Casey's Lessee v. Inloes

| Md. | Jun 15, 1844

Dorsey, J.,

delivered the opinion of this court.

With the county court’s refusal to admit the testimony offered by the plaintiff in his first bill of exceptions, and objected to by the defendants, we entirely concur. It was immaterial and irrelevant to any of the issues in the cause. A prevalent opinion in the neighborhood, even if known and adopted by the lessor of the plaintiff, as to her legal rights, whether founded in error or not, does not at law prevent the running of the statute of limitations, nor repel the legal presumption of a grant arising from adverse possession, long continued and acquiesced in.

We also concur with the county court in admitting to the jury the certificate of the rent roll, offered in evidence by the

defendants, as stated in the plaintiff’s second bill of exceptions. The rent rolls, which are books kept in the several counties of the State during the Proprietary Government of Maryland, by officers called rent roll keepers, were designed to show, in the respective counties, the grants of land made by the Lord Proprietary; the names of the subsequent alienees thereof; and the names of those who were in possession of the same; and the quit-rents with which they were chargeable. In all cases of controverted possession, or where possession was relied on as evidence for the presumption of a grant, certified extracts from the rent rolls, showing who were the possessors of the lands at the period in question, have been received by the courts of Maryland as competent testimony. But though the evidence objected to was admissible, after the testimony previously given in the cause, it is difficult to conceive why it should have been offered by the defendant,; or if offered, why objected to by the plaintiff. If adduced as evidence of the escheat grant to William Fell, it could neither benefit the defendant nor damnify the plaintiff; as the escheat patent itself, which is conclusive evidence of the fact, had already been in evidence before the jury. And if it were produced as evidence of William Fell’s possession under his es-cheat grant, so far as it proved any thing, it disproved that fact, by showing that he never was in possession under his escheat grant, and that no quit-rents had ever been charged against him. It would be extremely difficult to account for the rent roll keeper’s wholly omitting to charge William Fell with the quit-rents as the possessor of Mountenay’s Meek, upon any other hypothesis, than that upon an investigation into the subject by the rent roll keeper, he discovered (what the testimony in this cause renders more than probable,) that William Fell took nothing under his escheat, and consequently was not charged with the payment of quit-rents. But the effect of this rent roll extract is not only to disprove that William Fell was the possessor, or chargeable with the quit-rents of Mountenay’s Meek, but it shows that previous to the year 1756, and more than two years before the conveyancé from Edward Fell to Thomas Sligh, Thomas Sligh and Thomas Sheridine were the possessors of Mountenay's Meek, and charged with the quit-rents payable thereon. Facts strongly corroborating (if corroborating testimony were wanting,) the evidence the plaintiff had before offered in support of his claim and pretensions.

The plaintiff’s counsel, by the first prayer in the third bill of exceptions, call upon the court to instruct the jury, that, if they believe the facts enumerated in the prayer, “they are bound to presume a deed from said Alexander Mountenay, or those claiming under him, to Samuel Wheeler and wife, and from said David Jones to said Robert Blunt, or his ancestor, for the tract of land called Mountenay's Meek." These enumerated facts do not show that the plaintiff, or any of those under whom she has offered evidence of her deduction of title, ever held under either Wheeler and wife, or Jones, or received from them any conveyance of Mountenay's Meek, or that they, or either of them, ever were possessed of any part thereof. The only fact tending in the slightest degree to connect Wheeler and wife and Jones with the tract of land called Mountenay's Meek, is the isolated deed from Wheeler and wife, by Thomas Lightfoot, their alleged attorney, to David Jones. In the absence of all proof that Wheeler and wife were entitled to the land, or had been in possession of any part thereof, or that Robert Blunt, or those claiming under him, ever acquired, or claimed to hold title or possession under either Wheeler and wife or Jones, upon what ground could the court be called on to direct the jury to presume a deed from Alexander Mountenay, or those claiming under him to Wheeler and wife, and from David Jones to Robert Blunt ? There is not a scintilla of evidence from which it can be legitimately inferred that Blunt derived either title or possession from Jones, or that Wheeler and wife, or Jones, or any person claiming under them, were at any time in possession of the land in question. Upon what basis then could the plaintiff rest the presumption, which she demanded of the jury through the agency of the court?

Had the plaintiff have required of the court an instruction to the jury, that, they must presume a deed for Mountenay's JVeck, from Alexander Mountenay, or those claiming under him, to Robert B. Blunt, it would be difficult to discover a reason why it should not be granted. From Robert B. Blunt the paper or record title of the plaintiff was perfect, the only link, in her chain of title, which was wanting, was that from Alexander Mountenay to Robert B. Blunt. To supply this defect, by way of legal presumption, all that was requisite was to prove to the jury a continuous possession of twenty years or upwards, in Robert B. Blunt, or those claiming under him. And of this fact there was abundant proof. Far more than from the antiquity of the possession proved, and nature and circumstances of the case, could reasonably have been required or expected. The conveyance of Robert B. Blunt to James 2 odd, for Mountenay's Neck, bore date on the fourth day of October, in the year sixteen hundred and ninety-five. Of Robert B. Blunt's possession, no direct proof has been offered; and none could reasonably be expected, after a lapse of nearly one hundred and fifty years. But of the possession of his grantee, James Todd, there is proof, and that too coming in such an unquestionable shape, that it cannot be doubted. About three years after the date of the deed from Blunt to Todd, on the 17th of February 1698, the surveyor of Baltimore county, a public officer of the Lord Proprietary, who was upon the land and an eye witness of what he stated, who could have had no motive for misrepresentation, in the discharge of a necessary official act in respect to the survey of the tract of land called “Todd’s Range," certifies to the register of the Land Office, that it began “at a bounded white oak, standing in the line of a parcel of land formerly belonging to Alexander Mountenay, and now in the possession of the aforesaid Todd." On the 13th of March 1701, James Todd conveyed that part of Mountenay's Neck, connected with the present controversy, to one John Hurst, who, by deed of mortgage bearing date on the 13th day of October 1702, to secure the payment of £123, 6s. 4d., conveyed the same to Richard Colegate, who, in the Provincial Court of the April term 1705, recovered judgment in ejectment for the said mortgaged premises against said Hurst; but no writ of habere facias possessionem, as far as the record discloses that fact, appears to have issued thereon. The institution of this action of ejectment to April term 1704, by Colegate against Hurst, is evidence that Hurst was, at that time, in possession of the mortgaged premises; as had they, at that time, been in the possession of any other person, the judgment could have been of no avail to the plaintiff. And the declaration describes the mortgaged premises sued for as late in the tenure or occupation o {James Todd, of the aforesaid county, planter. Thus confirming, as to Todd’s possession, the previous certificate of the surveyor of Baltimore county.

