68 Md. 402 | Md. | 1888
delivered the opinion of the Court.
This is an action of ejectment brought by the appellants against the appellee for a lot of ground containing about three acres. The appellee took defence on warrant, and surveys were made ; but no question of location seems to have arisen. The appellants claim under mesne conveyances from the heirs-at-law of David Shriver, who died in 1853, leaving certain heirs-at-law, all of whom resided out of the State. The defendant claims hy parol gift from David Shriver, the intestate ancestor of the plaintiffs’ grantors, alleged to have been made in 1851, followed by possession continuously by her, which possession, as against these appellants, is now set up as adverse, and as an effectual bar to this suit; as it is alleged to have continued for a period exceeding twenty years. As both parties claim under David Shriver, the Circuit Court properly ruled that neither could deny David Shriver’s title, and no exception was taken to that instruction.
The Circuit Court was asked to instruct the jury, that “the defendant has given no proof legally sufficient to prove title in her hy adverse possession or otherwise,” but this instruction the Court refused to give,, and the controlling question in the case is whether this ruling was correct; and whether the instruction the Court did give touching that matter was justifiable.
The Court framed and gave two instructions as follows :
“1st. If the jury find from the evidence in this case that the defendant was placed in possession of the lands in controversy in this case by David Shriver, at a time when he*414 was owner thereof, with the understanding between them that the defendant was to hold, use and occupy them as a home, and as the owner thereof, and that the defendant entered into possession thereof with that understanding and intent, and has occupied the premises continuously from the time of such entry for twenty years or more before the institution of this suit, then the plaintiffs cannot recover.”
“2nd. But if on the other hand the jury find from the evidence that the defendant was placed in possession of the said premises by the said David Shriver, only to take care of them or to occupy them for the benefit of said Shriver, or only to hold the same as a home until such time as he, the said Shriver, should withdraw such permission, or for any other purpose than to have, use and occupy them as her own, then the plaintiffs are entitled to recover ; provided the jury further find that the said premises are within the lines of the plaintiffs’ deeds from and through David Shriver, read in evidence, and that said deeds are properly located on the plats.”
To the granting of the first of these instructions by the Court the appellants specially excepted, because the Court left to the jury to find whether David Shriver made a verbal gift of the premises to the defendant, which was claimed to be a question of law, and secondly, because there was no evidence legally sufficient to establish a parol gift, or to show a disseisin of David Shriver of the premises in controversy ; “ and, because there was no evidence that there was an understanding with the defendant and David Shriver, that she was to occupy the premises as a home and as the owner thereof.”'
We think the Court fell into error in giving the instructions quoted in lieu of the second paragraph of the plaintiffs’ prayer which has also been recited. It is certainly not the law in Maryland, that a party can acquire title, which is maintainable at law, by parol gift followed by
The whole evidence in support of the appellee’s defence was her own statement as a witness in her own behalf. She says, “ Uncle David Shriver told me to go there and live and take care of the property, and not to go away and leave it as Brady had done; William Shriver was afterwards surveying on the island and told me not to be frightened; I have lived there since 1852, and built the house that is there now, and have paid taxes since 1870. Mr. Walsh told me he had bought the property when he came there just before the wharf was built; I told him. I was sorry because David Shriver had given it to me for a home. Mr. Walsh told me he was going to build a wharf, and it would be noisy then, I had better select a lot elsewhere; he would give me a home; I told him I did not mind noise ; I had been employee! by David Shriver eighteen years; swept out the bank; he paid
Upon this state of facts the Court below ruled on the theory that the possession of the defendant was under color of title, and therefore adverse. It was error to suppose that there was any color of title; or that the possession was adverse. “Adverse possession, by color of title” this Court says in Baker vs. Lessee of Swan, “is made out by the co-existence of two distinct ingredients; the first, such a title as will afford color; and secondly, such possession under it as will be adverse to the right of the true owner; and whether these two essentials exist are, in all cases, questions of law to be determined by the Court, though the facts upon which they are founded are for the finding of the jury. Hence, when the facts exhibiting the title, and the possession under it, are shown, the Court will determine whether color exists, and the possession be adverse.”
