27 Md. 604 | Md. | 1867
delivered the opinion of this Court.
This is an action of ejectment brought by the appellee to recover “ Military Lot No. 3,905,” in Allegany county. The defendants pleaded not guilty, and took defence on warrant, claiming title by adversary possession, to two portions of the Lot, described in the Surveyor’s return and on the plats as “Possessions No. 1 and No. 2.” They recovered for Possession No. 2, and the plaintiff, not having appealed, that is not now in controversy. Eor No. 1 the verdict and judgment were rendered for
From the course of argument in this Court we infer the point of dispute between the parties, turns mainly upon the question as to the actual possession by inclosures, of James Morrison and those claiming under him, including the defendant. The plaintiff asked two prayers, which were granted, and. the defendants five prayers, all of which were refused. By the plaintiff’s first prayer the jury was' instructed that if they believed from the evidence Lot No. 3,905 was correctly located, the plaintiff is entitled to recover whatever portion of the land in controversy the jury shall believe “ has not been held by the defendants or one of them, and those under whom he or they claim, for twenty consecutive years before the bringing of this suit, by a real and substantial indosure, which was during said period an exclusive, continuous and adverse possession, by inclosure.” Two objections are made by the appellants to this prayer :
1st. That it fails to submit to the jury the facts necessary to show the plaintiff’s title.
2d. That it lays down incorrectly the law with regard to the adverse possession necessary to he shown in order to bar the action. In disposing of the first objection it is necessary to refer briefly to the plaintiff’s evidence of title contained in the hills of exceptions. This consisted of
2nd. Thomas Johnson’s will, dated 4th July, 1818, proved in December, 1819, devising Lot No. 3,905 to his son Joshua Johnson, and his grandson Thomas J. Graham, each one half thereof.
3d. Deed of January, 1833, from John Graham, trustee, conveying to the plaintiff the title and estate of Thomas J. Graham; this deed purports to have been made under the authority of a decree of Frederick County Court, sitting in Equity, which is referred to in the deed.
4th. Deed of August 3d, 1858, from William J. Eoss, executor of the will of Joshua Johnson, deceased, conveying to the plaintiff, the title and estate of Joshua Johnson ; with this deed was offered in evidence the record of Joshua Johnson’s will and of the proceedings of the Orphans’ Court, showing the executor’s report of sale and its final ratification. Neither the will nor the record of the Orphans’ Court is set out in the bill of exceptions ; nor the decree and other proceedings of Frederick County Court, under which' Graham, the trustee, acted. These were, of course, essential to be shown, in order to establish the validity of the deeds from Graham, the trustee, and Eoss, the executor ; no exception, however, was taken to the admissibility of the deeds in evidence ; and in the argument of the cause in this Court the counsel for the appellants admitted the regularity of the chancery proceedings, the power of Graham, the trustee, and the power of Eoss, the executor, to execute the deeds to the plaintiff offered in evidence. In the face of those admissions the appellants’ objection must be considered merely formal. The prayer fails to submit to the jury “ to find whether or not the patent was granted of the lot, whether the will of Thomas Johnson was executed and conveyed it, whether the chancery proceed
“ The Court of Appeals shall in no case decide any point or question which does not appear by the record to have been tried and decided by the Court below ; but no prayer or instruction shall be deemed defective by reason of any assumption therein of any fact by the said Court, or because of a question of law having been thereby submitted to the jury, unless it appears from, the record that such objection was taken at the trial.”
The construction of this Act has not been distinctly settled. In the M. & C. C. of Balt. vs. Poultney & Trimble, decided at April Term, 1866, it was held that where the Court below submitted to the jury to find a fact, of which there was not evidence legally sufficient, it was error and ground for reversal; the Act of 1862 having no application to such a defect.
The present case seems to us to come within its provis
The second objection of the appellants to the plaintiff’s first prayer presents the question of adverse possession. On this subject the law is well settled by aseries of decisions in this Court. See Armstrong vs. Risteau, 5 Md. 256, 270; Hoye vs. Swan, 5 Md. Rep., 237; Casey vs. Inloes, 1 Gill, 430, 490; Morgan vs. Slider, 22 Md. Rep., 267, 269, 270, 274.
Twenty years continuous, exclusive, adverse possession by actual inclosure, by the defendants or one of them and those under whom they claim, will bar the action, and this we understand to be the proposition contained in the plaintiff’s first prayer. We do not construe it as requiring possession for that length of time to have been held both by the defendants and those under whom they claim. Such possession for that period either by James Morrison, the grandfather, or by him and those claiming under his will, would defeat the action. The plaintiff’s second prayer is not open to the objection, that it assumes the facts essential to establish the plaintiff’s title; that objection ought to have been taken below ; the observations we have made on this subject in considering the first prayer being alike applicable to this.
We think, however, it was erroneous in stating that the possession must not only be by actual inclosure, but that the inclosure must be continuous. Such instruction, in view of the evidence, was calculated to-mislead the jury — actual inclosure is necessary ; but the fences might have been partially removed at different periods, to enable
The legal propositions contained in the first and second prayers of the defendant's are correct and ought to have been granted. The defendants’ third prayer ought also to have been granted, there being some evidence in the cause for the consideration of the jury, tending to prove the facts therein stated. The fourth and fifth prayers raise the same questions as are presented by the first and second bills of exceptions and relate to the admissibility of evidence. Before the passage of the Act of 1852, ch. 177, (Code, Art. 75, s. 57, &c.,) a witness not sworn on the survey and who did not point out to the surveyor a line or object located on the plots was incompetent to testify at the trial, with reference to the location of such line or object. Stoddert vs. Manning, 2 H. & G., 147. By that Act, sec. 7, it is provided, “ That the plots and certificates of survey in every case may be amended at bar, and objects to which the proof applies may be placed on the plots, and witnesses may be examined who tvere not sworn on the survey.” * * * * * * Provided the Oourt shall be satisfied the ends of justice will be attained by such amendment of plots and. admission of Avitnesses.” According to our construction of this section, it merely dispenses Avith the necessity of having a witness siuorn on the survey in order to mate him competent to testify at the trial; but does not render a witness competent to give evidence at the trial Avith regard to the location of any object upon the plot, who Avas not upon the survey at all. To allow such testimony Avould lead to the greatest confusion and uncertainty.
The object of location is to give certainty to the claims and pretensions of the parties and-prevent surprise. Mundell vs. Perry, 2 G. & J., 205.
This would he defeated by permitting a witness to be examined in Court who was not present at the survey, and did hot point out to the surveyor the objects, the location of which is to be proved at the trial. The words of the Act of 1852 do not require us to adopt the construction contended for by the appellee’s counsel, and we think -the fourth and fifth prayers of the defendants ought to have been granted. As the case must he sent down for a new-trial, it is proper to say that we affirm the ruling of the Circuit Court on the plaintiff’s exception.
Judgment reversed and procedendo ordered.