Alexander v. Walter

8 Gill 239

• Court: Court of Appeals of Maryland
• Decided: July 1, 1849
• Status: Published

Opinion

Martin, J.,

delivered the opinion of this court.

The first question presented for our examination by this record, is, whether the court below erred in deciding that the proceedings in the ejectment of Merryman’s Lessee, against Smith, estop the defendants in this case, from denying the possession of Philip Walter, of the premises in controversy, at the time when such ejectment was brought?

When this case was before the Court of Appeals in 1844, 2 Gill, 204, the character of the judgment rendered by Baltimore county court, in the ejectment cause to which we have reference, was considered; and it was then held by the court, that it was not to be treated as a statutory judgment, under the act of 4 Geo. 2, ch. 28, and vested no title in Mrs. Alexander, then Miss Merryman, and constituted no bar to the appellee’s right to recover the demised premises. The language of the court is :

“To give to this judgment the efficacy ascribed to it, it must appear to this court to be a judgment rendered under the statute of 4 Geo. 2; or in other words, the record must disclose such facts and circumstances as would justify us in believing or assuming, that in rendering its judgment, the court below designed to exercise the authority conferred on it by the statute. The record before us discloses nothing which could warrant ns in any such assumption or belief. All the proceedings in ejectment; until long after the judgment, show it t,o have been an ordinary case of ejectment, (having no connection with the statute,) the judgment in which, is conclusive upon nobody.”

In the proceedings in this ejectment of Merryman's Lessee, vs. Smith, an affidavit was filed by Sarah Rogers Merryman, the lessor of the plaintiff, in which she deposed : “that at the time of issuing the declaration, and before the time of serving a copy of said-declaration on the tenant in the possession of the premises, in said declaration mentioned, there was and is now due, and in arrear to the said Sarah, as landlord of said premises, the sum of $300, for three years’ rent of said premises ; and the further sum of $49.50, balance due, and in arrear for one other year’s rent thereof ; and that at the time of serving the copy of the said declaration on the tenant in possession of the premises, in said declaration mentioned, she was, and now is, landlord of said premises, and that the said Isaac J. Smith was the tenant in the possession thereof; and that she then had, and now has power to re-enter on said premises for non-payment of said rent; and that at the time, and before said ejectment was served, no sufficient distress was found on said premises, and countervailing the arrears of rent then due to this deponent.” This affidavit was sworn to on the 3rd of February, 1824. And the propositions presented for our consideration on this branch of the case, is, whether the proceedings in this ejectment are to be regarded as an estoppel, as matter of record, or as an estoppel in pais standing upon the affidavit, so as to preclude the appellants from showing by evidence, that they were in the possession of the demised premises, antecedent to the 17th of March, 1823, the period at which the ejectment was instituted ?

It is impossible to maintain that the proceedings in the ejectment are to be treated as an estoppel by the record. Irrespective of all other objections, they are deficient in the indispensable ingredient of mutuality. Philip Walter was not a party to the suit in which the judgment by default was rendered. He had no connection or privity with Smith, the tenant in possession. So far from being represented by Smith, their titles were conflicting and antagonistical; Walter professing to claim under the original lease, and Smith holding the property, so long as he retained it, as the immediate tenant of Mrs. Alexander. The Court of Appeals, in 2 Gill, 204, decided that it was not competent for the appellants to rely upon this recovery in the ejectment, in the case of Merrymanks Lessee, vs. Walter, as a conclusive bar against the right of the appellees to recover the demised property in this action, and the rule of reciprocity upon which this doctrine of estoppel stands, forbids the appellees from using it as an. estoppel against the defendants. The authorities upon this point are uniform and conclusive.

In Viner’s Abg. tit. Estop., sec. A, 2, the law of estoppel is thus laid down. “Every estoppel ought to be reciprocal, that is to bind both parties, and this is the reason, that regularly a stranger shall neither take advantage, nor be bound by the estoppel, privies in blood as the heir, privies in estates, as the feoffee, lessee, &c., privies in law, as the lord by escheat, &c. Shall be bound and take advantage of estoppels.”

In the case of Gaunt vs. Wainman, 3 Bingh., N. C., 69, the assignees of the demandant’s husband, who was a bankrupt, conveyed the lands in controversy to the tenant as freeholder. It was a writ of dower, and the question was, whether the defendant who claimed under the deed, was estopped from showing that the premises were leasehold ?