In March, 1749, John Hurst, in consideration of ¿65, conveyed to Thomas Sheridine and Thomas Sligh, as joint tenants, the same lands conveyed to him by James Todd. And on the 15th of November, 1750, in consideration of ¿6100 sterling, John and Thomas Colegate, devisees of Richard Cole-gate, conveyed the same lands to said Sheridine and Sligh in joint tenancy. Whether the possession continued in Hurst till his conveyance to Sheridine and Sligh, or had previously passed from him to the Colegates, in this question of presumption of a deed, is of no importance; the plaintiff deducing a regular paper title from both, the possession of either is equally available to the plaintiff. And there is not a shadow of proof that the possession was in any other person.

In June, 1756, Thomas Sheridine, the elder, being dead, his son and heir-at-law, Thomas Sheridine, conveyed the said lands to Thomas Sligh, reciting in part the said conveyance from said John and Thomas Colegate to Thomas Sheridine, the elder, and Thomas Sligh, and that the said Thomas Sheridine and Thomas Sligh, in virtue of the said conveyance, were jointly “seized and possessed” of the said lands, and that his said father died “so seized and possessed, living the aforesaid Thomas Sligh,” “who now continues, as survivor, seized, and yet is actually possessed of the aforesaid lands.” For falsely snaking such a recital, Thomas Sheridine, the younger, as far as the record discloses, could have had no conceivable motive.

The extract from the debt books is evidence that Thomas Sligh, in 1754, was in possession of 100 acres, part of Mountenay’s Meek; and the extract from the rent roll, given in evidence by the defendants, shows that in 1756, if not before, Thomas Sligh and Thomas Sheridine were stated by the rent roll keepers of Baltimore county, to be the possessors of 200 acres of Mountenay's Meek. And the said extract from the debt books show, that from 1755 inclusive, till the year 1759, when he conveyed a part thereof to Thomas Hammond, (under whom the plaintiff claims,) Thomas Sligh was possessed of the said 200 acres, part of Mountenay's Meek. For a period then of sixty years, that is, from 1698 to 1758, the plaintiff has shown a continuous possession in those under whom she claims title. A stronger case for presuming a deed, on the ground of possessions of an ancient date, has rarely occurred in a court of justice.

But it is said that possession is a matter of fact which must be proved by the same kind of testimony requisite for the proof of any other fact or occurrence. To this proposition, as applicable to the case before us, we cannot assent. If the possession relied upon were of modern date, so that it might fairly be presumed as susceptible of proof by living witnesses, then would the objection urged present itself with imposing force. But as to the possessions in question, they are of so great antiquity, that the brevity of human life demonstrates that such testimony cannot be obtained. If the certificate of the surveyor, be not evidence in this case, upon what principle is it that entries in the debt books are evidence to prove ancient possessions of lands? And if the recitals, in these deeds, as to possessions, be not evidence, upon what principle is it that you admit hearsay evidence of ancient boundaries or runnings of the lines of old tracts of land? Or, how is it that you admit entries made in the books of a third person by the person whose duty it was to make them, and to whom no inducement to have made false entries could be imputed? In Mima Queen and child vs. Hepburn, 7 Cranch, 290, the Supreme Court decided that hearsay evidence is incompetent to establish any specific fact, which is in its nature susceptible of being proved by witnesses who speak from their own knowledge. But what must we presume would have been their decision, if, of facts of great antiquity, resting wholly in parol, of which no written evidence can be presumed to exist, hearsay evidence should have been offered? Why, that it was competent. The recitals here relied on are all made by persons wholly uninterested in the truth or falsehood of the facts recited.

