41 Md. 81 | Md. | 1874
Lead Opinion
delivered the opinion of the Court.
This is an action of ejectment for a lot of ground in the city of Baltimore, instituted by the appellee against the appellants, on 'the 31st of October, 1873, under the 2nd section of the Act of 1872, ch. 346, a re-enactment in substance of the 2nd section of 4 Geo. 2., ch. 28, which, up to that time had been in force in this State. Alex. British Statutes, 704.
The plaintiff’s case is this: He offered in evidence a lease of the lot in question from Lyde Goodwin to John Shroud, dated the 1st of May, 1801, for ninety-nine years, renewable forever, reserving the yearly rent of $14. He then proved the grant on the 17th of January, 1818, of administration upon the estate of Shroud to Jacob Sleeper, the ancestor of the defendants, and under whom they claim, and then offered in evidence a conveyance of the leasehold interest from Sleeper, as administrator of Shroud to one Henry Peters, dated the 22nd of January, 1818, for the consideration of $100, and a re-conveyance of the same by Peters to Sleeper on the next day, January 23rd, 1818, for the same consideration. Both of these conveyances, the assignment to Peters and the re-assignment to Sleeper, recite the original lease from Goodwin to Shroud, and were both recorded on the same day, January 23rd, 1818. fie then offered in evidence the will of Sleeper, executed on the 7th of August, 1818, by which he devised all his estate to his wife, (whom he also appointed his executrix,) for life, and after her death to be divided among his five children, as therein mentioned, and proved the grant of letters testamentary on his estate to his widow, on the 25th
Before considering the several rulings excepted to, we shall notice a preliminary objection taken to the action by the appellants, and then state our views of some general legal propositions which must control our decision of the case.
It is argued that this was a perpetual'lease, and differs in its character and terms from any of those referred to in any of the cases which have been decided under the statute of 4 Geo. 2, and does not fall within the provisions of that Act. But the length of the term cannot affect the operation of the statute. The lease creates the relation of lessor and lessee, or landlord and tenant, and the statute in terms applies to every such case. It dispenses with a previous demand of rent and re-entry, and substitutes therefor service of a copy of the declaration in ejectment, in all cases where the landlord or lessor has right by law to reenter. This lease gives the right of re-entry if the rent be in arrear for one year, “the same being first lawfully
ISText, what is tbe effect upon the case of the fact that Jacob Sleeper assigned and took a re-assignment of the lease in 1818? It is proved lie was in possession of the property from 1808, after the death of Shroud, up to 1818, but there was no tittle of proof offered tending to show that, during this period lie held in any other right than as a tort-feasor. The only construction possible as to the nature of his possession is, that it was that of a trespasser or disseissor. Before the possession had ripened into a perfect title by the lapse of twenty years, he voluntarily administered upon the estate of Shroud, and assigns and takes to himself a re-assignment of this lease by solemn instruments under seal, which he places upon record, and in which the title of the lessor is carefully recited and recognized. By this he became the tenant of filie lessor, and his holding thenceforth until his death, was consistent-with the title of his landlord. He, and those claiming under him are, by this act on his part, and by these conveyances, estopped from denying that the relation of landlord and tenant was then created between him and the owner of the reversion. From the date of these conveyances he became tenant of tbe premises under the lease recited in them, and tbe case is to be treated in the light of this as a conclusively established fact, and as if posses
1st. When the relation of landlord and tenant has been created, the possession of the tenant is consistent with the title of the landlord and the mere non-demand and nonpayment of rent, are not sufficient to bar the landlord’s title whatever effect they may have, if long continued, upon his right to recover the rent.
2nd. Not only is the tenant precluded from relying on his possession to bar his landlord,.but also all persons who come in under, or derive possession from, the tenant in any manner however remotely.
