2 Md. 57 | Md. | 1784
The Court, refused to give the direction to the Jury prayed by the plaintiff’s counsel, because in the first part of the prayer they impliedly request the Court to restrict the Jury to the testimony offered by the plaintiff, only with respect to Charles Carroll’s dying seised of Cole’s Harbour; because the testimony produced by the plaintiff to prove the seisin aforesaid may be believed by the Jury, although they may not believe that fact to be supported by the testimony; and because the Court are of opinion, that the testimony produced by the defendant to controvert the fact of Charles Carroll dying seised of Cole’s
And the plaintiff having stated in the opening of his case, that Charles Carroll, under whom he claimed, was in the seisin and possession of the tract of land called Cole’s Harbour, as heir at law to Thomas Cole the patentee thereof, by fiction and supposition of law, and also suggested in the second point made by him for the opinion of the Court, that he derived title under the said Thomas Cole the patentee. The Court were of opinion, that the law does not make a man in the seisin or possession of land, heir to another by fiction or supposition ; that conclusions of law are drawn from pre-established facts; and therefore, that when a man made title as heir to another, whether as a lineal or collateral heir, the law would not determine the fact, but he must prove
The plaintiff excepted to this opinion.
Cooke, for defendant. The principle contended for here by the counsel for the plaintiff, shows the absurdity of their former prayer to the Court. In the preceding exception, they allege that it ought to be presumed that Charles Carroll held as heir of Cole, and yet they now give evidence to prove he held under Todd’s title.
Seisin Is, prima facie evidence of holding the fee ; but is presumption only, and may be encountered by other testimony. Buller, 101. 290. Raym. 311.
Jenings, for the defendant. The plaintiff produced evidence, that since Todd’s resurvey, the land was held under Todd’s title j therefore, it was to be presumed, that the plaintiff had a title in Cole’s Harbour, on which the resurvey was made.
The defendant offered to prove that Todd entered under his’ mother, under some contract, and not under any other title, to encounter the plaintiff’s presump-, tion.
The Court, so far from being wrong in permitting the defendant’s evidence, would act properly in rejecting
If the Court let the plaintiff’s evidence go to the jury, it is right that the defendant’s evidence go likewise. The plaintiff’s might be rejected as not pertinent to the matter; but if pertinent, any presumption offered by the plaintiff, is in its nature proper to be encountered by evidence on the part of the defendant. This is another attempt to hear evidence only on one side.
If Lord Manfield's case on presumption, King v. Alston, 5 Burr, is cited by the gentlemen, it may be answered by Almon's Parliamentary Debates, A. D. 1770, p. 19. &c. In this debate, Mr. Dunning exposes the injustice of not suffering presumptive evidence to be encountered by other presumptions.
The Court were of opinion, that the evidence offered by the defendant was admissible. The plaintiff excepted.
Third exception. The defendant, to prove the location of Cole's Harbour from the beginning at A., (admitted by the plaintiff and defendant,) from thence to B. and from thence to C., and then with the red lines, (see the plat annexed,) according to the defendant’s first location of the said land, offered in evidence the certificates of Lunn's Lot and Todd's Range, the runnings of
“ Cole’s Harbour now called Todd’s Range, beginning at a bounded White Oak, standing in a line of a parcel of land formerly belonging to Alexander Mountney, and now in the possession of the said Todd, and running W. to a bounded Red Oak, standing by a small branch called the Spring Branch, then more west 75 perches to a double White Oak, in all containing 320 perches ; then
It was admitted by the plaintiff and defendant., that the said tract called Cole's Harbour, begins at the place described on the plat at the letter A.; and it was also admitted, that the north-west branch of Patapsco River is delineated on the plat.
The plaintiff, by his counsel, prayed the opinion of the Court, that the proper and legal construction and operation of the said certificate and grant of Cole's Harbour is, that from its beginning (agreed by the parties to be at the letter A.) it shall run west 320 perches* then E. N. E. 275 perches, then'E. 320 perches, and then S. S. W. to the beginning, and that all the land contained within the said courses and distances passed by the certificate and grant of Cole’s Harbour, to Thomas Cole the patentee thereof.