It is also insisted that the plaintiff is precluded from relying on these possessions as furnishing a presumption for a deed from Mountenay, or those claiming under him, to Blunt, because Thomas Sligh having, in 1758, accepted a deed of conveyance from Edward Fell, the plaintiff, who makes title thro’ Thomas Sligh, is estopped from setting up a title paramount, or alleging that she derived no title under the conveyance from Fell to Sligh. If this doctrine of estoppel, as here contended for, be sanctioned, the condition of Sligh, and those claiming under him, is deplorable indeed. Sligh is as thoroughly es-topped by the deed from Hurst, and also by that from the Colegates, as he is by that from Fell. Their seniority or juniority neither adds to, nor detracts from their several efficacies as estoppels. If he sets up a title under the deed from Hurst, the reply would be, you have accepted a deed from the Cole-gates or Fell, and you are estopped from asserting a title derived in any other way. If he asserts his title under the Cole-gates, the deed accepted from Hurst or Fell would present to him a barrier equally unsurmountable. And the same would be the effect of either of the deeds from the Colegates or Hurst, if his title were insisted on under the deed from Fell. So that having made separate purchases of the titles of three claimants, he has no title at all; but if he had taken a deed from only one of them, he might perhaps have acquired an indefeasible title. The inconsistency and injustice of applying the doctrine of estoppel to a grantee, who claims nothing under the deed which he seeks to repudiate, cannot be more strongly illustrated than when attempted to be applied to a case like the present, where it is manifest that Sligh never, for a moment, supposed, that in taking a conveyance from Fell he designed to relinquish and abandon all the title to Mountenay’s JYeck, ■which he had acquired under the deeds from the Colegates and Hurst; and to admit that thenceforth he claimed no other title to Mountenrmfs JYeck than that transferred to him by Edward ■ Fell. That such was not the understanding of Edward Fell, is apparent from the terms of the deed, which do not profess, in the usual form, to convey the land itself; but simply the right, title and interest of Fell therein. In taking a conveyance from Fell, Sligh’s only object was to purchase his peace, or remove a cloud which overshadowed his title. The difference in the amount of purchase money paid to the Colegates and Fell, fully sustains this view of the transaction. To the former, for their title, was paid ¿£100 sterling; to the latter, ¿£50 current money. The deed from Fell to Sligh has performed its office, and consummated the contract between the parties. Fell has received his ¿£50, and Sligh obtained as its equivalent the asserted claim of Fell. The deed between them never was designed to have any further or prospective operation; to all intents and purposes it is functus officio. That the distinction which we have taken, as respects estoppel, when applied to a conveyance of the land itself, and the mere interest of the grantor in the land, is well founded. See 4 Ba. Abr. 192, Tit. leases and terms for years, letter 0, and the authorities there referred to, where it is stated, that, “if a man takes a lease for years, of the herbage of his own land, by indenture, this is no conclusion to say, that the lessor had nothing in the land at the time the lease was made, because it was not made of the land itself.”

The true ground upon which estoppels are applied to deeds is given in the case of Jackson, ex dem of Varick, vs. Waldron and wife, 13 Wendel, 178, where it is said, that “the true principle of estoppel, as applicable to deeds, is to prevent circuity of action, and to compel parties to fulfil their contracts; thus, a party in a deed asserting a particular fact, and thereby inducing another to contract with him, cannot, by a denial of that fact, compel the other party to seek redress, against his bad faith, by suit; but the court will decide upon the rights of the parties, without subjecting them to the expense and delay of a new litigation; and this they will do, noton the ground of conluding the parties from showing the truth, but because the whole truth being shewn, the justice of the case is not changed.” And in Blight’s lessee vs. Rochester, 7 Wheat. 547, a most able exposition of the doctrine of estoppel is given by Chief Justice Marshall, showing that it does not or ought not to apply as between grantor and grantee, and preclude the grantee from showing a prior and superior title in the grantee, to that transferred by the deed of the grantor. The true doctrine upon the subject is also correctly stated in 4 Ba. Abr. 190, Tit. leases and terms for years, letter 0, as follows: “but if such lease for years were made by deed poll of lands, wdierein the lessor had nothing, this would not estop the lessee, to aver that the lessor had nothing in those lands at the time of the lease made, because the deed poll is only the deed of the lessor, and made in the first or third person; whereas the indenture is the deed of both parties, and both are, as it were, put in and shut up by the indenture; that is, where both seal and execute it, as they may and ought; for otherwise, if the lessor only seals and executes the indenture, the lessee seems to be no more concluded, than if the lease were by deed poll; for it is only the sealing and delivery of the indenture, as his deed, that binds the lessee, and not his being barely named therein, for so he is in the deed poll; but that being only sealed and delivered by the lessor, can only bind him, and not the lessee, who is not to seal and execute it. And it should seem, that such lease by deed poll binds the lessor himself as much as if it were by indenture, because it is executed on his part with the very same solemnity, and therefore it should seem, he is bound by such lease by way of estoppel.”

We think the county court, therefore, erred in granting the plaintiíf’syírsí prayer in the third bill of exceptions.

The second prayer of the plaintiff, in the third bill of exceptions, involving in it the decision of most of the defendants’ prayers, we will forbear to express any opinion upon it till we have disposed of the defendants’ prayers.

The plaintiff’s third prayer in this bill of exceptions calls on the court for an instruction to the jury, that if, in addition to the facts stated in the first and second prayers, they also believe, “that the plaintiff, and those under whom she claims, have been in possession of the part of said property, by having a house erected upon it, and by the actual enclosure of a board fence, then the defendants cannot avail themselves of any title from presumption, except of such part as they can prove that they have also been possessed of, by actual enclosure, for twenty years, next before the impetration of the writ in this cause.” And this prayer, we think the county court ought to have granted, if it be assumed that, but for such presumption, the plaintiff is entitled to the property in controversy. The general principle being now too well established to require the adduction of authorities in its support, that a possessio pedis of part of a tract or parcel of land, by him, who is legally entitled to the entirety, carries with it the possession to the extent of his legal rights: and no wrong-doer can, in contemplation of law, by entry or the exercise of acts of ownership thereon, acquire the possession of any part thereof, but by actual enclosure, or ouster, actual dr presumptive. But such an assumption of title in the plaintiff cannot be made, as we shall hereafter show, and therefore the prayer was properly rejected by the court.

The instruction required by the plaintiff's fourth prayer was, “that the defendants in this case cannot avail themselves of the benefit of a grant to them for the property in dispute, unless they show by strong proof, a continuous and uninterrupted possession thereof for twenty years, next before the institution of this suit.” This prayer, we think, the county court erred in not granting. Uninterrupted, continuous possession is essential to the presumption of a grant, and by “strong proof,” was meant nothing more than such proof as would satisfy the jury of the existence of the facf, for the establishment of which it was offered.

