84 Md. 282 | Md. | 1896
delivered the opinion of the Court.
This is an action of trespass quare clausum fregit. To the declaration, which contains six counts, the defendant pleaded that he did not commit the wnong alleged ; second, liberum tenementum; and third, that the land mentioned in the narr. was not, at the time the alleged trespasses were committed, the land of the plaintiff. He then took defence on warrant. Issue was joined on the first and third pleas, and by way of replication to the second plea the plaintiff new assigned. To the replications new assigning, the defendant rejoined that he did not commit the wrong alleged. The record contains five bills of exception, three of which embody rulings of the Circuit Court for Dorchester County on questions respecting the admissibility of evidence, and two bring up for review the action of the lower Court upon the several prayers for instructions to the jury.
The plaintiff offered in evidence sundry conveyances to establish his title to the locus in qtio and adduced testimony relative to the alleged trespasses and as to his continuous and adverse holding, and then closed his case ; whereupon the defendant, to show that the plaintiff had no title to the locus in quo, offered in evidence several deeds of conveyance and the record of proceedings in an equity case between the heirs at law of Silas Fleming and the administratrix and heirs at law of one Alexander H. Hurley. To the admissibility of these deeds and equity proceedings the plaintiff objected on grounds which will be stated in a
The lands owned by both the plaintiff and defendant are adjoining parcels, and at one time formed one tract which belonged to Silas Fleming. Upon the death of Fleming proceedings were had, under the act to direct descents, to lay off and partition his real estate. In this partition a lot designated No. 2 and embracing all the land now in controversy was allotted to Alexander H. Hurley in right of his wife, Sarah Jane Hurley, who was. one of the heirs of Silas Fleming. The value of the land thus allotted exceeded the share to which Sarah Jane Hurley was entitled, and for the amount of this excess Alexander H. Hurley gave his notes. Subsequently Hurley and his wife sold a portion of this property to Thomas Storr, who died before receiving a deed therefor. After the death of Thomas Storr, Hurley and wife conveyed the portion so sold to Thomas Storr, to Storr’s two sons, John H. and William W. Storr. Later on John H. Storr and wife conveyed John H. Storr’s undivided half interest to the plaintiff, William W. Storr. In 1876 the heirs of Fleming, other than Mrs. Hurley, filed a bill in equity against Storr and others to enforce the lien of the notes given by Hurley for the above mentioned owelty of partition, and the land so conveyed to William W. Storr was sold under the decree passed in the said equity proceedings and at the sale was purchased by the plaintiff. The sale was ratified and the trustee conveyed the land to the purchaser, and under an order of the Court one of the commissioners who had made the partition of Fleming’s real estate also executed a deed to the purchaser. After producing evidence tending to prove that the plaintiff had held the land in controversy under a claim of ownership for more than twenty years, the plaintiff closed his case. Thereupon the defendant offered in evidence the record of proceedings in an equity case instituted in 1869 by the heirs of Silas Fleming (other than Sarah Jane Hurley) against
With respect to the first and second reasons assigned against the admissibility of the proposed evidence, it is only necessary to say, that if available at all, they ought to have been invoked at the close of the case by way of an instruction to the jury, or upon a motion to strike out. As each party has the right to offer his evidence in the order he may see fit, and as he cannot present the whole of it at one and
With respect to the third ground of objection to the admissibility of the record evidence offered by the defendant,
The fourth and fifth relate to the prayers. The plaintiff presented eight and the defendant two prayers. 'All of the plaintiff’s, with the exception of the second, third and seventh, were granted. The defendant’s first was conceded and his second was granted. The plaintiff, in the fourth bill of exceptions, complains of the rejection of his second, third and seventh prayers ; and in the fifth bill of exceptions, he insists that there was error in granting the defendant’s second prayer.
The plaintiff’s second and third prayers were properly refused, because they were both fully covered by his first, which was granted ; and his seventh being in substance and effect the same as his fifth, was for that reason rightly refused. Where the whole law of a case has been passed upon, and has been fairly submitted to the jury in the instructions actually given, a refusal to grant other prayers, which reiterate the same principles, though couched in different words, is not erroneous. Instructions are intended to give to the jury, a clear and concise statement of the law governing the case. The duplication of instructions has a tendency to mislead or confuse, rather than to guide the jury, and thus to frustrate the very object intended to be accomplished by their being given at all.
There is no error in the fifth exception. The instruction complained of told the jury that if they found the land in dispute was within the lines of the defendant’s deeds, and that if the defendant for his own purposes erected a fence within his lines, that then such “ fence is not an enclosure of the plaintiff and does not afford evidence of adverse possession in the plaintiff by enclosure.” This is self-evident. An actual enclosure though not necessary to prove possession (Code, Art. 75, sec. 76) is, when erected by a party re
Finding no errors in the rulings excepted to the judgment appealed from will be affirmed.
Judgment affirmed with costs in this Court and in the Court below.