(See the arguments of counsel under the 9th exception, where the 4th, 8th, and 9th, are argued together.)
one of the Judges, delivered the following opinion.
The question before the Court arises upon the expressions in the certificate of Cole’s Harbour. As these cannot stand together, the opinion of the Court is prayed as to the true construction and operation of the grant. The question is not what estate passed by the grant; if that were the case, the Court might surely determine. Neither is the question what thing passes by the grant; if that were the case, it is equally clear that the Court might direct the Jury. As if the grant were of a tract of land, running certain courses and distances, containing 500 acres, and no more, and such courses and distances should be found to contain 1,000 acres. If the question, at this time of day, could arise upon the construction of such a grant, as to what passed thereby, the Court would be the proper jurisdiction to decide. But the present case appears to be a question merely on the intention of the parties. This intention, from the inconsistent expressions in the grant, is doubtful ; and to discover it, we must resort to such evidence as does not contradict the grant; and this evidence is proper only for the consideration of the Jury. One tiling is certain in the grant, that Cole’s Harbour must run 320 perches before the N. N. E. course of 275 perches can commence. This must be the case, or words in the grant, which admit of no doubt or diversity of opinion, must be rejected, and there could be no objection to directing the Jury as to this point. The inconsistent expressions are not doubtful, taken separately; but it seems all cannot be gratified. If one line runs west 320 perches, then the expression, bounding on the NorthWest Branch, is not complied with. On the other hand, if the 320 perches are expended on the North-West Branch, then the expression, running west, is of no significance. The question, then, is merely as to the
delivered the. following opinion.
I have no objection to determining the quality or nature bf the estate that passed from the proprietor to Thomas Cole the patentee, or what land.; and if it were a fixed, rule and the established usage, in questions concerning location, that a patentee and those claiming under him, should only hold land according to. the location that arises from a construction made upon the patent itself, independent of, and in exclusion of, all other proof whatsoever, not appearing upon the face of the patent itself, I should have no objection to taking up the matter of location, and determining upon it. But as this is not the r.ule and established usage in questions upon location ; and inasmuch as the fact of location may be settled by other proofs, variant from that which would be setded from a mere construction, arising from a patent itself, independent of, and in exclusion of, all other proof, it is, my opinion, that the Court ought not to. direct the Jury in the case, so far as it concerns location, because their opinion, although founded on one piece of evidence only, might tend to impeach a location, where the location upon the whole proofs offered in a ease, might stand fair and good. I consider location
Upon the whole, the Court are of opinion, that they ought not to give the direction prayed by the plaintiff’s counsel, so far as it concerns the question of location.
To this opinion the plaintiff excepted.
Fifth exception. In addition to the evidence before offered, the plaintiff produced in evidence several deeds, of the years 1711, 1759 and 1761, from different persons, conveying parcels of the tract called Cole's Harbour, as “ part of a tract originally called Cole’s Har - bour, but afterwards resurveyed and called Todd's flange.”
The plaintiff’s counsel prayed the direction of the Court to the Jury, that if they should be of opinion, that the tract of land called Cole’s Harbour, and the tract of land called Todd’s Range, were, at the time of the execution of the said deed from Todd and wife tQ,
Cooke, for defendant. The prayer on the part of the plaintiff is, that if the Jury should think it was intended by the conveyance of Todd's Range to pass Cole's Harbour, that the Court should direct that it is sufficient for that purpose.
No evidence can be admitted to contradict a deed. 2 Bl. Rep. 1249. 1 Sir a. 646. 974. The deed is sufficiently plain and intelligible, therefore no doubts can arise as to the construction of it.
