Dennis' Lessee v. Kelso , 28 Md. 333 ( 1868 )

Stewart, J.,

delivered the opinion of this Court.

A majority of the Judges who sat in this case, are of opinion that the motion to dismiss the appeal must be overruled, on the authority of the decisions of the Court, in the cases of Green vs. Hamilton, 16 Md. Rep., 317; Graff & Gambrill vs. Merchants and Miners’ Transportation Company, 18 Md. Rep., 364, and Henderson & Ross vs. Gibson, Garn. of Johnson, 19 Md. Rep., 234.

Upon the merits, the order appealed from is correct. The action of ejectment, being a proceeding founded in fiction, to enable a party to recover the possession of land, has been fashioned by the Courts to subserve the ends of justice, and an application to strike out a judgment against the casual ejector, will be more readily granted, in such action, than in other eases. The oidy difficulty has been to reconcile such practice with interests that may have supervened. The authorities, in such cases, show that after a judgment against the casual ejector, has stood for years, and there has been laches on the part of the defendant, or improvements by the plaintiff, Courts will not disturb it. In Klinefelter’s Lessee vs. Carey, 3 G. & J., 349, sundry references are made, where judgments have been stricken out in ejectment suits, although from the circumstances of that case, the judgment was not disturbed, because it had stood a long time, — some nine years. The facts in this case show that the plaintiff had taken no steps to secure the benefit of his judgment for nearly three years, but allowed the possession to remain undisturbed, and the application was made promptly by the appellee upon execution of the writ of habere facias, which he swears gave him the first notice he had of the judgment, and we do not think he has lost title to relief by delay. Whilst Courts of justice will aid, to every reasonable extent, vigilant suitors, they will not encourage laches — vigilantibus et non dormientibus leges subveniunt. The testimony in the cause does not prove that sufficient notice was given to conclude the appellee, from the relief he is now seeking. Assuming that neither Kelso nor Kidd, the tenant in possession of part of the premises under him, had actual notice of this proceeding, we are not aware of any inflexible rule of law, which will under the circumstances, hold him irrevocably bound by the judgment rendered against the casual ejector, especially when he has taken the earliest steps to avoid its effect after actual notice thereof. No improvements having been made on the premises, the possession not disturbed, no injury done to the plaintiff, the only effect of the action of the Court below has been to place the litigants in statu quo, by a re-instatement of the case, ordering the continuances and enabling the parties to have a trial upon consideration of their respective claims.

(Decided 28th February, 1868.)

Order affirmed.