were so plain and explicit as to exclude all doubt, and that they did not mean to say, in what manner either of the tracts of land ought'-to be, located,” thus declining to give any construction to either of those instruments. But assuming as a general principle, “that in all cases of ambiguity arising on the face of a certificate or grant, as to the location of a tract of land, the jury are the proper tribunal to decide the fact of location on extrinsic evidence,” they reversed the judgment of the general court, without determining whether the construction given, to the grants by that tribunal, was right or wrong; leaving the question of law, as to the true and proper construction of the grants, entirely open, and undecided, and referring to a jury, (as it would seem,) not the construction of the grants, (for they have not .said that that was' a matter proper to be left to a jury;) but ihe fact of the original running or location, separate from, and independent of the . grant. So, that in point of fact, ho construction has ever been given to the language of those grants* either by the court of appeals, or by a jury. All that was in reality done by the court of appeals, was to réfuse to decide the questions of law submitted to them, and to send the, casé back to be decided by a jury on a different question, a question of fact, out of the grants. Arid to give to the refusal of that court, to expound the grárits in question, the effect to preclude all other courts from doing áo, would be to make a verdict of a jury, on a fact of location, distinct from the expressions of tlie grants, binding and conclusive on the rights of the parties in any subsequent ejectment for the same land; a property not legitimately belonging to verdicts in actions of ejectirient.

But if the opinion of the court of appeals can be understood,, as casting the construction of the grants of Dry•er’-s Inheritance ■ and Dorsey's Search on -the jury, it is merely an opinion on a question of Jurisdiction; an opinion that it was a matter fit to be left to a jury, and not a decision on the legal, effect and operation of the grants, not a judgment pronounced on the légal merits of the parties. And with all the deference due to the constitution Of that tribunal, and to the character and’standing of the individuals who compose it* I do not think it binding upon this court. Nor is it fit that it Should be; the principle oil which the opinion is expressly founded* is denied to be law, and has since been solemnly overruled in several cases; and if thé opinion* the principle of which has been So ruled to be erroneous, stands at all, it must stand without legs; and they who claim under it, must hold contrary to the acknowledged law of the state, and the established rule for the exposition of all other grants. And thus there would be two received rules for the. construction of grants, one governing Dryer's Inheritance and Dorsey's Search, and the other applicable to, and pervading all other grants; .the two rules altogether inconsistent with* and repugnant to each other, arid yet each of them equally available- in the courts of law of this state. ./ ' ’

Bút Í caiiriot perceive why, on any principle either o(J ^aw Or policy, an opinion of any court should be deemed rif binding authority; when the! foundation of that Opinion is taken avtayj It is the principle that should govern,’ the substance and not the shadow. 'Sound policy does indeed require, that principles laid down, and acted upon by-courts of last resort, should not be.lightly shaken, as it rs to established principles, and not to isolated opinions, that parties look in making their contracts. But when the assumed principle of an opinion in any case has been annulled, the opinion should fall with it, and the subject matter be made to rest, upon the settled rule governing all other like cases. . _

It Cannot be denied,- that Richard Ridgely, the lessor of the plaintiff" below, was substantially á party in the case of Hammond and Dorsey, but ‘as neither the opinion of the court of appeals, nor the verdict and judgment in that case, can be relied upon by way of estoppel^ (which certainly has nothing tci do with the case as it is presented,) it is unnecessary to go into any examination of that doctrine This case then, I think,- stands altogether, uftaftected by that of Hammond and Dorsey, and as it has been ruled by this court,- in several recent cases, and particularly in the casé of Pennington vs. Bordley’s Lessee, at June term 1819,’ that the construction of a grant,- falls peculiarly within the province of ,the court, and is not a matter fit to be left to a jury, except only in a case of latent ambiguity, the construction proper to be given to' the grants of Dryer’s Inheritance and: Dorsey’s Searchj remains only to be examined-.;.

■As tó Dyer’s InheHiancé the" only difficulty is,* in détefmining- how any doubt could ever have existed; for if one grant can- bé mofe .clear and explicit,- and more free from ambiguity than another, it is the'grant for Dryer’s Inheritance, in the description of the fifth oí last Unte, which forms the Subject of controversy.- The expressions áre, “then)” (that is from the end of the fourth line,) “by a straight line to thé first bounded tree,” which must and can only be located, by running a straight course from the end' of the fourth line, wherever that ro.ay be,- to, the -beginning tree•,and- the meanders of the river Patuxent, as contended for, cannot be pursued without a direct violation of the grant.- "With respect to Dorsey’s Search^ if-there is any ambiguity, it is clearly patent, and falls with» in the rule established in the case of Pennington and ~ Dordley. But if the grant alone is looked to, without recourse to extrinsic matter, there will be found no difficulty in expounding it, and it is only by resorting to matter de hors the grant, to contradict, and not to explain it, that any difficulty has been produced.