Tindal, C. J., ruled it to be no estoppel. He said, “As between the parties to the deed, there may be an estoppel; but it is set up against a stranger to the deed. Suppose the tenant had bought the premises as leasehold, would the demandant be estopped to say that they were freehold ? This is a case in which the defendant is not precluded from showing the rea! nature of the estate. According to Coke Lit., 352, a,, every estoppel ought to be reciprocal, that is, to bind both parties, and this is the reason that regularly a stranger shall neither take advantage, nor be bound by the estoppel.”

In Lansing vs. Montgomery, 2 John. Rep., 381, an action of trespass was brought by Montgomery against two defendants, Lansing and Goeway. Goeioay pleaded a former suit, and a judgment in his favor, to which file plaintiff demurred, and judgment was given for the defendant. Lansing, the other defendant pleaded the general issue. It was held by the court that the plaintiff was not estopped by his demurrer to the plea of Goeway, from replying to the plea of Lansing, and going to trial on that issue; upon the ground that Lansing was not a party to the demurrer, “and one that is not bound by, cannot take an advantage of, an estoppel.”

In Hurst's Lessee, vs. McNeil, 1 Wash. C. C. Rep., 70, the defendant’s counsel offered (o read in evidence to (he jury, the record of a trial between the lessor of the plaintiff and one Pemberton. The evidence was ruled to be inadmissible. Mr. Justice Washington said, “If there be a point completely settled and at rest, it is this, that a verdict between different persons cannot be given in evidence in a suit of one of the parties against a stranger.”

Lord Coke, in his twenty-first reading on fines, says, “estoppel is reciprocal; for he that shall not be concluded by the record or other matter of estoppel, shall not conclude another by it; except in the case of the King, and that depends upon his prerogative.” This passage isquoted by Mr. Justice Bayley, in Doe vs. Martyn, 8 Barn. & Cres,, 497, where he clearly enunciates the principle, conclusive upon the point we are now considering, that estoppels must be reciprocal, that they operate only on parties and privies, and that they can be used neither by, nor against strangers.

We have already seen that the affidavit of the 3rd of February, 1823, filed by one of the appellants, as the lessor of the plaintiff, in Merryman's Lessee, against Smith, states that Smith was, at the time a copy of the declaration in the ejectment was served upon him, that is, on the 17th of March, 1823, the tenant in possession of the premises in dispute; and this affidavit, containing as it does, the declarations of a party to the record in the present suit, was unquestionably admissible in evidence as an element in the testimony introduced into the cause, to be considered and weighed by the jury, with respect to the question as to the period at which the appellants first entered into the possession of this property. The counsel for the appellees has,-however, contended that the admission embodied in lliis affidavit, operates as an estoppel in pais; is conclusive in its character, and precludes the appellants from proving that, they took possession of the premises in controversy, prior to the time when the ejectment of Merryman’s Lessee against Smith was brought. The solution of the question thus raised by the argument of the counsel for the appellees, depends upon authority, and we are satisfied, after a careful examination of the prominent cases upon the subject, that his proposition cannot be maintained.

The doctrine upon this point is correctly staled by the court, in the case of The Welland, Canal Company vs. Hathaway, 8 Wend., 483. The court said:—

“An estoppel is so called because a man is concluded from saying any tiling, even the truth,against his own act or admission. The acts set up in this case, it is not pretended, constitute a technical estoppel, which can only be by deed or matter of record; but it is said they should operate by way of estoppel, an estoppel in pais. Such estoppels cannot be pleaded, but are given in evicence to the court and jury, and may operate as effectually as a technical estoppel, under the direction of the court. m ® *' As a general rule, a party will be precluded from denying his own acts or admissions, which were expressly designed to influence the conduct of another, and did so iniluence it, and when such denial will operate to the injury of the latter. ® * * All the cases in which t he acts or admissions of a party are adjudged to operate against him, in the nature of estoppel, are generally cases where, in conscience and honest dealing, he ought, not to be permitted to gainsay them.”

In the case of Dezell vs. Odell, 3 Hill N. Y. Rep., 215, the. goods of David Mitchell and Alexander Dezell, were seized under an execution, and were delivered to the defendant upon his receipt, stipulating to re-deliver them to the officer by a designated day. They were not surrendered. And in an action of trover instituted by the officer against the receiptor, he offered to prove that the property was, at the time of the levy and receipt, his own. The receipt was ruled to bean estoppel. The court said:—

“We have the clear case of an admission by the defendant, intended to influence the conduct of the man with whom he was dealing, and actually leading him into a line of conduct which must be prejudicial to his interests, unless the defendant be cut off from the power of retraction.- This is the very definition of an estoppel in pais. For the prevention of fraud, the law holds the admission to be conclusive.”