In support of these positions reference may be made to the well considered case of Jackson vs Davis, 5 Cowen, 123, and also to Brandter vs. Marshall, 1 Caines Rep., 394 ; Angell on Limitations, sec. 442; Banders vs. Lord Annesley, 2 Sch. & Lef. 106; Failing vs. Schenck, 3 Hill, 344. In fact we have been able to find no case in which these principles are disputed. It is to be observed that this is not even the case of a tenant holding over after the expiration of the lease, or of a tenancy at will. The term had not expired at the time this suit was brought. Unquestionably those succeeding a tenant in possession of the premises under or through him, may show the relation has been dissolved, or set up an actual ouster of the landlord, and adverse holding thereafter; but what is required to sujjport this defense ? Possession in such cases is presumed to be in accordance with the title, and this presumption will hold until some notorious and unequivocal act of exclusion shall have occurred. Thus in the case of Israel vs. Israel, 30 Md., 125, the Court in considering the case of tenants in common said, “the possession of one tenant in common is in contemplation of law, the' possession of the others also, and it is necessary to prove an actual ouster to rebut this presumption,” and this applies with equal
We cite these cases among many others to the same effect, to show that what will amount to and be proof of ■ adverse possession in ordinary actions of ejectment between strangers, has no application to the case before us. In cases like this there must be, at least, some proof of an actual ouster to rebut the presumption that the possession was in accordance with the title, and proof that does not come up to this is not evidence of adverse possession. Here the defendants’ ancestor was tenant of the premises, and they and those through whom they claim, succeeded to the possession after his death, and their sole defence to the landlord’s action is adverse possession. Now tested by the requirement and standard above stated, we are clearly of opinion the evidence offered by the defendants in the first seven exceptions, was properly rejected. We shall notice these exceptions briefly.
1st. We cannot perceive what • possible relevancy the inventory of Sleeper’s estate returned by his executrix, or the fact that no inventory was returned by Sleeper as administrator of Shroud, can have to the case. Neither the right of recovery or defense could be affected by such proof. It was rightly refused and this disposes of the first, fifth, and sixth exceptions.
2nd. One witness was asked whether the Sleepers • claimed the property as their own absolute property in any conversation with him, or did they admit the claim of any other person to the property in conversations with him about it? and another, did Mrs. Campbell, (the mother of the defendants) while in possession of the pro
3rd. Another witness was asked “ do you know whether the possession of the property by the Sleepers was notorious, adverse and exclusive and accompanied by the claim of absolute title? what was the notorious, general reputation in the community as to the Sleepers ownership of this property ? and still another, ‘ ‘ do you know whether the possession of the property by the Sleepers was notorious, adverse, exclusive and accompanied by the claim of absolute title? ” The Court also refused to permit these questions to be answered. Without stopping to consider technical grounds upon which both these rulings might well be sustained, we place their correctness upon the substantial ground already stated. There was no offer to prove that this claim of absolute title was ever made in the hearing of the plaintiff or of any one under whom he claimed. The record shows the defendants’ counsel admitted he could not show this, and he did not even offer to prove that the then owner of the reversion was a resident of Baltimore city, or of the State, so that this alleged general reputation of ownership in the community, or notoriety of possession, or the alleged claim of absolute title could possibly have reached him. Without some further proof or offer of proof on this point, such testimony was wholly inadmissible to establish or as tending to establish adverse posses
The Court having rightly rejected this proffered testimony, there was nothing left for it to do but to dispose of the prayers as it did, by rejecting those of the defendants, and granting that of the plaintiff. We have shown that non-demand and non-payment of rent cannot affect the case, and there were no other facts before the jury which could jiossibly affect the right of recovery, inconsistent with those left to their finding by the instruction granted at the instance of the plaintiff. By this the jury were instructed that if they found the execution and delivery of the lease from Goodwin to Shroud, and the assignment of it from Sleeper as administrator of Shroud to Peters, and from Peters to Sleeper, and the grant of administration on Shroud’s estate to Sleeper, and that Sleeper died in possession of the property in controversy leaving a will which was admitted to probate, and that letters testamentary thereon were granted to his widow1 and executrix, and that by this will he devised this property or this with other property, and that his wife and daughter the mother of the defendants were in possession, living with their said father and husband before his death, and so remained until the death of the widow, and the said mother with her children continued in possession until her death some nineteen years since, and shall further find the execution and delivery of the deeds by which the reversion was conveyed to the plaintiff, and that more than one year’s rent reserved in the lease was in arrears when the suit was instituted, and that there was not at the time of the institution of this suit and for some time before, sufficient distrainable property on the premises to countervail the rent due, then they should find for the plaintiff. The plaintiff’s right to recover upon this state of facts, cannot, in our opinion, be reasonably questioned.
Judgment affirmed.