The fifth prayer was, “that there is no evidence in this case to prove such possession.” The object (the meaning) of which proposition vras, that the evidence before the court was not sufficient to authorise it in instructing the jury to presume a grant to the defendants. After a minute and thorough examination of all the facts in the case, and of the law which applies to them, we are of opinion, that this instruction ought to have been granted. The grounds, upon which rest the presumption of a deed, are, that the rightful owner has so long submitted to acts of ownership over his property exercised by another, without ever having sued for the recovery of his property, or of damages for the unlawful invasions of his rights, that he is presumed to have granted them to him by whom the acts of ownership are exerted. Let us now see how far this presumption is applicable to the case before us, and ought to be insisted upon by the present appellant. To do this, we must bear in mind that the property, of which it is sought to deprive her, was not at the time of the alleged encroachments upon her rights, her freehold, or any tangible or visible property, or a franchise, or easement, of which she then had the capacity of enjoyment. It was a mere privilege of acquiring property by its reclamation from the water, and until reclaimed she had no property; no possession; no right which could be violated or encroached upon by any body. Inloes’ fence, which from its duration is the only trespass or possession relied on as the basis of this presumption, it must be borne in mind, was erected in navigable water, and far without the limits of the land owned by the appellant. What action could the plaintiff, or those under whom she claimed, have maintained on account of the erection of Inloes’ fence? Ejectment would not lie, there being no title in the land. Trespass, in which the law implies an injury, whether sustained or not, could not have been maintained, by reason of the want of ownership of soil, whereon the fence was erected. An action on the case could not be supported, because the gist of such action is actual damage or loss to the plaintiff; and the erection of Inloes fence, so far from inflicting damage or loss, conferred a substantial benefit, by aiding in the consummation of what was indispensable to the fruition of the valuable franchise with which the plaintiff had been invested by the laws of the State and ordinances of the city of Baltimore. Upon what principle then of reason, justice, common sense, or analogy, can this doctrine of presumptive grants be applied to the case now before us? ,

But the nature and extent of the interest acquired by improvers, under the act of 1745, ch. 9, and the state and condition in which the improvement must be, before any right of property vests in the improver, under the Act of Assembly, does not now, for the first time, arise in this court. The decision in the case of Giraud’s lessee vs. Hughes and al, 1 Gill & John. 251, unless overruled, is decisive, in the plaintiff’s favor, of the question we are now considering. There, Christopher Hughes being the owner of the land running to the water, the defendants, on whom his interests devolved, claimed title to the land in dispute, as being an improvement made by his tenant, under the acts of 1783, ch. 34, and 1745, ch. 9; and proved that his said tenant had, in pursuance of the provisions of said Acts of Assembly, made the said improvement (which was a wharf,) so far as to enclose the same, by the necessary logs, in 1789, and had the wharf filled up in the middle and north side thereof, and partly so on the east and south parts of the same; but that the logs of the said wharf, so made, had, “by injuries and decay in several parts, fallen down, (the top log entirely around,) and have not been repaired since: that part of the ground, filled up within the logs, had been, and still is, used and occupied as a distillery of turpentine; and that the water flows all round over the logs of said wharf, and within the same, from ten to twenty feet, according to the state of the tides.” That in 1789, his said tenant having moved off, the said Christopher Hughes took possession of the premises, and by himself, his tenants, and the defendants, his heirs-at-law, held the said wharf ever since, till the trial of the cause in 1828. In that cause, the Court of Appeals decided, that, in order to vest any title in the wharf, it must be completed; and that by reason of such incompletion of the improvement, neither Christopher Hughes, not his tenant, had acquired any title thereto, under the said Acts of Assembly. Without overruling this decision, can it, for a moment, be contended that William Inloes, by erecting and keeping up a straight line of fence, in the manner described by the testimony in the case before us, acquired a title to the property now in controversy? And if so, to what extent does this extraordinary fence confer title on its owner? Does it vest in him all filling up that may be caused by it, either immediately or remotely; to the north or to the south; to the east or to the west? Nay, it is relied on, as not only giving title to William. Inloes, but to all the other defendants, who hold their lots by separate leases, wholly unconnected with, and independently of, William Inloes. Upon what ground this reliance is placed, it would be difficult to conjecture. If, in virtue of this fence, a deed is to be presumed to Inloes from the owner of the water rights of Mountenay's Neck, (which rights, the raising of the present question of course concedes,) then is he entitled to the entire improvement, in dispute, to Lancaster street, to the utter exclusion of his co-defendants. In making this fence, Inloes, according to the proof, never designed to do more than extend and fill up his own lot; and upon no conceivable principle could any presumption of a deed cover more than the extension in front of his own lot, which would leave his co-defendants wholly unprotected against the claim of the plaintiff, by any presumptive bar, from ancient, continuous, adversary possessions. But suppose it were conceded, that the lines of Mountenay’s Neck did, by their original location, embrace the land now in controversy, would that enable the defendant Inloes to hold it upon the principle of the presumption of a deed to him? The only ground for such a presumption rests on the construction and continuance of his fence, as stated by the witnesses. This fence, it will be borne in mind, at neither end, nor at any part of it, touched his enclosures or soil, nor was it connected with any thing, natural or artificial, which could render it an enclosure or possession of any thing more than the ground which the fence itself covered. In its original construction, it was nothing more than a mere trespass, and its subsequent repairs were, as well in fact as in law, but repeated trespasses. In 3 Harr. & McH. 621, Davidson's lessee vs. Beatty, the court say, that, “where a person shows title to a tract of land, as for instance, Black Acre, and is in possession of part, possession of part is possession of the whole.” And in such a case, “where a person claims by possession alone, without showing any title, he must show an exclusive, adverse possession by enclosure, and his claim cannot extend beyond his enclosures.” “Where two are in possession of a tract or a house, it is his possession, who has the right.” In Chaney vs. Ringgold's lessee and al, 2 Harr. & John. 87, this court say, “when two are in mixed possession of the same land, one by title, and the other by wrong, the law considers him, having the title, as in possession to the extent of his rights.” And in Hall vs. Gittings, 2 Harr. & John. 112, that “where two persons are in possession of land, the one by right, and the other by wrong, it is the possession of him who is in by right.” The Supreme Court of New York have decided, in Jackson vs. Camp, 1 Cowen, 609, that, “entry under claim of title, is generally sufficient to constitute an adverse possession, and it is not immaterial whether the title be valid or not.” “But if claim is not founded on a deed or writing, the possession is limited to actual occupancy and substantial enclosure, definite and notorious.” And in Jackson, &c., vs. Schoonmaker, 2 Johns. 230, that “to make out an adverse possession in ejectment, the defendant must show a substantia] enclosure, an actual occupancy, definite, positive and notorious; it is not enough to make what is called a possession fence, merely by felling trees and lapping them one upon another round the land.” Upon the principles of these adjudications, how can it be contended, that simply upon the possession arising from Inloes' fence, you are to presume a conveyance (as far as the fence indicates, of indefinite extent,) of the land lying to the north, south, east and west of it? And such conveyance is to be presumed, not only to Inloes himself, but to all other lessees, deriving distinct and independent titles from the lessor of Inloes. As authority against the raising of such a presumption, see the case of Lessee of Potts vs. Gilbert, 3 Wash. C. C. Rep. 475.