In the case of Presbyterian Congregation of Salem, vs. Williams, 9 Wend., 147, an action of ejectment was instituted by the plaintiffs, claiming to re-enter upon the premises in the possession of the defendant, as tenant, for the non-payment of rent. At the time of the service of the declaration, although there was property upon the land, tire defendant declaimed that it did not belong to him, and that it was exempted by law from being distrained for rent. At the trial, the defendant offered to show there was sufficient property on the premises, out of which the rent could be collected, and that the action could not, therefore, be maintained. The defendant was considered by the court as the real party to the suit, and he was not permitted to controvert his admissions. This was a clear case for the application of the doctrine of estoppel. The plaintiffs were influenced by the representations of the defendant, and acted upon them. In the language of the court, the plaintiffs had a right to rely upon the admission of the defendant, that there was not sufficient property on the premises, liable to distress, to countervail the arrears of rent, and he ought not to be permitted to defeat the action, by showing what he then said was false, and thereby reap an advantage from his own wrong and falsehood.

In Heane vs. Rogers, 9 Barn, & Cres,, 577, an action of trover was brought by the plaintiff (against whom a commission of bankruptcy had issued,) against his assignees, to recover goods, which they, as such assignees, had sold. To prove that the plaintiff was a bankrupt, the defendants introduced a notice addressed, by the plaintiff, to certain persons from whom he had leased an estate, in pursuance to the statute of 6 Geo., 4, ch. 16, sec. 75, offering to surrender his lease, upon the ground that he was a bankrupt. The question was, whether the plaintiff was estopped by the act of having given up his lease to the lessors, from disputing the validity of the commission under which the defendants acted, they not being parties or privies to that transaction? The point was decided in favor of the plaintiff, and we refer to the opinion of Mr. Justice Bayley, as containing a clear enunciation of the doctrine of estoppel, as applicable to the case before us. He said:—

“ There is no doubt but that the express admissions of a party to the suit, or admissions implied from his conduct, are evidence against him; but we think that he is at liberty to prove that such admissions were mistaken, or were untrue, and is not, estopped or concluded by them, unless another person has been induced, by them, to alter his condition. In such case, a party is estopped from disputing their truth with respect to that person (and those claiming under him,) and that transaction; but as to third persons, he is not bound. It is a well established rule of law, that estoppels bind parties and privies, not strangers. The offer of surrender, made in this case, was to a stranger to this suit; and though the bankrupt may have been bound by his representation that he was a bankrupt, and his acting as such, as between him and that stranger to whom that, representation was made, and who acted upon it , he is not bound, as between him and the defendant,, who did not, act on the faith of that representation at all. The bankrupt would probably not have been permitted, as against his landlords, whom he had induced to accept the lease without a formal surrender in writing, and to take possession upon the supposition that he was a bankrupt, and entitled, under 6 Geo., 4, ch. 16, sec. 75, to give it up— to say, afterwards, that he was not a bankrupt, and bring an action of trover for the lease, or an ejectment for the estate. To that extent, he would have been bound, probably no further, and certainly not as to any other persons than those landlords. ’ ’

We have quoted largely from the opinion of the learned judge in this case, as bearing directly upon (he point under examination, and we regard it as a conclusive authority against the proposition advanced by the counsel for the appellee. If a case had arisen between the appellants and Smith, in which it was important to inquire, whether Smith was in the occupation of the demised premises at the lime the declaration in the ejectment was served upon him, the appellants might, with respect to Smith, in such contest, be precluded from disputing the statements in the affidavit. For Smith was a party to the suit in which the affidavit was filed. But this was not the predicament of Philip Walter. He was a stranger to that suit. He did not act upon the admissions contained in the affidavit, and was not injured, misled or deceived by them. And it cannot be said, that it is against conscience and good faith to allow the appellants to abandon the line of defence occupied by them at the former trial, when they relied upon the judgment, in Merryman’s Lessee, against Smith, as based upon the affidavit in conformity with the statute of 4 Geo., 2; and now show, by evidence, as against these parties, that they, in fact, entered upon the demised premises as far back as 1820, under their common law right of re-entry for the non-payment of rent; and had continued in the uninterrupted and adverse possession of the property from that period up to the time of the institution of this suit. The doctrine of estoppel in pais, stands upon the broad grounds of public policy and good faith; it is interposed to prevent injustice, and to guard against fraud, by denying to a party the right to repudiate his admissions, when those admissions have been acted upon by persons to whom they were directed, and whose conduct they were intended to influence; but it has no application to a case like the one now under our consideration. We think, therefore, that the court below erred in granting the plaintiff’s prayer.