The verdict of the Jury will ascertain the location of Todd's Range, and if that and Cole's Harbour are the same, the latter cannot extend beyond it. The plaintiff can have no injury done him but by supposing Cole's Harbour to extend beyond it, and, therefore, on his own principles, it is not conveyed by the deed.
The Court were of opinion, and accordingly directed the Jury, that no part of the tract of land called Cole's Harbour, except that part which lies within the lines of the tract called Todd's Range, passed by the deed from Todd and wife to Charles Carroll, and that there being no doubt in the construction of the deed with respect to what land passed thereby, the Court were of opinion, and so directed the Jury, that no evidence out of the said deed was admissible, to prove that more or other land was intended to be conveyed than is contained within the lines of the tract called Todd's Range. To which opinion the plaintiff excepted.
The plaintiff also produced evidence to the Jury, to prove that he entered in virtue of the deed to him from Carroll into the land in the said deed mentioned, and actually possessed a part thereof, and erected houses thereon, and remained so possessed.
Whereupon the plaintiff’s counsel prayed the direction of the Court to the Jury, that the evidence offered by the plaintiff, is a sufficient title in law for the plaintiff to maintain his ejectment.
Cooke, for defendant. The plaintiff shows the pos-' session of Carroll and those claiming under him, and prays a direction that the same is sufficient to maintain this action. There is no proof that Carroll had possession of Cole’s Harbour. The 5th exception shows that a part of it has been held by the proprietor of Lunn’s Lot. If title is to be made by possession, then it cannot extend further than the actual possession. Carroll was not heir to the patentee, and he had made no title to Cole’s Harbour by conveyance.
The Court refused to give the direction prayed for by the plaintiff’s counsel, because the facts by them stated to the Court, if they are believed by the Jury to be true-, do not prove that Charles Carroll was seised in fee of the whole of
The plaintiff excepted to this opinion.
Seventh point. The plaintiff’s counsel, to support this prayer to the Court, produced the grants of Cole’s Harbour and Hum’s Lot. (For the runnings, of which tracts, see the 3d and 4th exceptions.)
Then prayed the Court to declare to the Jury, that if they should be of opinion, that the plaintiff’s location of Cole’s Harbour, from A. to I., and thence N. N. E. 275 perches, E. 320 perches, and thence to A., (see the plat annexed,) is supported, that the defendant has no title to any land within and by virtue of the grant of Lunn’s Lot, that lies in Cole’s Harbour; and, therefore, that the 16th line of Lunn’s Lot, viz. N. N. E. 4 5 perches, to abounded Red Oak, in the line of the land of Thomas Cole, (see the lines designated on the plat,) as to any title conveyed by the grant of Lunn’s Lot, must stop at the west line of
. Cooke, for.the defendant. The prayer of the plaintiff’s counsel is, that the defendant can have no title to that part of Lunn’s Lot, lying within the west line of Cole’s Harbour. The plaintiff has no title to Cole's Harbour, and cannot take advantage of the defect of the defendant’s title. . This would bar the defendant of the act of limitation, if it was to be resorted to. And though the defendant had no title by virtue of his grant of Lunn’s Lot, to so much of it as extended within the lines of Cole’s Harbour, yet he has a right to defend himself under possession. If this opinion was given by the Court, it would preclude the defendant from contesting the location of Cole’s Harbour, which the plaintiff denies to run west.
were of opinion, and accordingly directed the Jury, that if they should be of opinion that the plaintiff’s location of Cole’s Harbour, from A. to I., and thence N. N. E. 275 perches, E. 320,perches, and thence to A* is supported, that the defendant has no title by virtue of the grant of Lunn’s Lot, against Thomas Cole and those showing a title under him, to any land that lies in the plaintiff’s location of Cole’s Harbour, and therefore the 16th course of Lunn’s Lot, viz. N. N. E. 45 perches, to a bounded Red Oak, in the line of the land ‘ of Thomas Cole, as to any title conveyed by the grant of Lunn’s Lot, against Thomas Cole, and those showing a title under him, must stop at the west line of Cole’s Harbour, and then the 17th course of Lunn’s Lot must run west to the end of the west line of Cole’s Harbour, as located by the plaintiff, and then, the 18th course of Lunn’s Lot must run by the N. N. E. line of the said land of Thomas
No exception appears to have been taken to this opinion.