By inserting the word “running,” immediately after the word “.then,” at the beginning of each line, the sense is made complete, and every word in the grant will be gratified; and it is not proper that any thing more should bq. understood, than that which is necessary to, perfect the sense. The words, “and bounding on the said river,” cannot be introduced without evident risk to one half of the description given in the grant; for if in point of fact, the meandei;s of the river do not correspond with the courses expressed ip the grant, to adopt the words, “and bounding on the said river,” (as is insisted on,) would be to reject the courses altogether, since under the authority of a long course of decisiqns by thy courts of this state, the binding call on the river so adopted would be peremptory; and thus by arbitrarily adopting what is not necessary to perfect the sense, that would, be defeated which is plainly expressed in the grant, thq description, by courses and distances. I agree therefore in opinion, with the judge before whom the cause was tried on each exception, and think that the judgment ought to be affirmed.

Earle, J.

There are several exceptions in the record; of-this case, brought up by the appellant, the defendant, in the court below. The arguments of her counsel have a bearing on the three first only, and the rest, it seems to be admitted by them, are'correct decisions, and ought to’, be.. affirmed.

in the first exception the county court decided, that between the same parties, and those claiming under them, the judgment of the court of appeals, on the same question of law, is conclusive, but that Richard Ridgely, the lessor of the plaintiff below, could not be concluded by the question of law decided in the court of appeals in the case of Daniel Dorsey’s Lessee, use of Richard Ridgely, against Rezin Hammond, because in a legal view he was not a party to that suit, and claimed in this action by a title paramount the title of Daniel Dorsey; and in the same exception the court further determined, that the construction of grants belonged exclusively to the courts of justice, except in the single instance of a latent ambiguity,, where alone is devolved on the juries of the country, the right of exposition, aided by evidence de hors the grant..

In the second exception, the parties were fairly before the court on the true meaning of the certificate and grant of Dorsey’s Search, (the original,) and the court below decided, that after its first line, the tract was to be located to run with course and distance only, and was. not to bind on the Patuxent river in any of its lines, except the first.

The third exception is a recapitulation of the first and second as to the court’s opinion of the construction of the certificates and grants of Dorsey’s Search, (the original,), and of Dryer’s. Inheritance, which last tract, in its last line, it was determined by the court, ought to be located with a straight line, and not circuitously with the windings of the river.

These exceptions, connected with the argument in the cause, have presented a question for the decision of this court, of high interest to the parties concerned, and of great moment to, the public at large. It is a question which involves in its consideration, the legal effect an adjudica-, tion of this high court of judicature is to have on its own future operations, and being in every view momentous, it, has engaged the best reflections, and the utmost attention of the judges,

There must reside in every court of supreme authority, and especially in this of appellate jurisdiction of last resort, a capacity of revising and correcting its own decisions. That such a power rests in this court, has been conceded in argument; and yet a construction of the 56th article of the constitution is insisted on, that seems to deny its existence. If, as it has been said, it is the literal meaning of this article of the constitution to, make a judgment of the court of appeals final and conclusive in all future cases, in what case is. it we are to exercise an authority to review and abrogate its decisions? This construction is so at variance with the very nature of courts of justice of supreme jurisdiction, it is fair to infer that such is not the intention of the constitution; and indeed, it appears to me, the expressions employed are inserted for a. quite different purpose—either to describe and character rise the court established, or to restrain apprehended legislative encroachments on the judicial functions of the state.

The generality • of the expressions of this article of the constitution excludes the idea of an intention to make a judgment of the court of appeals final and conclusive on the same question of law between the same parties. Had this been the object, more appropriate language would have'been used to express it; and that it was not the object js deduciblefrom the consideration that it whs-wholly unnecessary in every other action, except the action of ejectment, in which the propriety of it may be questionable. In all other actions, but ejectment, former recovery may be pleaded in bar, and this, by the rules of the common jaw, without the aid -.of constitutional provisions. Moreover, if this h¡ad been understood to be the' cléar meaning of the 06th article of the constitution, a part of the act of 1790, - chapter 42, was superfluous legislation. On the return of a record with a procedendo, the opinion expressed in the -case would have been conclusive without enacting that it, should be so.