The extent to which lot owners may make their improvements, in reference to each other, under the act of 1745, cannot, at this time of day, be a subject for contest. In Dugan and al vs. The Mayor and City Council of Baltimore, 5 Gill & John. 367, this court declared that this Act of Assembly vests, in the improver, no title to improvements not made pursuant to the provisions thereof. That “the improvements, authorised and encouraged, were those made by improvers in front of their own lots, not of their neighbors. The legislature never designed such an invasion of the rights of private property; nor, indeed, had they the power to legalise it, if such had been their design.” A similar construction had been previously given to the act of 1745, in Harrison vs. Sterett, 4 Harr. & McH. 550.

The right of extending her lot, or wharfing out to the city dock, under the act of 1745, and the ordinances of the city of Baltimore, was a franchise; a vested right, peculiar in its nature; a guasi property, of which the lessor of the plaintiff could not lawfully be deprived, without her consent. And if any other person, without her authority, made such extension, no interest or estate in the improvement vested in the improver, but it became the property and estate of the owner of the franchise. The fact that the improvement was made by the city officers or agents, and paid for by the defendants, does not at all vary the case, or change the relative rights of the parties, as was correctly decided by this court in the case of Wilson vs. Inloes, 11 Gill & John. 351.

On the part of the defendants, it has also been contended, that Mrs. Casey, and those under whom she claimed, having stood by and seen Inloes expend his money in erecting his fence and repairing the same, on the property now in dispute, and giving no notice of her or their title to the same, are ever after precluded from asserting their rights to the prejudice of Inloes, and those claiming under him. But there is no ground for such a defence in this case. The plaintiff’s right to the privilege in controversy, must be presumed to have been as well known to Inloes, as to the plaintiff, and the giving of notice would have been an act of supererogation. The true doctrine applicable to such cases, was decided by the court in the case of Gray vs Bartlett, 20 Pick. 186, that where one stands by and sees another laying out money upon property, to which he himself has some claim or title, and does not give notice of it, he cannot afterwards, in equity and good conscience, set up such claim or title, does not apply to an act of encroachment on land, the title to which is equally well known, or equally open to the notice of both parties; but the principle applies only against one, who claims under some trust, lien or other right, not equally open and apparent to the parties, and in favor of one who would be misled or deceived by such want of notice.

The sixth prayer asks the court to instruct the jury, “that the defendants cannot be allowed to avail themselves of any possession, so as to defeat the title of the plaintiff, further than such possession is located on the plats in this case.” - And in refusing it, we think there was error: it being a well established principle of the ejectment law of Maryland, that where defence is taken on warrant, all possessions, whether relied on to prove title, for illustration, or to disqualify witnesses examined on the survey, must be located on the plots in the cause.

In refusing the seventh prayer of the plaintiff, (which is, “that the acts and possession of any one of the said defendants, cannot avail the other defendants, by affording to them the benefit of a presumption of a grant,”) we think the county court also erred. There is no evidence to shew any possession in any person, under whom two or more of the defendants claim to derive title; but on the contrary, they all claim title under separate and independent leases. There is no privity of any kind between them. They all possess distinct rights of extending their respective lots into the water. How then can the presumption of a grant, founded on the long continued possession of the owner of one lot, enure to the benefit of the owner of a separate and distinct lot, of which no such possession had ever been held?

We approve of the county court’s refusal of the eighth prayer, “that before the jury can find a title in the defendants, or any one of them, by presumption of a grant from the plaintiff, or those under whom she claims, they must believe in their conscience, and find as a fact, that such grant was actually made.” The granting of such a prayer would have had a tendency to mislead the jury, by inducing them to believe that the presumption of a grant could not be made, unless the jury,, in point of fact, believed in the execution of the grant; whereas, it is frequently the duty of the jury to find such presumption, as an inference of law, although in their consciences they may disbelieve the actual execution of any such grant.

The ninth prayer was properly refused, not only for the reason we have stated in support of the refusal of the eighth prayer, but because it confined the jury to the finding of a deed executed by the plaintiff herself, and would have precluded them from finding, if the proof had warranted it, a deed from any of the grantors, under whom she might claim.

The tenth prayer, we think, ought to have been granted for the reasons stated by us in the consideration of the court’s refusal of the fifth prayer.

