| Md. | Jul 19, 1867
delivered the opinion of this Court.
The questions for decision on this appeal arise upon the prayers. The suit was brought on the 20th of March, 1860. The appellee was plaintiff below, and claimed title to the land in controversy, under a patent from the State granted to John Hoye, on the 30th of March, 1841, and a deed from Hoye’s executor, dated the 13th of March, 1860. There is no dispute about locations, and under the patent and deed, it being admitted in the cause that Hoye’s executor had power to convey ; the paper title is in the plaintiff. The defence to the action rests upon a claim by adversary possession, and to maintain this the defendant gave in evidence a deed from Andrew Bruce, sheriff, to the Cumberland Bant of Allegany, dated the 12th of April, 1825, purporting to convey certain lands seized and sold under an execution as the property of one Thomas Monnett; the judgment, execution, levy and sale being admitted to be regular, and the production of the judgment and execution being waived: also, a deed from the bant to the defendant, dated the 21st of April, 1851, conveying the sa,me lands, and a subsequent deed from the bant to the defendant, dated the 21th of March, 1863, conveying by metes and bounds the two parcels of land in dispute, and which are embraced in the lines of John Hoye’s patent of March, 1841.
Evidence was also offered by the defendant of the possession of the land in controversy by Thomas Monnett, and by the bant after it obtained the deed from the sheriff. It appeared from the location of the lands described in the deed from Bruce to the baht, that the land in controversy was not embraced therein, and the Circuit Court instructed the jury, if they found that fact — “ then no presumption of title in said bant can be made to the lands now in controversy, from the fact of said conveyance by said deed, or from the previous possession of them by .those holding or possessing the same, prior to the exe
It is very clear that the bank could derive no title under the deed to any lands not conveyed thereby. The. property conveyed by the deed consisted of certain parcels of land therein described, not comprising the land in controversy ; it does not profess to convey any land held by Monnett by mere possession, without color of title; it is very clear, therefore, that any such possession by Monnett or others, under whom the bank claimed title by the deed, could not enure .to the benefit of the bank.
The second prayer of the plaintiff asserts, that if “the bank had the lands now in controversy, in possession by actual inclosure from the time of the execution of the sheriffs deed, till the year 1857, without knowing that any lands outside of the lines of said deed were inclosed, supposing that the said inclosures corresponded with said lines, and without intending to hold any lands outside of the lines of said deed by adversary possession, then such possession, even by inclosures, does not toll the right of entry in the plaintiff or prevent his recovery in this cause.” This prayer was also properly granted. “A disseisin cannot be committed by mistake, because the intention of the possessor to-claim adversely is an essential ingredient of a disseisin.” Ross vs. Gould, 5 Greenl., 212. “It is the claim of title that makes the possession of the holder of land adverse to all others.” La Frambois vs. Jackson, 8 Cow., 603. The same principle was recognized by the Court of Appeals, in 9 Gill, 278, Cressap vs. Hudson. The other prayers of the plaintiff having been rejected, it is unnecessary to notice them.
The defendant asked three prayers, of which the third was granted, the other two rejected. By the third prayer the jury were instructed “ that if they believed, from the evidence, that the defendant and those under whom he
This instruction covers the case of the defendant, and places it before the jury as favorably as he was entitled to ; and this being so, the rejection of the first and second prayers, even if they were free from objection, would be no cause for reversal. 3 Gill, 459 ; 3 Md., 341. Many other cases might be cited in support of this proposition. But, in our opinion, the first and second prayers were both fatally defective, in omitting to set out the essential elements necessary to constitute a good title by possession.
The first prayer states that “ if the defendant and those under whom he claims held the lands in controversy for twenty years before this action was brought, such possession is a bar to all right or claim derived from the State, under the patent to John Hoye and those claiming under him, and the plaintiff is not entitled to recover."
This prayer is defective in not leaving it to the jury to find that the possession was held adversely, and with claim of title. According to our construction of the 9th section, 5Tth Article, of the Code, to bar the right to lands derived under a patent from the State, such possession for twenty years must be shown, as would bar the right of entry'of a private person holding the paper title.
The second prayer failed also to submit to the jury to find that the possession was adverse and with claim of title, and was therefore properly refused.
Judgment affirmed.