Having expressed my. opinion, that the article referred to in the. constitution does not render a judgment of the court of appeals, on the same question.of law, conclusive between the same parties, I am equally decided, that the act of 1790, ch. 42, does not make such judgment conclusive, except on the subordinate tribunal to which the- record is returned on a pro cider, do. I.t is, to be .remembered, that this act of the legislature speaks of more appellate jurisdictions than one, of the appellate jurisdiction of the -general court, as-well as of ihe court of'appeals; and if the opinion of the inferior appellate court is'conclusive because it has been" before expressed on the, saqie subject matter between the same parties, it must- have that effect in the same case between the same.parties whenfit appears^in the supreme appellate court;" that is, -the" opipiofi of the inferior must govern the opinion of the superiorappellaic.jurisdiction. This cannot be the meaning of -the act, and thence. it is to be inferred, that tjie opinion expressed in the appellate court was-intended to be conclusive only" on the court to which the record is returned on the procedendo. It is admitted in this last case, such opinion of the superior court lias a bjpding force on the inferior tribunals. and if the injunctions of the law are obeyed by the county court, on a second exception the court of appeals will affirm, not because the opinion is approved, but because a, court cannot err that obeys the positive injunctions of thq law. This is the amount of the cited decisions between Tenant and Ilambleton, and Mundell’s lessee and Clarklee, and it was never intended' that those decisions should bq understood in any other way.

The solemn adjudication of an appellate court of last resort, I am free to admit, ought, on general principles of judicial propriety, to be approached, with caution, and perhaps they should never be disturbed, except to settle some great rule of property the public interest requires to be reviewed. On a second trial in ejectment between the same parties, and those claiming under, them, on the same subject matter, I shopld say they ought to be. considered conclusive, unless, which is hardly, a, supposable case, glaring injustice has been, done,' or. some egregious blunder has been committed. But to give the binding decision those conclusive qualities, it ought to be explicitly declared, and perfectly understood, and to become the law of the case it ought definitively to settle the .rights of-the litigant parties. If an exposition is given to a will or. deed, fully defining the rights of the parties, or any other opinion is expressed settling the title to the thing in, dispute between them, it should be deemed irrevocable, and never again touched, where the same persons, and those claiming under them, are concerned in the contestation. Bichará Bidgcly, the lessor of the plaintiff, was for every substantial purpose, a party to the ejectment formerly decided in the court of appeals between Daniel Dorsey and Rezin Hammond, and if that court have disposed definitively of the subject, and fully and explicitly determined the rights of tire parties, this court ought to yield to the judgment, whatever our individual opinions may be of its correctness. This is not, however, in my apprehension, the character of that decision; so far from settling the meaning of the certificates and grants of Dorsey's Search, the original; and Dryer's Inheritance; so far from determining to whom the controverted land was originally granted, by a sound construction given to these documentary papers, the court'of appeals have declared the courts of justice, and themselves inclusively, utterly incompetent, in point PF law, to give an exposition to them. That court has only adverted to those papers to say, that the office of locating those tracts, according to the meaning of these papers, to be come at through the medium of extrinsic testimony, belongs alone to another tribunal—to a jury of the country—and not to the corirt of justice. Agreeably to these ideas of the court of appeals, a jury has been allowed to act on the case, and the inconclusive nature of their verdict, being a verdict in ejectment, need not be dwelt upon. By thus acting, the court of appeals as effectually dismissed the case, in my'idea, from their consideration; as if they had referred the decision of it to a distinct unconnected court or jurisdiction, whose adjudication certainly could not be said to express the opinion of the court bf appeals. It is then my deliberate opinion, that the judgment of the court of appeals in the case of Daniel Dorsey’s Lessee use of Rickard Ridgely, against Rezin Hammond, ought not to have been considered conclusive by the court below, and by refusing so to consider it, that court has not erred.

