Warner v. Hardy , 6 Md. 525 ( 1854 )

Tuck, J.,

delivered the opinion of this court.

Three objections were taken to the admissibility of the deed of 24th December 1850, all of which were properly ruled against the defendant below.

A certified copy of an instrument required by law to be' recorded, proves itself as prima facie evidence of all circumstances necessary to give it validity. 6 H. & J., 234, Craufurd vs. State. Ante, 78, Barry vs. Hoffman.

Upon the question of residence of the grantors, we do not perceive that there is any difference in principle between this and the case of Carroll vs. Tyler, 2 H. & G., 57, where it was decided that the acknowledgment of a receipt was prima facie evidence that the party resided in the county in which it was taken, and certified under the act of 1809, ch. 168, which requires such papers to be acknowledged in the county of the party’s residence.

The justices of the peace certified that the persons acknowledging the deed, were known to them to be the parties named as and professing to be parties to the same. This, we think, was a sufficient compliance with the act of 1831, ch. 205. It shows that they were satisfied of the identity of the parties from their own knowledge; the law requires a substantial compliance. This was decided in Hollingsworth vs. McDonald, 2 H. & J., 236, in relation to an acknowledgment under the' act of 1715, ch. 47, where the form is prescribed. 7 G. & J., 260, Young vs. State.

The certificate of the clerks to this deed is sufficient under the act of 1766, ch. 14. The words^ “were at the time of so-doing,” relate as well to the acknowledgment by the parties, as to the signing of the certificate. In contemplation of law they are but one act. The acknowledgment in 2 H. & J., 380, referred to on the part of the appellant, is more specially drawn; but the certificates before us are in accordance with a form which has been in use for many years, and should not be questioned by this court. 1 Ev. Har., 22.

We approve of the court’s refusal to admit the agreement offered in the second exception. It is not understood to have been tendered for the purpose of showing title in the defendant, or in any other person. For that object it was clearly inadmissible. But it is insisted that it ought to have been received, because it showed, with other evidence thereafter to have been offered, that the defendant occupied such a position in relation to the land in controversy, as entitled him to notice and demand before the commencement of the suit. This-position cannot be maintained. The identity of the land is-by no means apparent. No person, looking at this agreement alone, can say that the lands are the same, and the defendant did not accompany his offer by a proposal to adduce evidence' of identity. It is said that there was prima facie evidence on this point; but this conclusion depended upon inferences which the court could not have been expected to draw from the evidence then in the cause, as preliminary to receiving the agreement. The circumstances that the lands mentioned in the agreement were in Howard county, and contained one hundred and ninety-six acres, more or less; that the declaration claims two hundred and three acres in the same county; and that the deed to the plaintiffs conveys one hundred and ninety acres in that county, without any other fact to show that the lands are the same, were not sufficient to' allow the reception of this paper to defeat the claim of the present plaintiffs, who are not the parties with whom the' agreement was made, but purchasers without notice of an equity in Shaffer, or in' any person claiming under him.Whatever ground of defence, for want of demand before suit, this- agreement might have- furnished as against Evan D. Hammond, in an- action for the same lands, it is very certain that his grantees, without notice, cannot be affected by any suck proof. It is true that a party may, generally,- offer hi& evidence in the order preferred by himself, (9 Gill & Johns., 476,) but the testimony, as proposed, must appear to be pertinent to the matter in controversy, or be accompanied by an offer to show its relevancy in the progress of the cause. 6 G. & J., 481, Goodhand vs. Benton. 5 Md. Rep., 433, Stewart vs. Spedden. Moreover, there is no evidence or offer to prove' Chat Shaffer, or any person claiming under him, had entered upon the premises under this agreement, and therefore the «ases relied upon do not apply.