The eleventh prayer also, the county court should have granted. The possessions of the defendants on the east side of Caroline street, not interfering with or being adverse to any of the rights of the plaintiff, or those under whom she claimed, could form no basis for the presumption of a deed for the property in dispute, which lies wholly on the west side of Caroline street. That the title of the rightful owner, in a case of mixed possession, (which is the most favorable condition in which the defendants can be regarded,) cannot be barred “by adding together the different possessions and acts of the defendants, at long intervals, in point of time, so as to make out twenty years,” is a principle too well settled to require a reference to authorities to sustain it. Upon every discontinuance of the possession of the wrong-doer, by operation of law, the "possession of the rightful owner is restored: and nothing short of an actual, adverse and continuous possession for twenty years, can destroy his rights, or vest a title in the wrong-doer.

The twelfth prayer too, we think, should have been granted, as well from the nature of the plaintiff’s rights, to which the statutory bar is attempted to be interposed, as the total insufficiency of the possession and acts relied on as constituting the bar.

The thirteenth prayer is as follows: “If the jury find the patents, deeds and ordinances, offered in evidence in this cause, by the defendants, and that they were so offered by the defendants to show that they had the superior, better and more ancient right to extend, fill up and improve in front of their own lots, than the plaintiff, and those under whom she claims, have in front of her lot, then no possession which has been proved in this case on the part of the defendants, or any of them, can give rise to a presumption of a grant to the defendants from the plaintiff, as the claim of a better title on the part of the defendants than the plaintiff ever had, if the jury find that such claim is wholly inconsistent, and at war with such presumption.” In refusing this prayer, the county court, we think, were right for two reasons. First, because it requires the court to instruct the jury, that if the patents, deeds and ordinances were offered to shew a claim to a superior title in the defendants, then they cannot presume a deed to the defendants, because such claim is inconsistent with such presumption; although, for aught that appears in the prayer, the jury might believe, that at the date, and during the continuance of the possessions and acts of the defendants, they the defendants had no knowledge of such their claim to a superior title, and did not rely on it, but held the possession, and did the acts referred to, under a knowledge and admission of the original superiority of the title of the plaintiff, and those under whom she claims; and that the defendants claimed to hold their possession in virtue of a deed to them from the plaintiff, or those under whom she claimed. The author of the prayer doubtless designed that the court’s instruction should have been given upon the assumption that the possession and acts of the defendants were the result of their claim of original superiority of title, but such was not the state of facts, on which the instruction was refused by the court. And secondly, we approve of the court’s rejection of this prayer, even if it had been presented upon the statement of facts, on which, we presume, it was designed to have been based. When a court, as an inference of law, arising from proof of possession, directs a jury to presume a deed, it is done, upon the principles of public policy, for the protection of ancient possessions, not upon the ground that it believed that the deed presumed ever had an existence in point of fact, or that the party relying on such possession, either at its commencement, or during its continuance, claimed to hold under any such deed, or was silent as to the claim under which he held. The inference of law would be the same; the court would direct the jury to make the same presumption. All that the law requires to raise the presumption, is, that the possession should have been actual, adverse, exclusive and continuous, and under claim of title. If the presumption of the deed was a matter of fact, which the jury were only authorised to find on their belief of its existence, and the evidence of possession, which was the basis of the presumption, was taken and held under claim of a distinct and different title, then it would be competent for the court to instruct the jury, that there was no evidence whereon the existence of such a deed could be presumed.

The fourteenth prayer was properly rejected by the court below. It called on the court to instruct the jury as to the effect of the patent of a tract of land called “Fell’s Prospect,” which was neither located upon the plots, nor given in evidence to the jury. It also asked the court’s instruction to the jury, that the defendants cannot claim under the patent of “Island Point,” as a subsisting independent patent, but they must claim, if at all, by the relation to it, of the patent of “Fell’s Prospect;” a prayer which this court could not grant, as Long Island was not only granted under the alleged patent of Fell’s Prospect,” to Edward Fell, under which the defendants claim title, but was demised to Edward Fell by the last will and testament of his father William Fell, in 1746, to whom “Island Point” was granted, by patent bearing date in 1734.

The fifteenth prayer demanded an instruction, “that even if the jury should believe from the evidence that, Thomas Sligh claimed under the escheat patent of Mountenay’s Neele to Edward Fell, (meaning William Fell,) in the year 1737, still the said Thomas Sligh, and those claiming under him, have av right to go back, by relation, to the original patent of Mountenay’s Neck in 1663, and to date their title from that period.” In opposition to this prayer, a variety of grounds have been strongly urged. First, it is insisted that an escheat grant creates “feudum novum,” operating only from its date, independently and unconnected with the original grant, and that the doctrine of relation has no application to such grants; that upon the failure of the heirs of the first grantee, or the occurrence of other cause of escheat, the land vested in the Lord Proprietary, or vests in the State, since the organization of our State Government, as a part of the public demesne, and is held by the Lord Proprietary, or the State, and the escheat grantee, as if no previous grant had ever been made of it. We do not deem it necessary to examine the various authorities referred to, as shewing the character in which the Lord Proprietary or State acquires, or the nature of the interest acquired in, lands liable to escheat. Sir William Blackstone, in the 2nd volume of his Commentaries, p. 245, in speaking of the title which the Lord of a Seignory acquires by an escheat, says: “Sir Edward Coke considers the lord by escheat, as in some respects the assignee of the last tenant, and therefore taking by purchase; yet, on the other hand, the lord is more frequently considered as being ultimus hceres, and therefore taking by descent, in a kind of caducary succession,” And in Matthews vs. Ward’s lessee, 10 Gill & John. 451, this court have said: “In analogy, therefore, to the admitted condition of allodial property, and in conformity to the reason and justice of the thing, when the owner of real estate dies without heir, the State is ultimus hceres, and takes the property for the benefit of all.” Ultimus hceres, of what, did'(Sir Edward Coke, or this court mean? Assuredly, of that to which the person was entitled, whose death, without heirs, created the escheat. An escheat grant, in one sense of the term, is the creation of a feudumnovum: that is, the grantee takes the property granted, as a new fief ox feud, as regards his relationship, obligations and duties to the State. And what may be said of the State, is true as to the Lord Proprietary. He takes the estate granted upon the terms specified in the grant. But what is the estate granted? What are its limits, privileges, appurtenances, and priorities? To what liens and incumbrances it may be subjected, are matters existing independently of the inquiry, whether the grant be of a feudum novum, aut antiquum. When the State acquires title to land by escheat, it is not thereby invested with that, only, which it originally granted, and nothing mote or less. It is invested with all the rights, privileges, priorities and appurtenances incident to the land itself, and with which it was held by the person, by reason of whose default of heirs, it had become escheat. The State, thus succeeding to the rights of such person, takes the property subject to all liens and incumbrances imposed upon it by him, or those under whom he derives title. And the escheat grantee, upon the terms specified in his grant, takes the estate granted, in the same condition in which it may have devolved on the State, except so far as it may be affected by the doctrine of merger or extinguishment.

