Davis v. Patton , 19 Md. 120 ( 1862 )

Goldsborough, J.,

delivered the ojiinion of this Court:

William II. Cheizum, late of Talbot county, died in the year 1843, intestate, leaving, besides other personal property, certain negro slaves, to be distributed amongst his mother, brothers and sisters, who were his legal representatives.

Sarah B. Davis, one of the appellants, and one of the sisters of the deceased, had, prior to her brother’s death, intermarried with John Bowens.

In the final distribution of the negroes, negro Caroline Chase was allotted to John Bowens, husband of Sarah B. Bowens, he paying to the mother of the deceased fifty dollars. This allotment was made by the commissioners on the'24th of November 1843, and on the 12th of January 1844, this division <£was passed by the Orphans’ Court” of Talbot county.

John Bowens, the husband of Sarah B. Bowens, having paid the amount required in the allotment, he and his wife took possession of negro Caroline, and afterwards sold and delivered her to the appellee, and after the sale and delivery, the negroes in controversy (who, it is conceded, are the children of Caroline) were born.

John Eowens subsequently died, his wife surviving him, who thereafter intermarried with William W. Davis, the appellant. Davis and wife instituted this action of replevin against the appellee, to recover the negroes in controversy.

The verdict of the jury and judgment of the Court being for the defendant, the case is presented for our consideration upon exceptions to the ruling of the Court below, granting the prayer of the defendant, and rejecting those of the plaintiffs, and also rejecting the application contained in plaintiffs’ last exception.

After the evidence mentioned in the record had been submitted to the jury, the plaintiffs offered two prayers, which, not being objected to, the Court gave.

The substance of the first prayer is, that if the jury believe that negro Caroline was assigned to Sarah B. Davis, in the distribution of William H. Cheizum’s estate, and that John Eowens, her husband, made a verbal contract of sale of Caroline, and that no bill of sale was made to defendant for Caroline, then no title passed to the defendant by said contract.

The second prayer was, in substance, that if the jury believe that Caroline was distributed to Sarah B. Davis, and that Caroline is the mother of the negroes in controversy, and that no disposition of Caroline was made during the lifetime of John Eowens, other than a parol agreement to sell her, then the title to Caroline survived to Mrs. Davis, and the children of Caroline became her property.

Though these prayers are not before us for adjudication upon the law embraced in them, we deem it proper to allude to them, as they will be considered in connection with the plaintiffs’ exceptions.

After tlie above prayers were granted, together with the defendant’s prayer, and the plaintiffs’ three other prayers were acted upon by the Court, and exceptions taken to its rulings upon the evidence then before the jury, the plaintiffs applied to the Court to withdraw the evidence of John B. Rowens, under the circumstances detailed in the plaintiffs’ last exception. This application the Court refused, and, wo think, correctly; because the application came too late. When evidence has been received without objection, and prayers predicated upon it have been granted by the Court, it is too late to ask the Coiut to reject it. See 5 Gill, 127, and 8 G. & J., 213.

In this case, it appears from the bill of exceptions that some objection was made to the evidence when offered; but it was not insisted on, and no exception was taken at the time to the action of the Court in admitting it. This must be construed as a waiver of the objection, and the question before us stands as if no objection had been made.

We are also of opinion that there is no error in the ruling of the Court in granting the defendant’s prayer. For although the legal effect of the distribution made by the Orphans’ Court, was to vest the title to Caroline in Mrs. Rowens, which could not be divested except bjr a deed, (executed'by herself and husband,) as provided by the Act of 1842, yet parol evidence having been admitted without exception, of a “sale and delivery by Rowens and wife to the defendant,” it was. competent for the jury to pass upon it. See 8 Gill, 120; 7 Md. Rep., 76.

In the opinion of this Court, there was error in refusing to grant the prayers of the plaintiffs below, contained, in their second exception.

They involve the question of the legal construction and effect of the distribution made by the Orphans’ Court. As we have before said, that allotment inured to the benefit of Mrs. Rowens. She was the distributee in whose right the allotment was made. It was not in tho^powor of the Orphans’ Court to deprive her of the property; and their act must he interpreted to have effect according to the requirements of the law.

(Decided December 3rd, 1862.)

The allotment, in terms, was made to “John Rowens, who intermarried with Sally B. Cheizum, the sister of the deceased.” This plainly designates the right in which the allotment was made, and, in legal intendment and effect, passed the title to Mrs. Rowens; giving to her husband only such interest as is provided for "by the fourth section of the Act of 1812, ch. 293. The plaintiffs were entitled to have the instruction of the Court to the jury, as to the legal effect of the proceedings of the Orphans’ Court, which was correctly stated in his prayers, and the Circuit Court erred in refusing* them.

It was urged, in the argument of this cause, that the judgment ought not to be reversed on account of the refusal of the Court to grant these prayers of the plaintiffs below, because it is said the prayers of the plaintiffs, which were before granted without objection, contained substantially the same propositions. We do not think so. By a comparison of the several prayers granted and refused, it will be apparent that they are not the same. The former were based upon the hypothesis of a distribution of the property to Mrs. Rowens, as a matter of fact; whereas the plaintiffs were entitled to have the Court’s instruction to the jury, as to the legal effect of the distribution as actually made.

Judgment reversed and procedendo ordered.