71 Md. 64 | Md. | 1889
delivered the opinion of the Court.
This case was argued orally at the last term of the Court, and a conchtsion was announced, but was after-wards withdrawn, and a re-argument upon notes was ordered in respect to section twenty-two of Art. 53, of the Code of Public General Laws, as added by the Act of 1868, ch. 292, and the effect of the Act of 1870, ch. 279, and subsequent legislation upon it.
The appellant's counsel conducted their case in the lower Court and in this Court, on the theory, that section twenty-two of Article 53, which was enacted by the Act of 1868, was in full force in Harford County, where the transactions took place in the summer and autumn of 1.884, which gave rise to this suit. That view has again been pressed in the re-argument upon notes. After the most careful examination and consideration, we are unable to accept this view.
By the Act of 1868, ch. 292, section twenty-two was added to Article 53, of the Code of Public General Laws, title “Landlord and Tenant,'' to follow section 21. The added section reads thus: “Section 22. In all cases of renting lands wherein a share of the growing crop or crops shall be reserved as rent, said rent reserved shall be a lien on such crop or crops which shall not be diverted by any sale made thereof by the tenant, or by the assignment of the tenant in bankruptcy, or by the process of law issued against the tenant.” This section was given general operation throughout the State, and introduced an entirely new element into the relation of landlord and tenant, which was not allowed to remain a general law any longer than the next meeting of the Legislature in 1870, when, by its chapter 279, section
Having reached the conclusion that section twenty-two of the Code, as added by the Act of 1868, was not operative in Harford County after the Act of 1810, the solution of the other questions arising on this appeal, becomes very simple and easy.
The action is trover. The plaintiff declares for three hundred bushels of wheat which shé had stored at the warehouse of Joseph Ross, on the canal at Conowingo, in .Harford County, which the narr. alleged the defendant to have taken and converted to his own use. The husband of the appellee, Mrs. Haines, was the tenant of the appellant's farm in Harford County, and had been for several years, upon a crop-rent. According to appellant's own testimony, for the year 1884, the tenant was, by the contract, to have one-half of the products for his share. The tenant, being indebted to one James S. Chenoworth, made a mortgage to him of sundry articles of jrersonal property, including his interest in a share of the wheat crop growing on the farm rented of appellant for the year 1884, to secure an indebtedness recited in the mortgage as thirteen hundred and nineteen dollars and forty cents. Upon the 29th of January, 1884, decree
There were three bills of exception taken at the trial. The first was to the refusal of the Court when the plaintiff rested his case, to say that there was no legally sufficient evidence to justify recovery. The second was to the admission of certain testimony offered by the plaintiff' in rebuttal, and the third embraced the prayers. As our decision upon the prayers will cover the whole case, we
The first two related to evidence, which, by them, the jury was told they could not consideras affecting their
The second prayer directed the jury that they could not regard the statement of the appellant that the tenant had agreed to let him have all the wheat that year for arrearages of years before. It was not pretended that there was any written agreement to that effect, and the tenant’s share was regularly mortgaged, and the plaintiff’s title derived by purchase under decree for closing that mortgage. H was perfectly clear, therefore, that the claim of the appellant, which was, in fact, denied by the tenant, could not interpose any barrier to recovery in this suit.
The third prayer of the plaintiff, in effect, instructed the jury that if they found the tenancy to exist, and that tenant’s share was one-half of the crop, and that tenant’s interest or share had been sold to the plaintiff, and that after a division by the tenant a portion was delivered at Eoss’ for plaintiff', and that defendant took it, then they should find for plaintiff, although they might find the tenant owed defendant, and the wheat was not fairly divided. This prayer was objected to on various grounds, some of which have already been disposed of. But the right of the plaintiff to sue and recover in this case "was especially rested on the contention that she had not paid for the wheat she bought, and the trustees’ report had not been ratified. So far as the defendant was concerned, these facts, though true, were immaterial. The plaintiff rvas in possession, and was purchaser, and if the trustees had waited for the purchase money it was no • matter to the appellant. He could not, as against the plaintiff', who had the possession and the right to the possession, set up title to the wheat he had taken in another person. Harker, et al. vs. Dement, 9 Gill, 7; Mayor, &c.,
The fourth prayer of the plaintiff fixed the measure of .damages to be the value of the wheat when taken, with such interest as the jury might think proper to allow under the circumstances. There can, certainly, no fault be found with this instruction by the appellant. It is the settled law in this State, that the measure of damages is the value of the property taken, with interest from the taking to the time of verdict, where there has been a total deprivation of property, as was the case here. Thomas vs. Sternheimer, 29 Md., 268; Corner vs. Mackintosh, 48 Md., 389. We find no error, and the judgment must be affirmed.
Judgment affirmed.
A petition was filed on the 5th of October, 1889, in behalf of the appellant, by his counsel, William M. Marine, A. E. Musselman and George Yellott, asking for a rehearing of the foregoing case. The prayer of the petition was denied, and in support of the denial the following opinion of the Court was delivered:
In overruling this motion for re-argument we take occasion to say, that in making the decision in this case, we did not overlook section 137 of Art. 16 of the Code of 1860, as counsel suggest in their brief for a rehearing. Although there had been no formal ratification of the trustees’ report of sale, we regarded Mrs. Haines as being rightfully in possession of the wheat, and having'such qualified property therein as would sustain the action of trover against the appellant, who had not
The motion for rehearing must be denied.