Isaac v. Clarke

2 Gill 1 | Md. | 1844

Chambers, J.,

delivered the opinion of this court.

Under the peculiar circumstances of this case, the competency of the juror was restored by his conveyance of all his interest in the property in contest. In this opinion, however, the court is not unanimous. The first exception is therefore affirmed.

We think the instruction given in the second exception was erroneous. A sale made by a sheriff to his own agent is not necessarily void at law, but voidable for fraud in fact. The jury alone is the proper tribunal to pronounce upon the fact of fraud, and the circumstance that the purchaser is an agent of the sheriff will be properly regarded with much suspicion.

The opinion expressed in the third exception is entirely approved. Such a proceeding in Chancery as the- appellant offered could not, upon any received principle, preclude the appellee from using any defence at law which could otherwise be urged.

We think the court below erred in the opinions contained in the fourth and sixth exceptions. The general rule is that a party consenting to hold as lessee cannot afterwards deny the title of his acknowledged landlord. There are exceptions to this rule; but they do not rest on the fact, that the acknowledgement was made by the tenant subsequent to his coming into possession, or that he originally had possession under another title. The circumstances of deception, mistake, or other grounds which exempt a tenant from the influence of the rule, apply as well to the case of admissions after his possession, as before.

We cannot concur with the County Court in the opinion given in the fifth exception. After an attentive consideration of the deed, we cannot perceive on its face the obvious uncertainty and vagueness which must make it impossible to locate it. On the contrary, it appears to us, looking, as ure must do, to the face of the deed, to be quite capable of a certain location, according to the metes and bounds expressed; and a deed capable of a certain location is, for that reason, sufficiently certain to pass the title.

Differing with the court below in the second, fourth, fifth, sixth exceptions, we must reverse the judgment, with costs to appellant, and issue procedendo.

JUDGMENT REVERSED AND PROCEDENDO AWARDED.

Archer and Chambers, J., dissented on the first exception.