129 A. 21 | Md. | 1925
This case grows out of the same controversy as that just considered in the case of Pratt D. Phillips and others v. JacobE. Taylor and Hannah A. Ross. It is an appeal by Mrs. Ross from a verdict and judgment against her by direction of the court, in her suit against Phillips Brother for trespass in going upon the land in which she claims a half interest and cutting the timber from it under a contract with Jacob E. Taylor alone. The evidence bearing on the whole controversy is to some extent divided between the records in the two cases; and there is in this record evidence that Taylor has for the last twenty-eight or twenty-nine years cut his firewood from this woodland tract, and has paid all taxes on it. As a consequence of these facts, it was contended, Taylor acquired sole ownership by adverse possession even if Mrs. Ross did inherit a one-half interest. We have already decided that the property was not included in the devise to Taylor in the will of Isabella Taylor, the mother; and the evidence seems to us insufficient to support the contention that Jacob E. Taylor has since acquired title by possession adverse to his sister's ownership? Possession by one such co-tenant is, in contemplation of law, possession by the other also, and it is necessary to prove an actual ouster to rebut this presumption and establish adverse possession in the one. Israel v. Israel,
Can Mrs. Ross, then, maintain an action of trespass for injury to her interest in the land and timber. The contract was for cutting "all the growing timber and wood of every kind and description," and the evidence is that all the merchantable lumber was cut off; and this might be taken as sufficient to constitute a trespass against the rights of a co-tenant who did not consent to it. See authorities collected in 13 Ann. cases, 307, and 2 A.L.R. 986, 993. It has been observed in the interpleader case of Phillips v. Taylor, supra, that when Mrs. Ross' duly constituted attorney went on the land at the beginning of the cutting, to protect her interests, he made no objection to having the timber, or any part of it, cut off the tract, but, on the contrary, gave warning to the contractors that Mrs. Ross claimed a half interest in the timber and in the proceeds of the sale of it, and that the contractors would at their peril pay more than half to Taylor. As has been said, we think this estopped Mrs. Ross from later disavowing the act of her cotenant and pursuing the contractors as trespassers.
All the evidence of the facts which result in this estoppel, however, is contained in the record of the interpleader suit, and none of it was produced in this case. On the record before the court there was no estoppel, and no defense to the suit for trespass, once it was determined that Mrs. Ross owned a half interest in the property. The action of the court below in directing a verdict for the defendants on the *169
evidence before it was, therefore, in our opinion, erroneous. But as on a retrial the adjudication in the interpleader suit, against the rights of the plaintiff to disavow the contract and proceed in opposition to it, would prevent any other verdict than that already entered against her, we have concluded that the judgment below should be reversed, but that no new trial should be awarded. Steam Ferry Co. v. Mariner,
The record presents twelve exceptions by the appellant to rulings on the admissibility of evidence, but none of the rulings affected the grounds which, as we see it, are decisive of the case, and therefore, discussion of them would be profitless. We find no reversible error in them.
Judgment reversed without a new trial, with costs toappellees.
