26 Md. 462 | Md. | 1867
delivered the opinion of this Court.
By the Act of 1852, ch. 177, several important changes were made in the law governing proceedings in ejectment, but by the 11th section, all cases then pending were excepted from its operation. Afterwards, when the provisions of the Act of 1852 were incorporated in the Code, it was provided, Article 1, sec. 1, that all suits then pending should he proceeded with, to final judgment as if this Code had not been adopted.
This suit having been instituted before the passage of the Act of 1852, must he governed by the pre-existing law ; neither the provisions of that Act nor of the Code having any application to the case.
The appeal comes before us upon six hills of exceptions, taken by the plaintiff below to the ruling of the Circuit Court, in refusing to allow the several patents and deeds offered in evidence to be read to the jury, on the ground that they had not been located on the plats.
These will he severally examined in the light of a few familiar and well established rules of law applicable to the questions presented, which will he first stated.
1st. Eo title paper not properly located on the plats is. admissible in evidence. 3 G. & J., 307. “But when the grant and the deed are the same, location of both is unnecessary.” Dorsey on Ejectment, 46, 47. “So where the whole of a tract is located on the plats, a deed conveying the whole may he given in evidence though not itself located.” Beall vs. Bayard, 5 H. & J., 127. Hall vs. Gittings, 2 H. & J., 383. “Two deeds, one for a specific portion and the other for the residue of the same tract, the patent being located, were received in evidence without being otherwise located.” Hall vs. Gough, 1 H. & J., 119.
3rd. When a party takes defence on warrant, and the plaintiff has located his pretensions-, such location is admitted, unless the defendant counter-locates. (See Dorsey, 56, and cases cited, note 8.) If the counter-location covers the same- ground as the locations of the plaintiff, it is equally an admission of the correctness of the latter.
4th. Where the same title paper is located by both parties in the same manner, covering the same ground, the location is binding upon both, and neither is allowed to dispute its correctness. Armstrong vs. Risteau, 5 Md. Rep., 256, 275, 276,
The first exception was taken to the refusal of the Circuit Court to admit as evidence the patent of “Moore’s part of Barbadoes Enlarged,” granted to George Moore on the 21st of February, 1761.
The same patent was- afterwards offered with the proposal to accompany it with certain proof mentioned in the-third exception, and again offered in the sixth exception, on the ground that it had not been counter-located by the defendant. It is immaterial to consider the third exception further than to say it involves the same question as-the first, because unless the paper was admissible upon other grounds, it would not be rendered so by the other proof offered in connexion with it.
In support of the ruling below, and to show that this-patent has not been properly located, the counsel for the appellees has called our attention to several supposed discrepancies between the table of courses and distances accompanying the plat and those named in the patent, upon a care
The same observations will apply to the patent of “Gilead,” dated the 13th of April, 1750, mentioned in the fourth exception, and the patent of “Gedor,” dated the 19th of September, 1728, mentioned in the fifth exception.
The counsel having, by agreement, corrected ¿the ninth line in the patent of Gilead, so that it shall read N. 15°, E. 63 perches, it appears that the tables of courses and distances accompanying the plats correspond respectively with the lines in the patents, with the single exception of the 11th line of Gilead, which in the table is S. 68^°, W. 32 p., instead of N. 68|-°, W. 32 p., as it is in the patent; it is evident this is a mere clerical error which may be corrected by a glance at the plat, and besides it is correctly stated in one of the tables returned by the surveyor. Neither of these tracts of land having been counter-located by the defendants, the plaintiff’s locations must be taken as correct, and there was, therefore, error in refusing t© admit the patents in e-vidence.
As to the deed from George and Peter D. Moore to Nicholas Lingan, and the deed from James James to Nicholas Lingan, mentioned in the second exception, we are of opinion they ought to have been admitted in evidence. These deeds purport to convey, the former two-thirds, and the latter one-third of “Moore’s part of Barba-does Enlarged,” patented to George Moore on the 21st of February, 1761, as described in the patent, and, also, a tract of land conveyed by James Pearre, by the name of “Addition to Barbadoes,” being part of a tract of land called “Gedor,” to George Moore, by indenture bearing date the 11th day of August, 1744, for twenty acres, more or less, which said last mentioned parcel is described by metes and bounds in the deed.
These deeds were not specifically located, but by the location of “Moore’s part of Barbadoes Enlarged, “Gedor,” and the location of the deed of McKenney and wife to John Chew, in which last the same parcel of twenty acres, as a part of Gedor, is described, it is manifest that the same lands described in the deeds of G. and P. D. Moore and James James to Lingan, are correctly located and described on the plats. Besides, the surveyor has distinctly marked on the plats the plaintiff’s claim and pretensions to part of “Gedor,” and the table of courses and distances accompanying them, when closely examined, will be found to correspond with those in the deed from Moore to Lingan, allowing a variation of two degrees.
Under the rule before stated no other or further location of these deeds was necessary.
This Court being of opinion that the objection urged by the appellees to the admissibility in evidence of the several patents and deeds mentioned in the bills of exceptions, on the ground that they have not been located on the plats, is not well taken, and that there was error in rejecting them, the judgment will be reversed and a procedendo ordered.
It seems to us to be manifest from the record, that there is in reality no dispute between the parties in regard to locations.
The land claimed in the declaration is the same as that described in the deed from McKenney and wife to John Chew, which has been located by both parties in the same manner ; and the several locations made by the defendants are of identically the same land, there is no conflict as to the lines. .The real question in dispute appears to be in regard to title only ; and while under the plea of not guilty, the onus of establishing ,a good title is upon the plains tiff, he may commence with any part of his evidence, and is not compelled to pursue any particular order of proof in tracing his title. Caton vs. Carter, 9 G. & J., 476. Naylor vs. Bowie, 3 Md. Rep., 258. Warner vs. Hardy, 6 Md. Rep., 525.
Judgment reversed and procedendo*
