10 Md. 129 | Md. | 1856
delivered the opinion of this court.
This is an appeal in an action of ejectment. The plaintiff having shown a'perfect title upon paper, rested his case. The defendant places his.claim to title to the lands in controversy, upon1 the evidence of possession set out in the record, and relied upon' under the act of 1852, chap. 177, sec. 2. Our first duty then is, to ascertain the meaning and legal effect of this section. The provision in question is, “actual enclosure shall not be necessary to prove possession^ but acts of user and ownership other than enclosure, may be given in evidence to the jury to prove possession.”
It is clearly not within the scope of the legislative power, to give to a law the effect of taking from one man his property and giving it to another, by any new rule of tenure, retroactive in its character. Therefore the legislature • could not say, by a retroactive act, that the mere possession of a tort feasor, without actual enclosures, could divest the real owner' of his title, and the reason is, that the law having been different, the real owner relied upon it as his protection, and took no steps, as he might otherwise have done, to defeat a result which could not have been foreseen under the law, as it stood previous to the new rule. If a party should permit another to occupy his land by enclosures, under an adverse claim, for more than twenty years, his title is gone. This results, because the law announces, that every man holds his land subject to have his title defeated in the manner indicated, and if he does not gue~d
Notwithstanding the broad language used, we do not understand this court as intending to go further, in the casé of Warner vs. Hardy, 6 Md. Rep., 525, tha: That was a question of possession uh the bearing on this point, of the act, wj slitution, was not raised.
It is equally clear that it was With! lature, to alter and remodel the rulá dies, to which parties claiming title might resort, and therefore a law would be constitutional which merely declared that, evidence which would be sufficient to support a claim to title in equity, might be made availing for the same purpose at law. Hence it follows, that if the defendant in this case has show‘n a claim to this land which equity would recognise and enforce, the legislature might properly say, that the same evidence might be used in an ejectment, and that Upon such a claim or foundation shch acts of possession as those which are enumerated in the act of 1852, might be relied upon to support title. The casé then resolves itself into these two questions, namely, 1st, Has the defendant .proved a sufficient possession to gratify the requirements of the law generally, and especially of the act of 1852; and 2nd, Has he shown such an equitable claim, or color of title, to the land, as to support the acts of possession, as now set up and relied on as giving title? eme>f land;
The defendants’ case mainly rests upon the evidence of Rawl
After having stated the claim of title under which he alleges to have gone into the possession of this lot, he says, that in 1831,1832 or 1833, “he took possession of the two lots and held them up to the time he sold them to Armstrong,” which was on the 29th of March 1850. Possession being' a question of law to be determined by the court, upon the facts in the cause, and that being the very point at issue in this action, it was not competent for the witness to assume to decide it by stating that he took possession, &c. He should have stated the acts which he did, and which he supposed amounted in law to taking possession, and permitted the court to pass upon them. This statement, therefore, was not evidence to go to the jury. The subsequent testimony of the same witness, upon his cross-examination, as to the manner-in which he took possession, is not subject, it is true, to the same objection, still it is insufficient to show such possession as was contemplated by the act of 1852.
It consisted simply in offering to sell the lots, going upon and walking over them, and locking up the house and taking away the key. Independent therefore of the testimony of Rawlings, we are to ascertain whether there is sufficient evidence in the record, to show an adverse possession for upwards of twenty years, consisting of “acts of user and ownership?” The additional evidence upon this point, shows occasional cutting of timber from the lot, by permission of the alleged owner, his assertion of ownership of the property, and that the lots were known in the neighborhood as Rawlings’ property. Upon this last point, however, the evidence is contradictory, for some oi .the witnesses in the neighborhood affirmed, that the lot in question was known as Thistle’s lot.
As the act of 1852 is in contravention of the common law, we are not disposed to give it a very liberal construction. Possession thereforfe claimed under it, must be proved with clear
It is not pretended that any one was put in actual possession,
Having determined that the acts of Rawlings prior 1835, were not sufficient to amount to possession, under the act of 1852, we are relieved from the necessity of passing any opinion upon the question, whether Rawling’s claim or title to the land was sufficient to support acts of user and ownership, and to rescue him from the character of a mere tort feaser: in other words, whether he had an equitable or colorable title?
The only remaining point is, the sufficiency of the plaintiff’s prayer. The court being under no obligation to suggest prayers or instructions to counsel, might well have yejected the plaintiffs’ prayer, upon the ground alone of its having been too general, and if appealed from, whatever merits might have been discovered in his case, this court would have been confined to the questioyi of the sufficiency of the prayer, and constrained to affirm the ruling thereon. Upon this subject, this court will in future adhere to the law, as announced in the cases of Tyson vs. Shueey, 5 Md. Rep., 540, and Hatton vs. McClish, 6 Do., 407. But the court did not confine, itself to file mere rejection of the prayer, but pyoceeded to volunteer an instruction, which is not otfiy usual, but eminently proper, embracing its views of the law, and from this an appeal was also taken. Tfie questions which we' have discussed in the preceding part of this opinion, arise out of the instructions given by the court, which, as we have endeavored to show, were erroneous.
Judgment reversed and procedendo awarded.
In the case of George P. Thistle and others, vs. Francis Hammers, which was an ejectment by the same plaintiffs for lot No. 3980, the facts of which. are substantially the same as in the preceding case, and was argued by the same counsel^ Mason J., delivered the opinion of this epuyt,
Judgment reversed and procedendo awarded.