Eighth and ninth exceptions. The plaintiff produced and read to the court, the act of assembly of 28th June, 1699, entitled “ an act ascertaining the bounds of land.” (See the 4<th exception.) Also the act of September, 1704, ch. 4. entitled “ an act repealing all former acts of assembly heretofore made, saving what are hereby excepted ;” which act has a clause “ saving always to all and every person and persons, whatsoever was his and their just rights and benefits, which he or they had by the former acts of assembly.”
The counsel for the defendant produced to the Court the following acts of assembly, viz. “ An act declaring an act entitled an act, ascertaining the bounds of land to be in force,” passed at a session of assembly held in April, 1706. An act entitled “ an act for ascertaining the bounds of land within this province,” passed at June session, 1715. And an act entitled “ an act for ascertaining the bounds of land within this province,” passed at April session, 1717. (For the several acts here offered in evidence, see the Appendix.)
Cooke, for defendant. The plaintiff contends, that the rights acquired under the act of 1699, were saved by the act of 1704, and that the deed from Todd and wife to Carroll, conveyed all the right in Todd's Range to. Carroll, as to extent and quantity, as if the act of 1704 had not passed.
The act of 1699 says, “ If a certain number of perches be prescribed to run by a creek, river or branch side, and no marked tree, nor certain course expressed, the number of perches shall not be spent away by the several windings of the river, creek or cove, but brought to a straight line of that length.” But Todd's Range calls for a tree, and has a certain course, therefore it is not within the act, and could have no right saved by the act of 1704.'
The plaintiff cannot be injured for two reasons. First, the act does not apply where bounds are called for; and, secondly, Lunds Lot is eider than Todd’s Range.
Matter in law is not to be given in evidence, for the Jury are to try only matter of fact. Duncomb, 317. Vaugh. 143. A saving in a statute which is repugnant to the purview, is void. 1 Co. 47. Plow. 564. 1 To. 339. 10 Mod. 115. There can be no proceedings under a repealed law. 1 Bl. Rep. 451. A subsequent law enforcing the provisions of one expired, is void. Burn’s Fust. 281. A cancelled deed is void, and cannot be given in evidence. Het. 138. Vin. Evid. 106.
The plaintiff contends, that the act of 1699 is evidence to prove the lines of Todd’s Range did include the whole of Cole’s Harbour. But there was no title proved by the plaintiff to Cole’s Harbour, either by descent or purchase. And the act was repealed by the act of 1704.
Jenings, for the defendant. Concerning the act of 1699, commonly called the land law, how far it ought to be given in evidence in this cause. This act expired the 15th Aprils 1707. Cole’s Harbour was taken up before the and law passed, and Todd’s Range during its continuance.
In the general repealing law of 1704, ch. 77. there is the following clause : “ Saving to all and every person or persons, whatsoever was, and is, their rights and benefits, which he or they had by the former acts of assembly, any thing in this present act contained to the contrary notwithstanding.” By ch. 79. of the same session,
# General rules of construction applicable to this case.
Statutes on the same subject are to be construed together. Plow. 206. 1 Burr. 447. 4 Bac. 646.
By reviving an act which had been repealed, the repealing act is made of no force. 2 Inst. 686. Plow. 203, 204.
By the statute of 7 Edw. VI. if any treasurer, receiver or minister-accountant, or their deputies, take or receive more than legal fees, he is to be fined. It was held, that though this statute was general in the words, it extended only to the king’s receivers, &c. and a clause in a former statute, 32 Hen. VIII., was resorted to, to.construe the other. ■
It was held that general words should be construed as particular words, where the intent was particular. Plow. 204, 205. 464. , .