The title relied on was a parol gift, and the possession given was not such as to indicate a purpose to give the defendant a fee; and the possession enjoyed was not such as to establish an adverse title. Although a parol gift followed by possession will not give a legal title, equity will interfere, in some cases, and enforce specific performance, where the proof is clear and satisfactory, that the donor did agree to give, and did induce possession to be taken, and large expenses to be incurred in improvements, as if the property had actually been conveyed. But in such case the interference is on the ground of equitable consideration in the outlay, and to prevent the consummation of a fraud. The case of Hardesty vs. Richardson, 44 Md., 617, was one of that character, and in it the whole question of when and to what extent equity will relieve, is there fully discussed and the authorities collected and cited. Upon the evidence of this defendant herself, a Court of equity could not and would not enforce a specific perform
From what we have said it is clear, that the plaintiffs’ first prayer ought to have been granted without modification, that the Court’s own instructions were erroneous. The granting of the plaintiffs’ first prayer unmodified makes the second prayer of plaintiffs unnecessary, and we need not therefore examine it, nor their third and fifth prayers.
In rejecting the fourth prayer of the appellants the Circuit Court, in our opinion, erred. That prayer asked the Court to say that the defendant was estopped by the ejectment proceedings in No. 146, Trials, Oct. Term, 1870, of the Circuit Court for Alleghany County, (wherein the defendant was defendant in possession,) from denying the right of possession to the parcel of land recovered in that suit, “for and during the term of twenty years, the demise laid in the declaration.” In that case this defendant was also defendant, and was notified and appeared by counsel
It follows that whilst the Court erred in rejecting the-plaintiffs’ fourth prayer because it only asked, that the defendant be declared estopped by the judgment in the former case from denying the right of possession to the property in controversy, and recovered in the former case,.
This was not a case in which there was really a controversy over lines and the proper location of land, and it may be very doubtful whether it was a proper case for the allowance of defence on warrant. The 53rd section of Article 75, prohibits the issuance of a warrant of resurvey in actions of ejectment, unless the Court is satisfied there •is a dispute as to the location of the land claimed in the action. In this case both parties claimed under David Shriver, and the only question was which had the better title. If the deeds were of such general import as to include all the real estate of David Shriver, or of such description as plainly to include this parcel of land, of course no warrant •of survey was necessary. We do not know for these deeds are not in the record. Under the defence on warrant the defendant only located her possession by enclosure. The plaintiffs located various papers by actual survey in part; and by protraction in part; and there was no counter location according to the record. There was evidence, says the record, tending to show the correctness of the plaintiffs’ location. The record contains none to the
It only remains to consider the question raised in the first bill of exception. In the former ejectment suit, after the defendant’s attorney had struck out his appearance a judgment by default had been rendered. This judgment ■the defendant afterwards by other counsel moved to be-stricken out. This motion was heard on the petition and affidavit of the defendant, the answer and affidavit of the plaintiffs, certain affidavits of two other persons made before a justice of the peace. The affiants whose affidavits-were then filed are now dead, and those affidavits, which are with reference to certain adpiissions of the defendant, were offered by the plaintiffs as evidence in this case, but vrere not admitted. There was no error in their exclusion. They were used it is true upon that motion, so far as-appears, without objection,' but they were ex parte affidavits, and were not taken under order from the Court, oías far as appears, after notice to the other side, so that the right of cross examination might have been exercised. To make such evidence admissible it is imperatively necessary that the opportunity for cross examination must have been enjoyed, whether availed of or not. Upon the authorities they would not seem to have been admissible. 1 Taylor’s Ev., 435.
Judgment reversed, and new trial ordered.