Cumberland Coal & Iron Co. v. Jeffries

| Md. | Jul 19, 1867

Bartol, J.,

delivered the opinion of this Court.

This record contains two appeals: the first from the judgment rendered against the appellants, who were defendants below ; the second from the order of the Circuit Court awarding execution on the judgment. The first appeal comes up on four bills of exceptions, which will be considered in their order ; premising that the suit Avas an action of trespass quare clausum fregit; the declaration alleged that the defendants “broke and entered certain lands of the plaintiff, &c., and then and there trod down and trampled upon and destroyed the plaintiff’s grass and crops then and there groAving, and ploughed up and destroyed the groAving crops of the plaintiff, and prevented him from using and enjoying the same, and divers other Avrougs,” &c., &c. The defendants pleaded severally “not guilty.” The Cumberland Coal and Iron Company pleaded liberum tenementum. The defendants, Tracy, Yan Deusen and Corcoran, each pleaded in justification that the title and right of possession to the lands, Avas in the Cumberland Coal and Iron Company, and they entered as its servants and by its command.

The suit was instituted on the 28th day of February, 1862. The plaintiff gave in evidence a written lease of the lands from the C. O. & I. Co., dated 30th March, 1859, by which they were demised to him for one year from 1st of April, 1859. He then gave in evidence “a notice to quit,” directed to him by the Company, dated 25th February, 1860, requiring him to give up the possession at the end of the then current year of his tenancy. He then offered in evidence the warrant and other proceedings instituted by the C. C. & I. Co., in April, 1860, under the 53d Article of the Code of Public General Laws, for the purpose of recovering the possession of the lands in question, with the judgment of the Justices thereon, refusing to award restitution.

To the admission of this testimony the defendants took their first bill of exceptions. In the judgment of this Court the testimony was admissible. In the argument in this Court it was objected that as to three of the defendants, Tracy, Yan Deusen and Corcoran, it was res inter alios, but they having pleaded in justification the rights of the C. C. & I. Co., stand in the same position as the Company, and the evidence was admissible against them as well as the Company. The same rule applies to the evidence contained in the second exception, which comprised the papers, proceedings, and docket entries in an action of ejectment, then pending, for the same land, brought against the appellee by the Cumberland Coal and Iron Company in the Circuit Court for Allegany County, and we affirm the ruling of the Circuit Court on that exception also. The third exception was taken to the admission of the testimony of several witnesses to prove the facts that had been deposed by one Henry Insheep, a witness sworn and examined at the trial before the Justices of the Peace, and who had since died. The object of this testimony was to prove an agreement by the Cumberland Coal and Iron Company made with the plaintiff in the Spring of 1859, to grant him an extension of the lease after the expiration of the term. We have said that the proceedings .had before the Justices were admissible evidence against all the defendants in this case, because they are not strangers to each other, but all justify under the alleged title of the Cumberland Coal and Iron Company; any evidence therefore that tends to prove a right of possession in the plaintiff as against the Company is admissible under the pleadings against the other defendants. So far as this evidence is concerned the former proceeding before the Justices, and the present, must be considered as actions between the same parties. In such case it is well settled the testimony of a deceased witness given in the former action is admissible. 1 Greenleaf Ev., secs. 163, 164, 165, 166, and authorities there cited. If it were necessary, several cases in this Court might be cited in support of this rule of evidence.

The fourth exception was taken to the refusal of the defendants’ prayer asking the Circuit Court to instruct the jury that there was no sufficient evidence in the cause, from which they could find that the term of one year for which the written lease was made, was ever extended. In our opinion there was no error in refusing this prayer. Although the testimony of Inskeep taken alone is somewhat vague and indefinite in its terms, it was competent for the jury to infer from it that there had been an agreement between the Company and the plaintiff that he should remain in. possession after the .expiration of the year. In addition to this, the proceedings before the Justices instituted by the Company, the verdict and their judgment thereon, was an adjudication by a competent tribunal appointed by the law to determine the question, deciding that the Cumberland Coal and Iron Company were not entitled to have restitution of the possession, and that the plaintiff was rightfully in possession. We think the Company was bound by the judgment, and by the finding of the jury on the questions at issue ; and that the proceedings were evidence in this cause not merely to prove the fact of the plaintiff’s possession at the time of the trespass; but also that he held rightfully and not as a mere wrongdoer. The question whether if he had been a mere tort feasor, wrongfully holding over after the end of his term and notice to quit, he could maintain this action against the owner of the land, entitled to the possession, is one upon which there is much conflict of authority. But as it does not arise in this case, we forbear to express any opinion upon it. On the first appeal the judgment must be affirmed.

On the second appeal, we are of opinion the writ of execution was erroneously awarded. After the judgment against all the defendants an appeal was taken and bond filed by one of them, the Cumberland Coal and Iron Company alone, and pending that appeal the writ of execution was awarded against the others. That was erroneous; the judgment was joint, and execution could not lawfully issue against three only of the defendants. The fact that one only had appealed, without summons and severance, made no difference, the question upon the regularity of the appeal was exclusively for the decision of this Court; the Circuit Court could not treat it as irregular. Besides, the writ of summons and severance is issued out of the appellate Court; and it would, have been competent for the other defendants upon the service of the writ, if one had been issued, to come into this Court and unite in the appeal. If they had refused to unite, a judgment of severance would have been passed by this Court, and the appeal of one would have been entertained, and the judgment might have then been enforced by execution against the others. Lovejoy vs. Irelan, 17 Md. Rep., 525 ; Cumberland Coal and Iron Co. vs. Jeffries, 21 Md. Rep., 382.

(Decided 19th July, 1867.)

On the second appeal the judgment of the Circuit Court will be reversed.

Affirmed on first appeal and reversed on second appeal.