Suppose the legislature had said in the continuing acts that they did not mean to include the act of 1699 in the repealing law, therefore they continued it,- would not this satisfy any one ? And yet their meaning, from a construction of the continuing laws, is equally plain.
The intent of the legislature is to be collected from all parts of the act. 3 Co. 59. b. 4 Bac. 648. It is objected, that in cases where two statutes cross one another, yet both shall stand. It may be answered, that this must apply to cases where it is possible. Where two statutes are made together, and one contrary to the other, reasonable construction shall be made. And where the penning of a statute is dubious, usage is a just medium to expound it by, for .jus et norma locjuendi is governed by usage. Usage is the hest interpreter. 2 Rep. 81.
What effect has the repealing law, according to the construction given to it bj’ the plaintiff’s counsel? By
By their construction, the act of 1699 is repealed, and yet the rules in it are to continue. The continuing laws say the rules in it shall continue. If the repealing law extends to this case, what does it do more than the continuing law ? for this preserves in full force the act of 1699. Therefore it supposes the assembly meant to keep that act in force by the repealing law, and yet immediately after did not know their meaning on the effect of it, and therefore passed another law to the same purpose.
What was saved in the repealing law ? (if it applies to the act of 1699.) Certainly nothing but what was in it. But every thing in it is continued in force- by the continuing laws. Then what effect has the repealing law ?
Adjoining lands have been taken up without paying any respect to this law, on the general rule, that a party is to go to his boundary, if proved ; if not, to be limited by his course and distance. This law would unsettle every thing.
Carroll bought under boundaries, and he has more land than is contained within Todd's Range.
Suppose a power had been given to the Judges, to decide according to the provisions of the act of 1699, and it was afterwards repealed; would the jury, in such case, be excluded from determining the location ? Suppose there had been no conveyance ; would not the expiration of the law leave every one as they were before it had passed ? Then can the conveyance give a more extensive right than the party himself would have had, if he had not conveyed ? How could he transfer sucha supposed right ? Such right must also have descended, if it could be conveyed.
What necessity was there for Todd to have a resurvey, if the law gave him more land without it ? Certainly the only kind of right given by the act, was to have the rule it established applied so long as it lasted. By their
This is an attempt to establish a rule, that in all cases antecedent to the expiration of the land law in 1706, the boundaries are to be disregarded, and the course and distance to govern the running. The act of 1723, ch. 8. speaks of lands depending on bounds ; but it seems they must depend on the land law ; and if the case does not come within the provisions of that law, then the bounds are to be disregarded.
An affirmative act is a repeal of a former affirmative-act, if contrary thereto, although there are no negative words in it. 1 Ray. 159, 160. Now, if the repealing Ltw gives greater affirmative rights than the subsequent continuing acts, then it is a repeal of such further rights. There are two continuing acts after the session of 1699.
If it is objected, that we say the law of 1699 was not repealed by the act of 1704, then the continuing laws are of no effect; for that act being perpetual, and the continuing laws for a particular time, it does not repeal them. T. Raym. 397. It may be answered, that this does not ans wer the objection, that a law repealed being revived, that the repealing iaw is destroyed.
The continuing law being for a time, if it does not repeal a perpetual law, yet it shows they did not intend the repealing law should take effect in that case, and to explain their intention, they passed the continuing law, and intended it to operate as a repeal of any construction.
Suppose the law makers present, and they were questioned as to their intention. 4 Bac. Abr. 649. Statutes creating a new jurisdiction must be construed strictly. 4 Bac. Abr. 653. 1 Stra. 258. 260.
All the most valuable lands in the country, especially In the lower counties, and the eastern shore, were taken up before the year 1707»
If the construction of the law given by the plaintiff’s counsel were right, would we be permitted to prove any boundaries of Todd’s Range ?
See the act of 1718, ch. 18. and the former laws for pointing out a different mode for settling boundaries. The law of 1718 is a general law, and relates to|all former surveys.