To prove that an escheat grant does not relate to the original grant, and pass to the escheat grantee all that passed to the original grantee, and which was held by him, whose death, without heirs, occasioned the escheat, no authority has been referred to. And that the reverse is the well settled law of Maryland, appears by reference to the case of Hall vs. Gittings, 2 Harr. & John. 112, where the court say: “An escheat grant relates to, and operates to pass, the whole of the original tract escheated.” And to the case of Howard vs. Moale, 2 Harr. & John. 250, where “the court refused to direct the jury, that an escheat grant did not include any land included in the original grant, except the same was included within the metes and bounds of the escheat grant, as particularly described; and that the escheat grant did not, by legal operation, convey all the land included within the original grant, unless the particular metes and bounds of the escheat grant did also include the same:” and said that “a grant for escheat land will relate back to the original grant.” And that “an escheat certificate and grant do, by operation of law, relate to the original tract, and is strictly within the principle and rule of law of relation between grants and certificates.” The same doctrine will be found in Dorsey on Ejectment, 78.

But it is insisted on the part of the appellees, that, conceding Mountenay’s Neck, the original, to have carried with it the title to the property now in controversy, by the escheat grant to William Fell, of “Island Point,” in 1734, this title or franchise was granted to William Fell, and became appurtenant to Island Point, under whom the appellees claim. Without inquiring whether, under any state of circumstances, such could be the effect of the escheat grant of Island Point, let us see whether such could be the construction of that grant, even conceding, that in terms it had embraced land included within the limits of Mountenay’s Neck. The appellees first insist, that although it should be conceded that Mountenay’s Neck was not liable to escheat in 1734, when the patent for “Island Point” issued; yet, that the Lord Proprietary is estopped from denying that it was so escheatable, and that whether then escheatable or not, is a matter of no importance, as the grant passed the contingent or possible right of acquiring the property by escheat, which right was then in the Lord Proprietary. And in support of the latter proposition, the case of Bladen’s lessee vs. Cockey, 1 Harr. & McHen. 230, has been referred to, as shewing that the relation of an escheat grant to the original grant, shall not defeat an intermediate grant, including the lands contained in the original grant. In the regular report of that case, no such question appears to have been decided by the Provincial Court or Court of Appeals. But the reporter appends “a note of Samuel Chase, Esq., then a practising attorney or the Provincial Court,” stating, “it has been determined that the relation of an escheat to the original certificate, shall not defeat mesne lawful grants. This was the case of Bladen’s lessee vs. Cockey, (about October 1776,) the substance of that case was as follows: a tract of land called “Carse’s Forest,” was originally granted to Robert Carse, in 1696. It was granted to George Stewart as escheat in 1746. In June, 1721, the same land was granted to John Cockey, by the name of “ Cockey’s Folly.” The question was, whether the grant to Cockey in 1721, was not an elder title than the escheat grant to Doctor Stewart in 1746, under whom Bladen claimed. Whether “Carse’s Forest” was escheatable in 1721 or not, does not appear. If it were, then was the decision, imputed to the Provincial Court, in perfect accordance with subsequent decisions in this State upon like questions. But if the fact were otherwise, then must we express our decided dissent from this alleged decision of the Provincial Court. Until the occurrence of the event which constitutes the escheat, the interest of the Lord Proprietary, in relation to it, was a mere possibility, and could not be the subject of a grant. Such in effect was the decision in the case of Partridge’s lessee vs. Colegate, 3 Harr. & McHen. 340. And in Hall vs. Gittings, 2 Harr. & John. 112, the court say, “escheat is that possibility of interest which reverts to or devolves on the Lord, upon failure of heirs, of the original grantee, and he cannot grant the land again until that event happens; and if he does, his grant will pass nothing:” and land not liable to escheat at the time it was included in a grant on a survey made in virtue of an escheat warrant on another tract, but which afterwards became escheat, will not pass under such grant, and the State is not estopped from granting it to any other person.” And in Howard vs. Moale, 2 Harr. & John. 250, the court decided, that “a grant of land, surveyed under a common warrant, will not pass land not then liable to escheat, but which afterwards became escheat, and as such was granted to a third person.” But apart from these decisions, the inapplicability of the doctrine of estoppel to grants of land made by the State or Lord Proprietary, is clearly shown in Codman and others vs. Winslow, 10 Mass. Rep. 155. Such grants and patents issue upon the statement of facts made by the grantees, and the recitals and assumptions of facts, therein contained, are, in fact, but the suggestions of the grantees. In such grants or patents, nothing passes but the title which the grantor then possessed, not that subsequently acquired.

