Clara Medley v. Williams , 7 G. & J. 61 ( 1835 )

Chambers Judge,

delivered the opinion of the court.

The first opinion which the exception in this case presents for revision, is, that evidence of general reputation is admissible, to prove that the dwelling plantation of James Williams, consisted of the three tracts of land mentioned in the declaration.

We think the court erred in permitting the testimony to go to the jury.

Evidence of general reputation is inadmissible except in enumerated cases, in which necessity, or very strong claims on the score of convenience, require its production, and the instances are avowedly exceptions to the general rule. To entitle a party to such evidence, he must shew that his case constitutes an exception, according to an acknowledged rule of law, or some judicial decision, at least, that it is entirely within the reason, and spirit of an acknowledged exception. We do not think that has been, or can he done in the present case. When the proof by reputation is admitted at all, it is to supply information in cases, where more certain and positive evidence is not likely to exist. But in a case like the present, there must always be better evidence in the power of the party.

If the “ dwelling plantation” does consist of the tracts of land named, the safe and practicable mode is to locate the several tracts, and to locate the dwelling plantation, and it will be manifest whether they are the same.

The next opinion to which exception was taken, makes it our duty to decide, whether the. two patents, one for the tract, said in the exception to be called “Pocomick Point” and the other “The Pasture Ground” were properly admitted to go to the jury, and,we think there is error also in the opinion of the court below upon this point.

Plots are part of the pleadings, made to elucidate conflicting locations, and by which parties are notified of the precise grounds of adversary claims, are enabled to resist them. They require as much precision .and certainty as other pleadings, and this court has decided, that no title paper not located shall be offered in evidence, upon the well established principle of correspondence, between the allegation, and the proof. Hughes vs. Howard, 3 H. and J. 13. Mundell vs. Perry, 2 G. and J. 193. When the plaintiff offered the patent for 1250 acres, and that- for “ Pasture Ground,” was there any location .with which either of them corresponded? We think not.

The appellee’s counsel doubted to what purpose the patent for the 1250 acres was offered, and suggested that it was useless, and therefore productive of no injury, of which the appellant could complain. If the court below did admit the paper as evidence when it could have no relation to the issue, it erred in doing so. But we think the patent must have been intended to shew, that the State had granted the land claimed as “Roberts Freehold.” The patent is a very peculiar one. It grants to John Medley sundry parcels of land, of which some are said to be thereby originally granted to himself — others are recited to have been theretofore granted to other persons, and assigned to him-^some of the parcels by one name, some by another, and others without name, apparently in detached positions, and no name is given to the whole. '

In the number of parcels included in this patent, is one called, “Roberts Meek,” said to be laid out for one hundred acres. Unless the plaintiff intended to rely on this patent, to shew that the land therein called “Roberts Meek” is the land called in the declaration “ Roberts Freehold,” and thus to prove that the State had parted with its title, there is not a shadow of evidence to prove a grant from the State, for a large part of the plaintiffs claim.

The necessity of furnishing such proof appears to have induced, the production of these two patents. Whether the State has passed its title to the lands in controversy, is always a fact to be ascertained in ejectment, either by admission, or by proof There is no pretence of admission in this case» The mode of proving it, is by producing, first a grant, and next evidence that the land claimed is within the lines of the grant. The production of the grant proves that the State has parted with the land therein granted, but it leaves entirely unascertained, the other equally important fact, that the land granted, is the identical land claimed.

To allow the surveyor’s certificate to establish the fact, would be in effect to dispense with proof, for the warrant of resurvey, which is the surveyor’s authority, requires him to make such locations as the plaintiff, or defendant may direct, and his certificate is but the allegation of the party. The rule requiring the plaintiff, to shew the grant of the Slate, does not impose the duty as an idle ceremony, the proof must be legally sufficient to establish the fact. It is difficult to conceive how it would be possible to prove by corresponding testimony, tbe correct position of each one of the three several tracts composing the dwelling plantation, when in regard to two of them, neither tbe beginning boundary, nor a single line is located.

Tbe appellee’s counsel however contend that they do not claim the three tracts, eo nomine, but they claim the “ dwelling plantation” of James Williams.

If this were so, it would not relieve the plaintiff below, from the necessity of locating them for the reasons just mentioned»

But we think the counsel mistaken in point of fact. The language of the declaration we think asserts a claim to the three tracts, and the expressions, “ being the dwelling plantation,” &c. are but additional description, and did not impose upon the plaintiff below, the necessity of proving, that they did in fact compose the dwelling plantation of Williams, if he could otherwise have proved a good title to them.

But again, the plaintiff lays down his claim and pretensions for the “ entire tract,” as the surveyor calls the three tracts in union, the lines of which extend beyond the “ dwelling plantation,” and the verdict has been given for this excess, as well as the other part of the land, all which is certainly irreconcileable with the hypothesis of the appellee’s counsel.