It is said to be a hard case, that a person buying under the act of 1699, should not be benefited by it. Is it not equally hard, that people who took up land before the law, (as was the case with Lunn’s Lot,) should be stripped of the property they had before purchased ? By the act of 1723, ch. 28. the boundaries of creeks, &c. are not to be concluded by any former laws. If land, being a junior survey, had been laid out from a boundary of Todd’s Range, would it be permitted, by running Todd’s Range’ without regard to boundaries, so as to take it away under the law of 1699 ? Might it not with equal propriety be contended, that a person who took up land during the existence of the law of 1718, or the other precedent similar laws, should have a right to establish his boundaries by commissioners, as provided for in those laws ?
The plaintiff’s counsel cited the case of Crow’s Lessee v. Scott, of April term, 1751, determined in the Court of Appeals,
The Court were of opinion, that if James Todd, the patentee, and Charles Carroll, who purchased from him, had any rights and benefits under the act of 1G99, that the same were saved and reserved by the said act of 1704. But they were of opinion, upon consideration of the repealing act in 1704, ch. 77. and the subsequent act of the same session, ch. 79. also another act in 1706, respecting the said act of 1699, that the words in the latter part of the said act of 1704, “ saving always to all and every person and persons, whatsoever was his and their just rights and benefits, which he or they had by the former acts of assembly,” repealed by the said act of 1704, can only mean, in the true construction of that law, and-from a construction drawn from analogy in like cases, that interests or estates, acquired under the faith or sanction of preceding laws, and existing at the time of making the said repealing law in 1704, and ascertained by some act done, under the permission or authority of the preceding laws, should be preserved; and that the said words, in the said repealing clause in the act of 1704, do not mean upon any principle of sound construction, that the rules prescribed in the body of the said act of 1699, should be set up as rules of decision, because such á construction of the saving clause in the said act, would be in direct opposition to the plain and obvious intent and meaning of the legislature, expressed in the purview and body of the said act, “ That all acts of assembly made before (except two particularly therein excepted) should be null and void-” And because the said act of 1699 is repealed,(a) and,
were (9th exception) further of opinion, that the act of 1699 should not be read to the Jury ; because no evidence had been produced to prove that Janes Todd derived his title to the tract of land called Cole’s Hai hour, either by descent or purchase, from the said Thomas Cole, himself, or any deriving a tide from him ; and because the said act of 16S9 was repealed, amongst other acts, by a general repealing act of 1704. And the Court were of opinion, that the said repealing act of 1704, “ saving to all and every person and persons, whatsoever was his and their just rights and benefits, which he or they had by the said acts,” repealed thereby, can only mean, in the true construction of law, that interests or estates acquired under those acts, and existing at the time of passing the said repealing act, should he preserved; but the saving does not mean, that the rules of construction prescribed by the act of 1699, for
The plaintiff’s counsel excepted to the opinions of the Court, on both the bills of exception.
The plaintiff appealed to the Court of Appeals, where the judgment was affirmed, at October term, IT'S/.
Judge Goldsborough having, previous to his appointment as Judge, been counsel for one of the parties, did not sit at the trial of this cause.
а) See an abstract annexed oF the plat filed in this cause.
Jenings's notes on this exception states, that Harrison, Ch. J. retracted this opinion the next morning. This may he the reason why his name is not signed to the bill of exceptions.
See vol. 1. p. 182.
It appears that the repealing act of 1704, ch. 77. also excepted such acts, “ which are not revived, saved and enacted this present session oí assembly.” Chapter 79. of the same act, passed at the same session, declares the act of 1099, “ ascertaining- the bounds of land,” to bo in force
In the case of Griffith's Lessee v. Howard, in the General Court* at October term, Í6&7, the same opinion, verbatim, was given by the . Court, as is here reported in the fifth and eighth exceptions, u;d en appeal t,o the Court of Appeals, the judgment was affirmed.