The ruling of the court in the third exception is not objectionable. The plaintiffs offered proof, that Hammond, under "whom they claimed, had held the lands by possession since 1811, by renting to a person, in consideration that the tenant would enclose them, and that part had been enclosed: the plaintiffs stating at the time, that they relied on title by patent and by possession for more than twenty years. The defendant then offered to prove, “that the lands had never been enclosed for more than twenty years at one time,” in order to lebut the title of the plaintiffs so far as it relied on possession. This evidence the court excluded. The question was, whether the lands had been possessed for twenty years, not whether they had been held by enclosures for that time. Whatever the law was before the act of 1852, ch. ITT, sec. 2, it is certain, that since its passage it is not necessary to prove possession by enclosures. It was, therefore, immaterial to the issue, whether ¡the plaintiffs, or those under whom they claimed, had held the land under fences or not. They offered proof of possession for more than twenty years; the defendant offered no such evidence in his behalf. The act was gratified by the plaintiffs’ proof, and their right to rely on such possession could not be affected by the inquiry, whether it was by inclosure or not. If, as was said, this evidence on the part of the plaintiffs was also immaterial, it was no reason for admitting similar testimony on the other side. 4 Md. Rep., 255. 5 Md. Rep., 385. 6 Gill & Johns., 481. It was not admissible for the purpose for which it was offered, and was therefore properly rejected. 3 G. & J., 435, Sothoron vs. Weems.

In disposing of the fourth exception, we need not determine what would have been the effect of the purchase at the sheriff’s sale, upon the title of James G. Hardy, if he were claiming the land. The point now presented seeks to convert the fictions in the action of ejectment into realities, and thereby defeat the very object for which they were introduced. The lease in this case is a fictitious proceeding, as in any other action of ejectment. The lessors are the real plaintiffs. Even if James G. Hardy, named as lessee, be a natural person, he is not to be considered as really interested in the result. By the terms on ' which the tenant is allowed to come in and defend the suit, the claimant becomes the actual plaintiff; and as these proceedings are fictions, necessary to this form of action, they must not be allowed to prejudice the parties. Cresap vs. Hutson, 9 Gill, 274.

The fifth exception sets out the plaintiffs’ title, composed of a patent, deeds, wills and parol proof. It appears that Eden Hammond, under whom the plaintiffs claim, came into possession of the land described in the declaration about the year 1811, and remained in possession until his death, in 1834, and that some of the fields were fenced by one of his tenants, in consideration of his tenancy. The defendant then proposed to inquire of one of the witnesses, “whether, to his personal knowledge, Eden Hammond possessed the lands, by enclosure, peaceably, uninterrupted and exclusively for twenty years at one time,” but the court refused to allow the question to be put. We think that this point depends, in a great degree, on the doctrine announced under the third exception, As the plaintiffs had offered proof of possession of the land as claimed in the declaration, which explicitly states the extent of their demand, it was immaterial whether the possession was by enclosure or not. If there had been none at any time, the possession might have been such as to gratify the requirements of the act of 1852, ch. 177.

The first prayer in the sixth exception was properly refused, upon the principle decided in Cresap vs. Hutson, 9 Gill, 277.

The second prayer, by confining the plaintiffs to proof of title under a patent, or by possession for more than twenty years by those under whom they claim, overlooks the evidence of title, “otherwise good,” furnished by the deeds, wills and parol proof offered on the part of the plaintiffs, which, as we think, brought the case within the second section of the act of 1852, ch. 177.

The third prayer presented no point or question for the consideration of the court. To ask the court to instruct the jury, Rial “upon the whole evidence it is competent for them to find for the defendant,” is substantially affirming, that if they believe the testimony they ought so to find, which is the same, in principle, as the case of Cook vs. Duvall, 9 Gill, 460. It is unnecessary to express any opinion on the last clause of the prayer, “that the jury were not. bound to find for the plaintiffs,” because if the first proposition was wrong, it was not error to reject the whole. This prayer is different from that cited from Stewart vs. Spedden, 5 Md. Rep., 444, which was sustained because of a total failure of evidence on a material part of the plaintiff’s case, without proof of which he could not have recovered at all. The case of Leopard vs. Canal Co., 1 Gill, 228, is an authority against, the allowance of general prayers, and does not support the present exception. See, also, Hatton vs. McClish, Ante, 407, in which the act of 1825, ch. 117, and the decisions upon it, are referred to.

Concurring with the circuit court on all the exceptions, the judgment is affirmed.

Judgment affirmed.