Hammond v. Morrison's Lessee

33 Md. 95 | Md. | 1870

Grason, J.,

delivered the opinion of the Coui't.

The first question presented upon this appeal, arises upon the construction of the 2d section of the Act of 1781, chapter 20, and the 10th and 13th sections of the Act of 1788, chapter 44. The 2d section of the Act of 1781 is rather obscure in its phraseology, but it appropriated all the lands within the State, in Washington county, westward of Fort Cumberland, to discharge the engagement of the State to the officers and soldiers of the Revolution, and, after the completion of that engagement, to the use of the public, as the General Assembly might direct, excepting, however, the lands on which locations had been made by special warrant, or actual surveys under common warrants, (which warrants and surveys, and the rights resulting therefrom, were, at the time of the passage of the Act, bona fide the property of citizens of the State of Maryland, or some one of the United States,) and for which lands the composition money had been paid; with a proviso, however, that the lands so located, surveyed and paid for should not be patented without the further order of the Legislature. At the time of the passage of this Act, the number of the officers and soldiers who were entitled to lands, had not been ascertained. Under a resolution of the Legislature, passed in 1787, the lands described in the Act of 1781, were surveyed and laid off into lots of fifty acres each, a plat of which was returned, as required by the resolution, by which it appeared that there were four thousand one hundred and sixty-five lots, besides sundry tracts which had then been patented, and that there were six hundred aud thirty-six lots improved and cultivated, and settled by three hundred and twenty-three families. The Act of 1788, chapter 44, was afterwards passed, giving a preference to those settlers to the lots, so occupied by them, upon their making certain payments therefor. Then, after reciting that, from the most accurate account that could be rendered by the Auditor General, there were about two thousand, four hundred and seventy-five soldiers, and one hundred officers entitled to lands under the several Acts of the Legislature theretofore passed, the Act of 1788 provided, that twenty-five hundred and seventy-five of the lots which had been surveyed, and which were situated within certain lines particularly described in the Act of Assembly, should be distributed by lot among the soldiers and officers and their ‘legal representatives, by the commissioners to be thereafter appointed by the Governor and Council, and the 6 th section provided that certain of the remaining lots should be distributed by lot among the officers of the Maryland line. Section 10 provided that the remainder of the lots be sold for any kind of specie certificates of this State, to be paid at the time of the sale.

By section 13, it was enacted, that any of said lands not hereinbefore appropriated, and any other lands in this State then vacant, and to affect which no warrant had issued, should be liable to be taken up in the usual manner by warrant.

It was contended by the counsel of the appellants, that all the lots west of Fort Cumberland had been appropriated by the Act of 1781 to a particular object, and that they could not be disposed of in any manner other than by a sale, according to the direction of the 10th section of the Act of 1788. We are satisfied that that section applies only to such of the lots situated within the lines described in the Act, as might remain after the officers and soldiers had received their allotment, and that the 13th section referred to all other lots not contained within the lines mentioned and described in the Act of 1788, notwithstanding they were situated west of Fort Cumberland. This construction gives effect to both the 10th and 13th sections, reconciles what might seem to be inconsistent in them, and coincides with that which has been given to them in the Landholder’s Assistant, at page 315. The lots, in controversy in this case, are not of the number included within the lines described in the Act of 1788, and are no part of the twenty-five hundred and seventy-five appropriated by that Act, and are, therefore, not within the provision of its 10th section. They were, consequently, liable to be taken up, under the 13th section, under warrant, as other vacant land. A patent for these two lots having been granted to Nathaniel Beall Magruder in 1803, the title to them was vested in him, and, therefore, the State could convey no title in them by a sale and patent to Thomas Johnson in 1814. The first prayer of the appellee was, therefore, properly granted, and it follows as a consequence, that the first, second and third prayers of the appellants were properly rejected. But it was also contended, that Adam Sigler took a moiety of “The Trap,” under the deed from the patentee, to him and Morrison, and that said Sigler, and those claiming under him, were tenants-in-common with the appellee, and that, therefore, there could be no recovery of a moiety of the land in dispute, without proof of an actual ouster of his co-tenants by the appellee, and an adverse possession thereafter of twenty years. It is true that the possession of one tenant-in-common is, in contemplation of law, the possession of all his co-tenants, unless there be an ouster of them, and in that event only can one tenant-in-common maintain an action of ejectment against his co-tenants. The ouster need not be accompanied by positive force, but miist be established by acts or declarations brought home to the knowledge of the co-tenant. Van Bibber’s Lessee vs. Frazier, et al., 17 Md., 451. There was proof in this case to show that the appellee, and those under whom he claimed, always held the exclusive possession of “ The Trap,” claimed it as their own, received the rents and profits, and at one time rented it to Murphy, a son of James Murphy, to whom Adam Sigler had conveyed his interest in the Trap, and that ho left the property upon receiving notice to quit, and that during the whole of this time the parties under whom the appellants claim, were living in the immediate vicinity of “ The Trap.” This was evidence of such a character that the jury might, upon it, find an ouster by James Morrison, or those claiming under him, of their co-tenants, and there was, therefore, no error in granting the appellee’s second and third prayers, which required the jury to find, from the evidence in the cause, that Sigler, James Murphy and his heirs at law, knew of the adverse possession and claim of exclusive ownership of “ The Trap,” by James Morrison, and those claiming under him, as a pre-requisite to the finding of a verdict for the appellee.

(Decided 30th June, 1870.)

As the Morrisons were in possession of a part of “The Trap,” by actual inclosures, claiming title to the whole under the patent to Magruder and the subsequent deed from him, both of which were in evidence in the cause, it was not necessary that the jury should find that the whole tract had been held by actual enclosure to entitle the appellee to recover, and, therefore, the Court below properly refused to grant the fourth prayer of the appellants, and its judgment must be ■affirmed.

Judgment affirmed.