Nutwell v. Tongue's Lessee , 22 Md. 419 ( 1864 )

Bartol, J.,

delivered the opinion of this Court.

This cause was before this Court on two former occasions, each time on the appeal of the lessor of the plaintiff, and will be found reported in 13 Md. Rep., 416, and 11 Md. Rep., 212.

When the case was remanded to the Circuit Court, after the last appeal, the defendant took defence on warrant, a warrant of resurvey was issued, and locations made by both parties and returned to the Court.

In the progress of the trial four exceptions were taken by the appellant: the first three presenting questions of evidence, and the fourth the questions raised by the prayers.

First Exception. The specific purposes for which the testimony of John F. Wilson was offered, were stated by the plaintiff, and if admissible for any of the purposes stated, the general objection to its admissibility was properly overruled, this point was decided in Pegg vs. Warford, 7 Md. Rep., 606, 607, and Carroll vs. Ridgaway, 8 Md. Rep., 335. In our opinion the evidence tendered was admissible to show that Eleanor Stephenson entered upon the premises in controversy as devisee of her father Benjamin Harrison, and thus to negative the theory that her holding was adverse to the plaintiff’s title.

Second Exception. The question presented by this exception was decided on the former appeal, 17 Md. Rep., 212. Under the principles then settled, which must govern the case in its subsequent progress, the evidence stated in this bill of exceptions, offered for the purpose of estopping the lessor of the plaintiff was inadmissible for that pui’pose, and there was no error in rejecting it.

Third Exception. This exception was taken to the refusal of the Circuit .Court to permit the defendant to read to the jury the deed from the plaintiff’s lessor to William H. Hall, dated the 16th of April 1858, for the purpose of showing that Anne Tongue (the plaintiff’s lessor) was estopped from denying that the parcel of land lying north of the fifth line of the plaintiff’s second location, was the land of William E. Stewart at the date of the deed. This estoppel is supposed to arise from the description in the deed of the parcel thereby conveyed “as running to a corner of William F. Stewart’s land, then with the lines of said Stewart.” Neither the defendant nor any one under whom he claims, was a party to the deed, and he cannot therefore claim the benefit of any recital it may contain by way of estoppel; whatever effect such a recital may have between the parties, they aré not binding upon them in a controversj with a stranger. This point was decided in Alexander vs. Walter, 8 Gill, 240, and Cecil vs. Negro Rose, 17 Md. Rep., 92; see also Casey’s Lessee vs. Inloes, 1 Gill, 494.

The Fourth Exception presents for our consideration the several prayers offered by the parties and contained in this bill of exceptions. The first and second prayers of the plaintiff assert: First, that by the true construction of the will of Benjamin Harrison, the lessor of the plaintiff, was entitled as residuary devisee to all the lands of Benjamin Harrison, not devised to John Harrison in trust for Eleanor Stephenson; and secondly, that under the will of Benjamin Harrison, Eleanor Stephenson was entitled only to a life estate in the land devised to her, and that upon her death without issue, under the evidence and admissions in the cause, a moiety of the lands so devised descended to the lessor of the plaintiff as one of the heirs at law of Benjamin Harrison. These prayers were conceded by the defendant, and the propositions they contain go very far towards concluding the case. It being shown that the lands in controversy form a part of the dwelling plantation of Benjamin Harrison, it is not material for the plaintiff to prove that the survey made by Wilson was strictly in conformity with the provisions of the will, or that under the circumstances under which it was made, it would have concluded Eleanor Stephenson in her lifetime, as a valid and binding partition under the will. If as stated in the plaintiff’s third prayer the jury should find that the land so surveyed was laid off as, and for the 141 acres devised to John Harrison in trust, and that it was accepted and enjoyed by Eleanor Stephenson during her lifetime, as and for, or in lieu of her share in the dwelling plantation, and should further find that the same is correctly located on the plats, — it must follow from these facts, and under the concession of the second prayer, that the plaintiff is entitled to recover a moiety of the same; and the third prayer of the plaintiff was therefore properly granted. The verdict of the jury being in accordance with this instruction for a moiety of the lands described in the declaration, it is unnecesary to consider the fourth and fifth prayers of the plaintiff, by which the jury was instructed upon certain hypotheses, that the lessor of the plaintiff was entitled to recover the entirety of a part, or the whole land in dispute.

In our opinion there was no error in granting the sixth prayer of the plaintiff; under the facts therein stated, the possession of Mrs. Stephenson was not adversary to the title of the lessor of the plaintiff: she held under and in privity with the estate of Benjamin Harrison, under whom the lessor of the plaintiff claims, and the time which elapsed after her death in 1839, to the institution of this suit in 1855, was not sufficient to bar the right of the plaintiff to recover, even if the possession had been adversary during that time.

We shall now briefly consider the defendant’s prayers.

From what has been said it follows that the defendant’s first, second and fourth prayers were properly rejected; these prayers are based on the supposition that the plaintiff's right to recover depends upon the survey of Wilson being in strict conformity with the devise in the will. This is an error: the lessor of the plaintiff does not claim under that devise. By the conceded law of the case she is entitled as residuary legatee to all the dwelling plantation not included in the devise to Mrs. Stephenson, and as heir at law, to one-half of whatever land Mrs. Stephenson took under the devise. It being established that the land in controversy is part of the dwelling plantation, and parcel of the 147 acres devised to Mrs. Stephenson for life, — it is clear she is entitled to recover one moiety of it, even though there may never have been a valid partition thereof under the provisions of the will. 3rd. And for the same reason there was no error in refusing the defendant’s third prayer. 5th. There is no evidence in the cause from which the jury could presume any such agreement, as is stated in the fifth prayer, and it was therefore properly rejected 6th, 8th, 9th. The views we have expressed in deciding upon the sixth prayer of the plaintiff are a sufficient answer to the 6th, 8th and 9th prayers of the defendant. They claim to defeat the action on the ground of adversary possession in the defendant and the parties under whom he claims.

(Decided November 25th 1864 )

7th, 10th. These prayers, supposing the plaintiff to be entitled to recover, claim, that inasmuch as the lessor of the plaintiff or persons holding under her hold a part of the 147 acres devised in trust to Mrs. Stephenson, the defendant is entitled to have the part so held, discounted or deducted from the moiety claimed by the plaintiff in this action. No authority has been cited in support of these prayers, and we know of no precedent to warrant the application of the doctrine of offset to an action of ejectment. Being of opinion that there is no error in the rulings of the Circuit Court, the judgment will be affirmed.

tñidgment affirmed.