Bennet Clement's Lessee v. Ruckle

| Md. | Dec 15, 1850

Magruder, J.,

delivered the opinion of this court.

The plaintiff brought an action of ejectment in Allegany county court, for a tract of land called Lorrain, and the verdict being against him, he appealed. In the course of the trial he look two bills of exceptions, and whether the court erred in the opinion expressed by it, according to either of those exceptions, we are now to decide.

The plaintiff, to make title to the land claimed by him in his declaration, offered in evidence a patent for that tract of land, granted to himself, and bearing date 16th day of August, 1843. Why he offered in evidence the certificates of the register of the land office, we do not understand. These papers, however, though unnecessary, could not prejudice his title. His patent is an escheat grant, which Is prima facie evidence of title. Hall vs. Gittings, 2 H. & J., 112. The defendant thereupon, to show title, it would seem, out of the plaintiff, offered to examine a witness, and by him prove the contents of letters written to, and received from, Bennet Clements. But the witness never saw his correspondent, and, of course, had never seen him write, nor could he tell whether the plaintiff in this action was his correspondent.

What was the correspondence to prove? A title to the land in controversy, to be out of the plaintiff. How? Witness inquired of his correspondent if he could not make a title independent of the escheat grant, deriving it from the heirs of Henry Clements. In the answer, he is informed, that the heirs of Henry Clements could not make a title to the land. The writer gave a reason, but the witness does not recollect what it was. It might have been, that those who were his heirs elsewhere were aliens in Maryland, and could not inherit the land; or it might have been that the land had been convey- ■ ed in fee, to some other person, upon whose death the land had escheated. Even if the correspondent of the witness had been admitted to be the plaintiff, it is difficult to deduce from the correspondence the fact that it was offered to establish, to wit; that the title was in the heirs of Henry Clements. If it had been, it is difficult to prove why they could not make a title, unless they were minors, lunatics, &c.; and this it cannot be presumed was the reason assigned.

In addition to this, the proof of the loss of the paper was not sufficient to authorize the court to let in parol proof of its contents.

There is one other objection to all this proof offered by the defendant. The plaintiff claims a tract of land, the patent name of which is Lorrain, and claims it by that name. The defendant, it would seem, claims no land eo nomine, or by any other name which Lorrain may have acquired by reputation. His defence is, that the patent for Lorrain could give the plaintiff no title, forasmuch as the State had previously to the grant, parted with the title to the land, or part of the land included in the grant. It is to be inferred from all that we read in the record, that the tract of land, claimed by, and patented to the plaintiff, consisted wholly, or in part, of what are called soldiers’ lots; that some of these soldiers’ lots were originally owned'by Henry Clements, spoken of by the witness; but we do not collect, from any part of this record, that the lots of Henry Clements, if located, would comprehend all the land which was granted to the plaintiff, as before stated. Indeed, when the defendant took his defence, (not upon warrant, but upon title,) he states, that he takes it for certain lots, (giving the numbers of them,) “ the same being part of a tract of land called Lorrain-” but what part of it, whether the east, south, north or west, it is not stated, though it is said the lots “lie west of Fort Cumberland,.” Certainly if any such defence be made, the proper defence is upon warrant. The plaintiff’s land must be located, the lots for which defence is taken, must also be located, in-order to ascertain for what land the plaintiff is to get judgment against the casual ejector, (a judgment which must always be entered before the jury are sworn, unless the- defendant takes defence for all the land claimed,), and how much of the plaintiff’s claim and pretensions is in controversy, and to be settled by the jury. For the want of these locations the matters in issue are as unintelligible as they would be, if when the defendant takes defence upon warrant, the locations of the parties were made and returned upon separate sheets of paper.

The testimony of Mr. Ridgely was inadmissible.

It may be added, that the testimony of Taylor could not benefit the defendant.

Of course, the court erred in refusing to grant the first instruction stated in the second bill of exceptions. With respect to the last prayer mentioned in the second exception, to have been made by the defendant, the objection to it is, that the court is .asked to say, that the plaintiff is entitled to recover, unless the .defendant proves title in a stranger. To be sure defendant did not even attempt to prove title in himself, but there was no more proof of title in a stranger than in himself. The plaintiff’s patent (there being no legal proof that any part of the land granted to him had not escheated) entitled him to a verdict.

JUGDMENT REVERSED WITH COSTS, AND PROCEDENDO AWARDED.