Dissenting Opinion
filed the following dissenting opinion :
This ejectment was brought by the plaintiff', claiming that by the devolution of the reversion upon him, he was entitled to recover the possession of the property which Lyde Goodwin had leased, by deed, bearing date the 1st of May, 1801, for a term of ninety-nine years, to John Shroud, who died in possession, in the year 1806 or 1801.
The defendants claim the property by adversary possession, from acts of exclusive user and ownership on the part of their ancestors and themselves, from the year 1808 to the institution of the suit.
It appears from the testimony that Jacob Sleeper had possession of the property about the year 1808, and occupied it until his death, in the year 1818.
Since his death his widow, Hannah Maria Sleeper, continued to occupy it until her death, and after that her daughter, Philopena, afterwards Mrs. Campbell, resided upon the property, with her children, the defendants, until the house on the premises was burned down, in the year 1840.
There was no proof that any rent was ever demanded or paid by the occupants.
The counsel for the defendants, in his brief and argument, has insisted that by the terms of the lease providing that the rent should be first lawfully demanded, before the right of re-entry, or forfeiture, could accrue; that this lease was not within the meaning and scope of the Act of 4th Geo. 2, ch. 28, sec. 2 ; or the Act of our General Assembly of 18172, oh. 346, (which, in abolishing the previous forms and fictions, as to actions of ejectment, has, in connection therewith, substantially re-enacted the provisions of the English Statute, which had, in fact, been in operation within the State,) rendering an actual demand of the rent in arrear, and re-entry, unnecessary, to enable the plaintiff to maintain the action of ejectment. The possession of the tenant, without payment of rent,’ did not
The statutes were intended, without doubt, to reach cases where the possession was vacant, as well as when the ]oroperty was occupied, and there can be no question that they dispense with the formality of first demanding the rent. See Walter vs. Alexander, 2 Gill, 204.
It did not appear in what way Jacob Sleeper acquired and held the possession of the property from 1808 to 1818.
About the year 1818, he administered on Shroud’s estate, and undertook to make sale of Shroud’s term to Henry Peters, who conveyed the property back to Sleeper.
The plaintiff offered in evidence the will of Sleeper, which, it is conceded, embraces the property in dispute, but it does not appear from the tenor of the will, to what extent or in what way the property was held by Sleeper. If Jacob Sleeper had died intestate possessed of the lands,this would have been prima facie evidence of title in fee, in his heirs, by descent. His devise of the lands, without description of the interest he held therein, affords presumptive evidence that he held the fee-simple therein.
If he had acquired the possession of the property under the lease to Shroud, it is well settled he would be estopped from disputing the lessor’s title. In the absence of proof that he acquired the possession in pursuance of the law, the fact that he purchased the title of Shroud is not conclusive acknowledgment that he held on that right, but it is a circumstance to be considered and determined by the jury in ascertaining the nature and .character of his possession and claim.
With what intention or by what right a person entered into land and possessed it, and to what extent, are facts proper for the jury — that the deeds between Sleeper and Peters were not conclusive evidence of the fact that Sleeper
If Sleeper did not acquire the possession under and by virtue of the lease, but by some other title, or by disseisin of the owner, and did in fact claim the property absolutely as his own, the mere fact that he devised the property, without reciting in what way it was acquired, to the ancestors of the defendants, and that they claimed the property through him, could not conclude the defendants from offering evidence of such facts.
The plaintiff having offered the will of Sleeper and the letters testamentary on his estate to his widow, it was competent for the defendants to rebut such testimony by shewing the manner in which Sleeper held and claimed the property, by any pertinent and material testimony, to be considered by the jury, and the offer of the inventory in the first exception was admissible, and the Court erred in its exclusion. Hammond's Lessee vs. Inloes, 4 Md., 173.
The declaration of Mrs. Campbell as to her ownership, proposed to be offered by the defendants in the 4th exception, ought to have been admitted.
If they formed a part of her conversation as to the possession of the property, introduced by the plaintiff, the whole conversation could be given in evidence. But as isolated statements of her claim, or in what way she did claim, they were competent to be introduced for the consideration of the jury. Whether they were of such nature as to be brought home to the knowledge of the defendants, the jury must determine from all the evidence.