We proceed to examine the legal propositions raised by the prayers offered, at the trial below, by the counsel for the appellants.

They asked the court to instruct the jury: First. If the jury shall find that the defendant, Sarah, entered into the pos* session of the premises described in the lease from Daniel Bowley to Solomon Etting, by renting them out, as stated in the testimony, and that there was, under the lease in evidence, one year’s rent in arrear when the possession was so taken, and that she and her husband, Ashton Alexander, have so henceforth kept the said possession, and were, and had been so in possession for more than twenty years before the bringing of this action; and that the plaintiffs claim title under the lease of Daniel Bowley, read in evidence, that the defendant, Sarah, became, by devise from John Merryman, tire owner in fee of the reversion of said Daniel Bowley, arising on said lease, and that said reversion was vested in her at the time of her taking possession in manner aforesaid, at and before the rent aforesaid became as aforesaid in arrear, then the plaintiffs are not entitled to recover. And secondly. If the jury shall find that the defendant, Sarah, entered into the possession in the manner as stated in aforegoing prayer, and that she and her said husband have henceforth continually held said possession, and had so held it for more than fourteen years, when this suit was instituted, and if they shall find the other matters set forth in the above prayer, the plaintiffs are not entitled to recover.

By the terms of the lease from Daniel Bowley to Solomon Etting, of the 21st of December 1798, under which the appellees claim title to the premises in controversy, it is stipulated that if the rent therein reserved, shall be in arrear and unpaid for the space of sixty days next after the time on which the same is to be paid, the same being first lawfully demanded, it shall be lawful for the said Daniel Bowley, his heirs or assigns, into the said demised premises, or any part thereof, in the name of the whole, to re-enter, &c. And the propositions presented in argument by the counsel for the appellants, are: First. That assuming that the facts hypothetically set forth in the prayers to be true, that the jury were bound to presume, from the possession of twenty years, as therein stated, that the defendants had made a regular and lawful re-entry at common law, on the demised premises, for the non-payment of rent, according to the condition of the lease. And secondly. That this presumption was to be deduced as a legal inference, from a possession of' fourteen years.

Upon these points, we have been referred to several cases decided by the Supreme Court of New York, which we now propose to examine.

The case of Jackson vs. Demarest, was decided in 1805, 2 Caine's Rep., 381, and it was there held, that a demand and entry at common law, would be presumed after a possession of fourteen years. Mr. Chief Justice Kent said:—

“ The lessor of the plaintiff and his family abandoned the possession in 1778. In 1785, the landlord had a right to reenter for non-payment of rent, and he then sold the land. In 1789, Kason, under his title takes possession. Here, then, is certainly a fourteen years’ possession, and after that, we wilL presume a regular re-entry at common law. Re-entry is a matter in pais, and not of record.”

In 1808, the case of Jackson vs. Walsh was decided, 3 John. Rep., 226, and it was there determined, that a possession of nine years did not afford a presumption of a re-entry for nonpayment of rent.

In Jackson vs. Stewart, 6 John. Rep., 34, a regular re-entry was presumed from a possession of twenty-two years.

In Jackson vs. Elsworth, 20 John. Rep., 180, it was held, that a possession of ten years was insufficient to warrant the presumption that the landlord had made a regular re-entry for the non-payment of rent. Woodworth, J., said:—

“It is well settled, that the right of the tenant can only he barred by ejectment under the statute. A re-entry at common law does not defeat the title in equity. It is, however, sufficient for the defendant, if a re-entry in either way can be presumed, for then he holds the possession rightfully against the plaintiff.” After stating that, under the circumstances of the case, an entry under the statute could not be presumed, and referring to the case of Jackson vs. Demarest, 2 Caine's Rep., 382, before adverted to, he remarks: “ In that case, which is the shortest period that has been deemed sufficient, the cou rt do not rest the presumption on a re-entry by ejectment under the statute, but at common law, evidently because no presumption of the former could be indulged, so long as the record of recovery was not produced, or some cause assigned for its non-production. Considering that this principle operates in derogation of the grant, I think our courls have been sufficiently liberal, and that a shorter period, if sanctioned, would frequently be productive of manifest injustice. In Jackson vs. Walsh, nine years was held insufficient. The presumption relied on, would derive but little support from an additional year. I am of opinion, that the lapse of time is not sufficient to raise a presumption of re-entry either at common law, or under the statute.”