It remains for me to say a few words on the construction of the certificates of Dorsey’s Search, (tire-original,) and Dryer’s Inheritance. An,d here I entirely coincide iu the opinion pronounced by the learned judge in the court below. With him I think, that Dorsey’s Search, (the original,) is to be located by course and distance in all its lines from the first to the second tree, except in its first line, which it is admitted on all hands is to bind on Patuxent River. Among the objections urged to this construction, the principal one appears to be, that the word “running” cannot be carried on from the first to the second and other courses, to render the sense perfect, without taking with it the words “binding on the river,” and that there is a grammatical impropriety in disconnecting the one from the other. The solidity of this objection is not perceived by me, and a case may be readily stated, where the latter expressions, “binding on theriver,” might not only be dropped, but where to connect them with-the word “running,” in the subsequent courses, would be to oppose the acknowledged meaning of the sentence. Let us suppose that the expressions in the certificate had been thus; running and binding on the river the tico first of the following courses, viz. N 4° E 87" perches,, iheii North 62° E 50 perches, then Ñ 21° E 170 perches; and so on through all the courses of the certificate; to connect the latter words, “binding on the river,” with the former word “runniiig,” ánd apply them to the third course, it would read ‘‘then running and binding on the river N 21° E 170 perches,” in direct violation of the expressed hi caning of the surveyor, who has declared that the two first Only of the courses of the certificate should run and bind on the river. This point of construction is susceptible of much further elucidation, but 1 have only touched it to express my opinion on it, which I believe is supported by all the members of the court who have heard the argument» The question arising on thé construction of the certificate of Dryer’s Inheritance is too plain for discussion» It is most obvious, that the last, or horite course, must be run with a straight line, and cannot be run with the meanders of the river, there not being a single expression any where to be found to sanction such a location.

I concur with the county court in their decisions on each of the exceptions, and in my opinion their judgment ought to be affirmed.

Martix, J.

I think the judgment of the court below, in the first bill of exceptions, is erroneous, and ought to be reversed; but I confess I feel great diffidence in my opinion, when in opposition to that of the learned gentlemen with whom I am associated.

In the trial of this cause several bills of exceptions were taken by the defendant to the opinions given by the court^ but as the three last have been abandoned by the appellant, it is necessary for this court to consider the two first exceptions only.

It appears from the rec'ord in this case, that the tract of land called Dorsey’s Search, was granted to John Dorsey in the year 1694, and was afterwards vested in Richard Ridgely, who conveyed it by a deed of mortgage to Daniel Dorsey. That an action of ejectment was brought in the name of Daniel Dorsey, the mortgagee, in the general court, to recover the possession of part of this tract from Rezin Hammond, the then proprietor of Dryer’s Inheritance. That this action was instituted by Richard Ridgely, for his use and by his direction. That he alone conducted the suit, employed counsel to sustain it, paid all the expenses, and remained in possession of the land. That a verdict was rendered against Rezin Hammond, who appealed to the court of appeals, where the judgment of the general court was reversed. That Richard Ridgely, having paid the money due on the mortgage, obtained a deed of release from Daniel Dorsey, and instituted this suit against the present defendant, who claims under Rezin Hammond, for the same land claimed in the fir}st ejectment, I have given this shoi't statement of' the case to show the relative situation of the parties in both ejectments; That Richard Ridgely was the substantial plaintiffin both cases; that they were commenced by. his direction, and. prosecuted solely for his use and benefit; find thei-efore, for all the purposes of the question now before uS3’ were the same parties, or those claiming under them-;

Whether a .judgment of the court of appeals is conclusive upon the" question decided by them, between the same parties in interest, or those claiming under them, is presented to us in the first bill of exceptions; and in forming my opinion upon it, I have rested; in a great measure, up • on the constitution of Maryland.. Policy, public convenience, and the security of purchasers, are worthy the consideration of the court. They are powerful auxiliaries in this case, but I think the Constitutional provision is peremptory, and conclusive Upon it.. . '

In the organization of the judicial system of this state; courts have been established with original jurisdiction, and in the course of judicial proceedings, either party may call in the aid of the court to decide upon questions of law; The judges thus called on are authorised to éxpound tiré law, but their decision is not conclusive upon it. It maybe carried to a higher tribunal for adjudication. The court of appeals has jurisdiction of it, out when decided by that court, it is no longer subject tobe' revised. Iii the emphatic language of the constitution, it is final and conclu- . sive; the question decided is put to rest; Do court shall have a power .to revise it; all courts shall be bound by it. The constitution declares, there shall be a court of appeals, whose judgment shall be final and conclusive in all cases of appeal from the general court, court of chancery, and court of admiralty. It is declaratory of the power and effect of ajudgment'in the court of appeals: And is not conclusive~ ness of decision consistent with the character and dignity of a tribunal of the last resort? The object to be attained is cerlai/niy a point at which controversy shall cense; hut this desideratum is defeated if it is still open to revision. It is a solecism of terms to say, a decision is final and conclusive, when it is subject to change and alteration.

