Mobberly v. Mobberly

60 Md. 376 | Md. | 1883

Yellott, J.,

delivered the opinion of the Court.

This is an appeal from the judgment of the Circuit Court for Howard County in an action of ejectment brought by the appellee as plaintiff below, against John Cook Mobberly, tbe appellant in this Court. Tbe land described in the declaration lies in Frederick County, and the suit was originally instituted in the Circuit Court for that county and subsequently removed.

The plaintiff, whose name is Eldred W. Mobberly, offered as evidence a deed, dated the 3rd of June, 1850, from George Smith, trustee, conveying tbe land, now in •controversy, to Eldridge W. Mobberly, and, in connection with said deed, the record of a suit in equity terminating-in a decree for the sale of said land and the appointment of said Smith as trustee to make sale. He then offered to prove that Eldred W. Mobberly is the identical person named in said deed as Eldridge W. Mobberly ; that there' is no such person as Eldridge W. Mobberly; that the plaintiff is the E. W. Mobberly named in the trustee’s report in said equity record; that the plaintiff paid the purchase- money; that the deed was delivered to him; that Eldred was spelled Eldridge by a mistake of the draughtsman, and plaintiff did not notice the same ; and that, he entered into possession'and so remained until 1857, when he put his son, -the defendant, in possession of said property.

The Court admitted the evidence as offered, and to this ruling the defendant excepted. The ground of the objection to the admissibility of the evidence being the apparent dissimilarity between the name of the grantee in the deed and that of the plaintiff in the declaration, the Court clearly committed no error. In the case of Elliott and Wife vs. Knott, 14 Md., 135, the Court said, “We think the names ‘Penryn’ and ‘Pennyrine’ should be regarded, in the absence of all proof to show they belong to different tracts of land, as applicable to the same, and as idem sonans.” In that case there was the difference of a syllable in the formation of the names; while in this case by dropping the two terminal letters in one of the names we obtain a pronunciation of the one which it is barely possible to distinguish from that of the other. In the case just cited it must also be observed that the decision of the question involved was put upon the ground of the mere absence of proof tending to show a want of identity; but here there was a direct offer of all the evidence necessary to establish a complete identification. And the conclusion in regard to identity comes with irresistible force when we find Eldred W. Mobberly, the plaintiff in this cause, coming into Court, holding in his hands, as his muniment of title, a deed from the trustee conveying to Eldridge W. Mobberly, the land now in controversy. It is difficult to perceive by what process of ratiocination this conclusion could be avoided.

The plaintiff having offered evidence tending to prove that he was the person who bought the property and received the deed from the trustee ; that there was no such person as Eldridge ; and that no one had ever claimed the laud from him except the defendant; then offered in evidence the record in certain proceedings on the equity side of the Circuit Court for Frederick County, in which John Cook Mobberly obtained an injunction to stay the further prosecution of this suit, which injunction was subsequently dissolved. The Court below admitted the record as evidence and the defendant excepted. There was no error in the ruling of the Court. A record in chancery in a suit between the same parties and relating to the same subject of inquiry has always been held admissible in evidence in a subsequent suit for the purpose of proving antecedent admissions of either party relative to rights again involved in controversy. Rot only the answer but also the bill was at one time held to be admissible. At a later period the bill was excluded as containing only the statements of counsel. But a bill of complaint sworn to by the complainant is admitted on precisely the same ground as the answer. Being sworn to, it is no longer the mere statement of a solicitor, but is authenticated by the oath of the party, which must be taken as a solemn deck-ration that its averments are true. In the case of Stump vs. Henry, 6 Md., 201, a bill in equity, filed in another cause but supported by affidavit, was held to be admissible in evidence in a suit between the same parties or their privies in relation to the same rights again brought into litigation; and this is now the settled doctrine in this, State.

(Decided 20th June, 1883.)

In the bill filed for the purpose of obtaining an injunction to stay proceedings in this suit, and which was sworn to on the llth day of September, 1880, and filed on the 20th of the same month, John Cook Mobberly avers that the legal title to the tract of land now in controversy “is vested in said Eldred W. Mobberly,” and that he “is powerless to defend himself against the said action of ejectment, according to the strict rules of the common law; and is remediless in the premises save in a Court of equity where such. matters are properly cognizable.” Here is the admission and averment of the defendant, made under the sanctity of an oath, that he has no defence to this action.

From what has been said it necessarily follows that the Court below was right in rejecting both of defendant’s prayers.

There being no error in any of the rulings of the Court below the judgment will be affirmed. •

Judgment affirmed.