The offer in the 5th exception to show that no inventory of any property belonging to John Shroud was
The offer of the defendants in the sixth exception, to show that the property mentioned in the will of Sleeper was not returned and included by his executrix, was competent rebutting testimony, to meet any effect to be produced upon the minds of the jury by the introduction of Sleeper’s will, and the administration on his estate on the part of the plaintiff, and the Court erred in its exclusion.
The Court erred in its refusal of the jaroof offered by the defendants in the second exception. The possession of the property, with claim of title thereto, is presumptive evidence of title — possession accompanied with a claim of ownership in fee, is prima facie evidence of such an estate; declarations accompanying the act of possession, whether in disparagement of the declarant’s title, or otherwise qualifying his possession, if made in good faith, should be received as part of the res gestee. 1 Greenl. Ev., see. 109. The proposed testimony as to the claim of the Sleepers to the property was admissible. The same may he said as to the proof offered in defendant’s third and seventh exceptions, so far as it referred to the claim of title by the defendants ; but that was so connected with inadmissible matter as to render the evidence, as pf oposed, incompetent. The mere opinion of the witness, under the circumstances, as to whether Sleeper’s possession was adverse, was inadmissible.
The witness could testify as to facts of the claim of the property, its actual, visible, exclusive and continuous possession by the Sleepers; and any acts of user, or exclusive ownership, or other relevant facts to show the character of the possession from which the deduction could be made by the Court or jury, as to whether the possession of the Sleepers was such as might afford the presumption that
The possession must be such that the owner may be presumed to know that there is a possession adverse to his title — his actual knowledge is not necessary, it is sufficient if, by ordinary observation, he might have known. 2nd Greenleaf’s Ev., sec. 430. If the rule prescribed by the ruling of the Court below, that actual notice is necessary; there would be no further occasion to show the other characteristics of the claim, which have been substituted for notice. The latter question in the third exception, as to the general reputation of the community, as to Sleeper’s ownership, was objectionable, as title could not be established by reputation.
For the defects referred to in the third and seventh exceptions, there was no error in refusing the testimony as proposed therein.
Whether or not, the possession of the defendants was adverse, and the plaintiff, or some one under whom he claims, had notice, or may be presumed, from the circumstances, to have received notice, are facts to be determined by the jury, and not by the Court. Adams on Ejectment, 505, Appendix.
Disseisin does not necessarily imply a forcible entry, or actual ouster by violence or fraud; in cases of vacant possession a simple tortious entry and open exclusive
An actual ouster may be proved, or inferred from circumstances which are matters of evidence, to be left to a jury ; and it is not necessary to prove an actual or personal ejection by violence. Fisher vs. Parker, Cowper’s Rep., 219.
The plaintiff’s prayer was objectionable for sundry-reasons, and ought not to have been granted. It was calculated to mislead the jury, and to withdraw from their consideration the force and effect of the testimony, and to determine the same. by the Court.
' Conclusive effect and operation was given to the deeds from Sleeper to Peters, and from Peters back to Sleeper ; and to Sleeper’s possession, and the effect of his will, and as to the possession of Hannah Sleeper, widow of Jacob Sleeper, and her daughter Philopena. The prayer assumed that the said possession was in accordance with the deed from Lyde Goodwin to. John Shroud, and excluded from the jury all consideration of an adversary possession, and claim of title, aliunde. See Davis vs. Davis, 2 H. & J., 209.
' If the possession of Sleeper had been acquired under the deed from Goodwin to Shroud, the plaintiff would not be barred of his right to the property by the simple possession of the defendants, accompanied by a claim of title, if the plaintiff, or some one under whom he claims, had no knowledge of the adversary claim of title; but this was a matter depending upon proof as to whether the possession had been acqtiired in that way, or under some permission from the tenant. Callis vs. Tolson’s Ex’rs, 6 G. & J., 80.
The defendants’ prayers were all properly rejected. They were founded upon the erroneous theory that the mere possession and claim of absolute title to the property, and the non-payment of any rent for the period specified,
“ If no rent was paid and the tenancy was not expressly admitted, there must be some evidence to show that the possession was held in hostility to the rights of the lessor.” Gwynn vs. Jones, 2 G. & J., 184.
“To give the character of adverse holding, there must be some positive act, and not merely a failure to recognize the rights of the party. Matthews vs. Ward’s lessee, 10 G. & J., 457 ; Van Bibber’s lessee vs. Frazier, 17 Md., 451.