But it is urged by the appellees, that conceding the law to be, as we have stated it, that it does not apply to William Fell’s patent for “Island, Point,” in 1734, because “Mountenay’s Neck” was then liable to escheat, of which liability, the only evidence offered, is the escheat warrant and patent tb William Fell, of Mountenay’s J\eck, in 1737. An escheat grant is prima facie evidence that the land granted is liable to escheat. But liable at what time? At the date of the issuing of the escheat warrant, and not antecedently. The escheat warrant for “Mountenay’s Neck,” which issued in April 1737, is no evidence of its liability to escheat in 1734.

Suppose, however, we are wrong in the views we have taken of the operation of the grant of “Island Point,” in 1734, and that it passed to the patentee a portion of “Mountenay’s Neck,” or of the franchises incident to it; of what avail is it to the appellees? William Fell, by the patents of 1734 and 1737, being entitled to both tracts of land, and his devisee, Edward Fell, having, by his deed of 1758, conveyed “Mountenay’s Neck” to Thomas Sligh, it passed to him, with all its appurtenances, in the same manner that it was held under the original patent of 1663. See the case of Mundell vs. Perry, 2 G. & J. 193.

As far as regards any conflict of rights between these parties, Inloes and the other defendants had, undei the act of 1745, a right to extend westwardly, in front of their lots, to the line of .the eastern end of the City Dock, extended northwardly; that is to say, to the west side of Caroline street, and no farther ; and the lessor of the plaintiff had the right to extend her grounds to the City Dock, at the south side of Lancaster street. Upon the aforegoing views, this court think that the plaintiff’s fifteenth prayer ought to have been granted.

The court below erred in granting the plaintiff’s sixteenth prayer, upon the grounds stated by us in the examination of the propriety of its granting the plaintiff’s first prayer in the third bill of exceptions.

We concur with the county court in their refusal to grant the defendants’ second and third prayers, and dissent from its granting the defendants’jffwfA prayer in the third bill of exceptions, upon the grounds we have stated in reviewing the court’s opinions upon the various prayers of the plaintiff, contained in that exception.

And we concur with the rejection of the second and third prayers for an additional reason. In those prayers, they put to the jury the finding of certain facts, none of which relate to the acquirement of title by the defendants in virtue of possession; and these prayers are predicated upon the assumption, that the defendants had shew’n a clear paper title to their several lots, by means of which they assert a title to the property in dispute. But this assumption of title is wholly unsustained by the evidence before the jury. They severally claim title to their respective lots under leases from Ann Fell, who, by the record, is not shown to have had any title to the lots attempted to be leased. And, waiving this defect, w’hich, of itself, is an insuperable objection to the court’s instructing the jury that the defendants are “the elder riparian owners of the water lots on Bond street,” the court could not have granted the prayer, because the only evidence to show’ William Inloes (apart from his possession,) was entitled to lot number five, wms, that he wrns the heir of Abraham Inloes, the lessee for a term of years.

The first prayer of the defendants, “that if the jury find that the tract of land called “Bold Venture,” was granted as given in evidence by the defendants, and that the same is truly located on the plats in the cause by defendants, that then the patent of "Mountenay's Neck” gives no title to the lessor of the plaintiff to the lot of ground for which the defendants have taken the defence on the plats,” we think ought to hare been granted. “Bold Venture,” embracing all the land between-the line of “Mountenay's Neck” from M to N, and the City Dock, covers of course, the ground now in controversy, as effectually as if it had been fast land, at the time the “Bold Venture” was originally surveyed. The act of 1745, ch. 9, never was designed to give one land-holder the power of extending his improvements over the land of another. If such had been the design of the legislature, it possessed not the power of effecting it, in the mode provided by that Act of Assembly. The grant of “Bold Venture,” though for the most part covered with water, still passes to the grantee all the soil,, under the water, included within its outlines, with all the rights of property incident thereto, subject only to the rights of the public, as to fishing and navigation. If it had been encroached on by any person, as by driving of piles and erecting a wharf, or building a house thereon, an action of trespass or ejectment could have been maintained by the patentee, or those claiming under him. See the case of Brown vs. Kennedy, 5 Harr. & John. 210.

Upon the views we have expressed in relation to “Bold Venture,” we could hot do otherwise than approve of the county court’s refusal to grant the plaintiff’s second prayer in the third bill of exceptions.

From what we have said in relation to the three preceding bills of exceptions, it follows, that we dissent from the county court’s refusal to grant the four first prayers of the plaintiff in the fourth bill of exceptions; but concur with it in its refusal of the fifth and sixth prayers of the plaintiff.

As “Bold Venture” bars the plaintiff’s recovery as against any of the defendants, we approve of the county court’s'refusal to grant the plaintiff’s prayer in the fifth bill of exceptions.

No ground of error has been suggested to us, and we have discovered none, in the court’s admitting the testimony objected to by the defendants in the sixth bill of exceptions.

We approve of the acts of the court in the first and second bills of exceptions, and of their refusal to grant the plaintiff’s second, eighth, ninth, thirteenth and fourteenth prayers, and the defendants’ second and third prayers in the third bill of exceptions, but we dissent from the court’s granting the first and sixteenth prayers of the plaintiff, and its refusal of the plaintiff’s third, fourth, fifth, sixth, seventh, tenth, eleventh, twelfth and fifteenth prayers, and the defendants’ first and fourth prayers in the said exception; and concur with the court in its refusal of the four first prayers of the plaintiff in the fourth bill of exceptions, and dissent from its refusal of the plaintiff’s fifth and sixth prayers; and we concur with the county court in its refusal of the plaintiff’s prayer in the fifth bill of exceptions, and also with its overruling the defendants’ objection to the testimony mentioned in the sixth bill of exceptions.

JUDGMENT REVERSED AND PROCEDENDO AWARDED,