82 Md. 1 | Md. | 1895
delivered the opinion of the Court.
The appellants instituted an action of ejectment against the appellee for a tract of land known as “ Horner’s Fishery,” which was alleged in the declaration to be adjacent to a tract called “ Mould’s Success,” and is described by courses and distances. The plaintiffs claim under the wills of their aunts, Frenetta F. Smith and Maria M. Smith, who died in i860. They offered evidence tending to prove that Samuel G. Smith, a brother of the Misses Smith, was in possession of “ Horner’s Fishery ” at the time of his death in 1845, and that the Misses Smith then entered and took possession of
It is contended by the defendant that these deeds conveyed all the interest of the plaintiffs in “Horner’s Fishery” to their father, John Jay, who conveyed it to Baker and Baker to the defendant, and the proper construction of them is the important question presented to us by this record. It is only necessary to consider the two last named deeds, as we are only called upon to determine what the plaintiffs have conveyed away, and not what John Jay undertook to convey. Let us take for example the deed from Samuel Smith Jay. It recites that he became entitled to an undivided interest in fee simple in the lands and premises therein mentioned and described by the wills of Maria M. and Frenetta F. Smith, and grants the following: “All my interest and estate in and to all that farm and premises lying and being on or near Swan Creek, in Harford County, aforesaid, composed of a tract of land called “Mould’s Success”
The deed from Priscilla Presbury and others to S. G. Smith and others, conveyed the tract called “Mould’s Sue ■ cess,” containing three hundred and fourteen acres, more or less, exclusive of elder surveys and water, and part of “Palmer’s Point,” containing twenty-one acres, more or less, but is there anything on the face of the deeds to John Jay from his two sons which would necessarily indicate an intention to convey “Horner’s Fishery,” if that be a separate and distinct tract from “Mould’s Success” and “Palmer’s Point?”, They describe the property as “all that farm and premises lying and being on or near Swan Creek,” and it is contended that “Horner’s Fishery” is a part of that farm, although the deeds add that the farm is “composed of a tract of land called “Mould’s Success,” and part of a tract of land called “Palmer’s Point,” containing in the whole, three hundred
We do not think that the intention to convey all the real estate devised by the wills, or this particular tract, is so clear and manifest as to justify the Court in determining from the face of the deeds that “ Horner’s Fishery ” was conveyed. We are of the opinion, however, that it was intended to convey the farm of the Misses Smith on Swan Creek, but whether the land sued for is embraced in that farm or is separate and distinct from it, is a matter of proof. If the farm, as generally understood, included the land sued for, the plaintiffs cannot recover. But, as already said, the plaintiffs offered some evidence to show that “ Horner’s Fishery” was separate and distinct from “ Mould’s Success ” and was not considered a part of the farm known as “ Mould’s Success Farm.” We think, therefore, the Court below was in error in granting the prayer of the defendant. There was a question of fact to be determined by the'jury under proper instructions of the Court. It is true it is the duty of the Court to construe a deed, but it is for the jury to apply its terms when thus construed to the land in controversy to ascertain whether the premises in question are within the description. 3 Wash, on Real Prop., 409. Parol testimony can be offered to explain the circumstances under which the deed was executed. Proof of these circumstances is intended to place the Court, as far as possible, in the position of the parties, so it can intelligently interpret the language used. When all pertinent and admissible facts are before the Court, it can then better determine what was meant, although of course parol testimony must be admitted with great caution.
In the case of Winter v. White, 70 Md. 305, the plaintiff claimed title under a deed which conveyed to him “ all those tracts or parcels of land situate in Howard County, consti
The Court was clearly right in refusing to permit the plot with accompanying description to be put in evidence. So far as the record discloses there was no proffer to show that the defendant or John Jay’s grantee had any knowledge of such plot, or that the purchase was made with reference to it. We know of no ground upon which it could have been admitted at the instance of the plaintiffs, and there was no error in rejecting it. But as the Court erred in granting the defendants’ prayer the judgment must be reversed.
Judgment reversed with costs to the appellants, and new trial awarded.