It appears to me, no language can be more comprehensive than that of the constitution, and it must be conceded, no violence is done to it by my construction. No words of restriction; no words of limitation or explanation, are added to it; and I would ask, if the convention meant that the judgment of the court of appeals should not be subject to revision, what words would they have used more clearly to evidence that intention? Can human ingenuity suggest any terms by which it would be more fully expressed than that the judgment shall be final and conclusive? If it was intended merely to prevent the creation of other tribunals of justice, why was it not so expressly declared? Why use terms of universal import, if they were to be taken in a limited sense, unless indeed it was the object of its framers to give' to that august instrument, all the uncertainty which, it seems from the argument,- ought to belong to a decision of the highest tribunal in the state. Since then the language of the constitution is of general, and indeed universal import, I think we ought not to give it a limited construction, by which the law will be rendered fluctuating and uncertain, and a door will be opened to unceasing controversy.

This is my view of the constitution, and if it is not correct, what would be the consequence of it? If a judgment be reversed by the court of appeals,, and a procedendo awarded, it is admitted, by the act of 7790, the decision would be conclusive, on the question decided, in a second trial, and the court would be bound to conform to it. Yet although they would be bound to -conform to it in the second trial, if anew ejectment was instituted, and the same question was brought before the same court, between the same parties, at the next term, the decision would lose all its binding effects, and the court would be at liberty to-set it at defiance. To day it would be binding and conclusive upon the inferior court; to-morrow it would cease to be law, and be disregarded by them. Litigation would be in a circle with no point of certainty on which, it could rest.

It next becomes proper to inquire, what were the quesiions on which the general court and court of appeals differed, and whether those questions affected the merits of the case depending?

It was determined in the general court, there was no .ambiguity or doubt in the grant of Dryer’s Inheritance; that the court, and not the jury, were to give the construction of it; that the gi’ant was tp be construed by itself, and testimony extrinsic of the grant was not legal evidence to aid in its construction; and upon fhe same principles, the court, and not the jury, gave the construction to Dorsey’s Search. The court of appeals negative and reverse all those opinions of the general court. They say, there is doubt and uncertainty on the face of those grants; that the court had no authority to construe them; that they ought to have been submitted to the jury, who were the legitimate tribunal, with the aid of extrinsic evidence, to give their true construction; and for those errors they reverse the judgment of the general court. This is the construction I' give to the opinion delivered by the co\\rt of appeals. It is true, the language used by them is not very clear; and explicit; but if they did not differ vyith the general court, and differ in essential points, why did they reverse their judgment? And why did the decision of the cpujrt of appeals govern the court below upon the procedendo, and produce an effect in direct opposition to. that of the opinion of the general court in the first trial? For we find in the first trial, the court gave the construction to the grants, and the verdict was for the plaintiff. On the procedendo the construction of the grqnts was submitted to the jury, and the verdict y/as for the defendant.

It has been contended, that no construction has been given by the court of appeals to those grants, aud therefore the decision has only established a general principle, and, not the law of the grants. I admit the court of appeals have not given a full construction to them; they have not said whether their expressions were binding. But can it be a correct position, that because the court of appeals have not decided every question that could arise in a cause, that therefore its decision should not be conclusive upon those hey did decide?

Altho’ they have not given a full construction to those grants, they have given a character to them, and they dedared that the jury, and not the court, was the proper trito constipe them. The general court held the decision to be conclusive, and conformed to it. In the trial of- , this ejectment^ the same questions were presented to the county court, and in my opinion, the decision of the court pf appeals was as conclusive upon them as upon thegeneral court.

Upon the second bill of exceptions, I concur in the opinion expressed therein by the court below. The binding expressions in Dorsey’s Search ought to be confined to the first line, and cannot be extended further.

Dorsey, J.

delivered his opinion, which we regret we have not been able to procure, in which he concurred with Judge Martin.

Winder suggested to the court, that as they were equally divided in opinion, no judgment could be rendered; bpt

The Court directed the judgment to be entered affirmed. See Dighton vs Grenville, Cole’s cases, in Parl. 66, where the judgment was affirmed, there being three judges for re • versing, and three for affirming, so that a majority being required to reverse the judgment, it was of course to stand.

JUDGMENT affirmed.