' The application to the court below on which the next opinion was expressed, was undoubtedly intended to raise the question, whether under the circumstances stated, the lessors of the plaintiffs were the heirs at law of Mary Jane Williams.

As the question has been elaborately argued, and the appellants counsel has urged its decision, as conclusive of the principal point, upon which the defence to this action rests, we will not stop to enquire, whether by the strict construction of the act of 1825, ch. 117, we might not avoid it.

The devise gives no interest in the land to M. J. Williams, which she would not have taken without it, nor is it given in any different mode. After other devises and bequests, Joseph Williams gives the rest and residue of his estate, real and personal, to her and her heirs for ever. The land in controversy was part of this residue. M. J. Williams had therefore the same interest precisely, and to be held, and enjoyed in the same manner, as if those previous devises and bequests, having been made, the will of her father had been silent as to the land devised by the residuary clause. In other words as if he had died intestate as to this land. It is a case then in which the same quantity and quality of estate is devised, as the devisee would have acquired by descent, and in such a case, it is a clear rule of the common law, that the title shall vest by the worthier title — by descent, and not by devise.

It is a familiar rule of construction that words in a statute shall be taken in their accepted, and known sense. The objects of the framers of our act was to alter and regulate the common law rule of descent, and the whole subject was before them.

It would seem difficult therefore to assign a reason why in using a well known term, without qualifying it, they are to be understood as designing to abridge its known import, especially when by attributing to it, the proper and legal signification it had acquired, we do not at all conflict with any purpose they had in view. Why then deny to the words in the statute, the same latitude which they have in common law acceptation — that is to say, why shall they not be descriptive of the case at bar, and include it, as within both the letter, and spirit of the act ?

But it is said the act speaks of an intestacy, as implied in every case of descent. It may well do so. A will that does not operate, is as no will. A will may operate in part, and in part be inoperative.

In the case before us, if James Williams, had omitted the clause in his will, by which the residue of his estate is given to his daughter, retaining all the other dispositions now found in it, he would clearly have been intestate as to the land now claimed. As by the rules of law, that clause does not pass the land to the devisee, but leaves it to descend to his only child, the will is so far inoperative, and a case of partial intestacy therefore exists. We are consequently of opinion that there is no error in the decision attributed to the court below on this point.

It has been urged that these principles of the common law have not been introduced into Maryland, and are contrary to the policy of our system.

We are of opinion that they are not only applicable to our system, but have been recognized and applied. The case in 1 II. §• J. 478, Philips vs. Dashiel's Lessee was ruled on this ground, in the late General court, and this court adopted the same doctrine in the late case of Purnell's Lessee vs. Rider, decided on the Eastern Shore.

The next and last opinion to which the defendant excepted arises upon a very singular statement.

It may well be doubted whether the words affirm any proposition, to which the witness was called to testify. The assertion that the “ plaintiff gave in evidence by the witness,” is immediately followed by another assertion, that he was sworn on the survey to point out a boundaiy, and then follows a recital of the fact that his information was derived from James and Joseph Williams, the last of whom, it is said was the father of M. J. Williams, under whom it is alleged the plaintiffs lessors, or defendant-claim title. But to what fact the witness was interrogated, or what he was offered to prove, and of course, to what evidence the defendant objected the exception does not inform us.

The argument has assumed the decision of the court to be, that the declarations of Joseph and James Williams as to the true location of their dwelling plantation might be given in evidence by the witness, and the appellee’s counsel have endeavoured to sustain the decision, upon the ground that the defendant claimed under Joseph and James Williams, and was bound by their declarations.

It is not necessary to express an opinion as to the extent to which the defendant would be bound, if the record did expressly allege, that while objecting to the evidence of their declarations, the defendant at the same time relied on a title declared by her to .be derived from Joseph and James Williams. This record does not make such an allegation.

The plaintiff in ejectment must recover on the strength of his own title, and except in cases of estoppel, such as ejectments on a mortgage, and like cases, the defendant has no need to claim title. It is not suggested that there is any thing in this cloudy exception, to deprive the defendant of the full benefit of this doctrine, except the expressions, “ under whom the lessors of the plaintiff, or the defendant claim.” But it is entirely clear that the person referred to as the party, i£ under whom the plaintiffs lessor, or the defendant claims,” is Mary Jane Williams, and not Joseph or James Williams.

Therefore without adverting to the effect which might arise from using the disjunctive, instead of the conjunctive particle, we can only say, that if the court below, did admit the witness to give evidence of the declarations of James and Joseph Williams, as to the location of their lands, they committed an error in so doing.

JUDGMENT REVERSED AND PROCEDENDO AWARDED.