| Md. | Nov 27, 1861
delivered tire opinion of this court J
At the trial of this cause, the defendant—the present appellee—offered in evidence a deed from Riddle and others to himself, prior in date to that under which the plaintiff claimed the land in dispute, but not recorded within six months, and, to bring his defence within the Act of 1831, ch. 304, he offered to show that when Bryan purchased his part of “Rlysiansylvania,,y he knew that Harvey had purchased “Elk Garden,” but there is no evidence that he had any knowledge of a conflict between the lines of the two tracts; and he also offered proof that he had sold portions of “Elk Garden, ” and that his grantees had taken immediate possession of the lands covered by their respective deeds—all these deeds and acts of possession being prior to the deed from Riddle and others to Bryan. The plaintiff objected to these items of proof, and also to the deed from Riddle to Harvey, which objection tire court overruled. This constitutes the first exception.
As a general rule a deed to be evidence must be recorded within the time limited by law. But the Act of 1S31, ch. 304, makes provision for giving effect to deeds not so recorded, as against purchasers with notice, or where possession has been taken under the first conveyance. In these cases the admissibility of the deed must depend on the sufficiency of the evidence relied on to gratify the requirements of the Act of Assembly. The Act does not specify what shall be proof of no
The deeds to Abernathy, and Arnold and Potter, expressly convey parts of “Elk Garden,” by reference to the deed to Harvey, for the whole tract, by name and number of acres, accord-* ing to the patent, and by the date and record of his deed. These deeds having been executed and recorded would have been notice to Bryan of the title of the grantees, if the suit had been against them, or either of them, and we think them equally admissible in connection' with White’s testimony to prove notice to Bryan o.f Harvey’s deed. Suppose it had been proved that the plaintiff was informed by a witness, testifying to the fact, that Harvey had a deed for this land, can it be doubted that the Act of Assembly would have been complied with? Here the deeds to Abernathy and Arnold make special reference to the deed to Harvey, as having conveyed the whole of “Elk Garden” to him. The circumstance, that the conflict between the tracts was unknown to the parties, can make no difference in the application of the principle. “Elk Garden,” and also the land conveyed to the plaintiff, belonged to the common grantors of these parlies, at the date of the first deed, and it was the plaintiff’s own fault to have taken a subsequent deed for land covered, in part, by the “Elk Garden” patent, without having had the lines of “Elk Garden” laid down so as to have known how much o£“Elysiansylvania” was clearof the elder tract. Disputes often arise out. of conflict between the lines of different tracts, but it was never held, as far as we are
In connection with those two deeds, the testimony of Mason was also properly admitted as evidence of possession of so much as the grantees had purchased. The Act declares that possession by the grantees, their heirs, executors and administrators, shall give effect to the deed, and we consider possession by a grantee of the grantee as fully within the spirit and meaning of the Act as if such grantees were named. The law intended to substitute notice or possession for the constructive notice furnished by placing the deed on record. The acts of possession here proved, related to parts of the whole tract, and tended to establish such a possession by parties having title under the first deed, as would let in that deed, if that possession was proved to extend to the land in controversy, or formed an item of proof, from which, and the other evidence, the jury could find possession by the defendant himself.
But these considerations do not apply to the deed to Frazier, which conveys part of a tract or parcel of land designated as Howard’s improvement on the Elk Garden tract. This may be a different tract from “Elk Garden,” and not appearing, by any reference in the. deed, to have any connection with the title of these parties to the land in controversy, ought to have been rejected. It did not tend to prove notice to Bryan of Harvey’s title to “Elk Garden,” nor possession of any part thereof by Harvey, or his grantee, Frazier.
The admissibility of Harvey’s deed depends upon the sufficiency of all the proof in the cause, to establish notice or possession. White’s testimony is not objected to; and we think that it and the other evidence deemed by us to be admissible, was legally sufficient to authorize the jury to find, that Bryan had notice of Harvey’s purchase and title, to Jet in his deed as a defence to the action.
The question presented by the second prayer—the first having been granted by consent—relates to the title of the defendant under his deed from Riddle and others. The grantors
There is no question presented by the record, as to the supposed defect, for want of seals, in the plaintiff's deed, and we cannot express any opinion on the point made at the bar. As the judgment must be reversed on the ruling as to the deed to Frazier, the plaintiff can apply for a procedendo or not, as he may be advised, upon ascertaining the facts as to his own title.
Judgment reversed.