It appears, therefore, from the adjudged cases in Nev) York, that a possession of fourteen years is (here regarded as the period from which a regular re-entry at common law will be presumed. But the rule thus established by the courts of that State is entirely arbitrary, is not sustained by authority or analogy, and one to which we cannot assent. We think, however, in analogy to the statute of limitations, that if the jury had found that the facts assumed in the first of the defendants’ prayers were true, and that the defendants had been, for twenty years, in the uninterrupted, exclusive, notorious, and adversary possession of the property in dispute, they would have been bound to presume a regular re-entry at common law for the non-payment of rent, and this re-entry being presumed, the defendants would, in legal contemplation, have been regarded as rightfully holding the possession against the plaintiffs. But the vice of the prayer is, that the question of adversary possession was not presented as fact, to be found by the jury. Matthews vs. Ward's Lessee, 10 Gill & John., 458, Jackson vs. Porter, 1 Paine C. C. Rep., 466. Angel on Lim., 413.

Upon this ground, the court were right in rejecting the defendants’ first prayer.

We think, for the reasons already expressed, that the court were correct in rejecting the defendants’ second prayer. Reasoning analogically from the statute of limitations, and the doctrines of presumption as applied to land, a possession for a less period than twenty years, is not, in our opinion, sufficient to warrant the inference, that there was a regular re-entry at common law, for the non-payment of the rent reserved by the lease.

The question raised by the defendants’ third prayer, relates to the validity of the sale made by Thomas Rogers, as the collector of the city of Baltimore, on the 8th of August, 1820, of the property in controversy, to Philip Reigart, in pursuance of the act of Assembly of 1816, ch. 171, and conveyed by Rogers to Reigart, by a deed bearing date the 16th of October, 1820. This property was subsequently conveyed by Philip Reigart to the defendants, on the 1st of October, 1840.

We find from the record, that on the 2nd of November, 1820, an action of ejectment was instituted in Baltimore county court, for the recovery of this property, by Philip Reigart, against Philip Walter, and that on the 10th of June, 1824, this suit was entered upon the docket, “agreed.” This evidence was offered at the trial below, subject to exceptions, and it is now contended, by the counsel for the appellees, that the effect of this entry upon the docket, was to extinguish the legal title of Reigart in the lot for which the ejectment was brought, and operates as a conclusive bar against the defendants who claim under him.

This proposition cannot be maintained. There appears to have been no judgment rendered by the court, dismissing the .suit, upon the foundation of the agreement, as in the case of The Bank of the Commonwealth, vs. Hopkins, 2 Dana, 395; we have no information with regard to the character or terms of this indefinite agreement, and the only deduction to be drawn from it, is, that each party retired from the litigation in which they were involved, leaving their rights precisely as they stood prior to the institution of the suit. In the case reported in 2 Dana, the mere agreement was not regarded by the court as interposing a bar between the parties, but the bar was created by the judgment, dismissing the suit at the instance of the parties, and in consequence of their agreement. In the case before us, there was no such judicial action.

Having disposed of this preliminary objection, we proceed to consider the exceptions taken by the counsel for the appellees, to the validity of this sale. The first point made in the argument was, that the deed from Rogers to Reigaxt, of the 16th of October, 1820, was not evidence of thq factum of the sale. This point is not tenable.

The 3rd section of the act of Assembly of 3 816, ch. 171, imposes upon the collector the duty of collecting the damages apportioned, as required by the preceding sections, by a sale of the property on which the damages are assessed, if the owner shall neglect or refuse to discharge the same, but is silent as to the power to convey, by deed, the property thus authorised to be sold. But the right to convey, is, we think, to be implied from the power to sell. This principle is clearly established by the reasoning of the court, and authorities cited, in the analagous case of Magruder against Peter, 11 Gill & John., 217, If the power to convey is assumed, it is very certain that the deed must be regarded as evidence of the sale; for it is made in pursuance of the sale, and stands upon if. In the case of a sheriff’s sale, the title passes by the sale, and not by the conveyance, and yet the deed of the sheriff has always been considered as evidence of the factum of the sale. In Estep and Hall’s Lessee, vs. Weems, 6 Gill & John., 306, the Court of Appeals said: “That it has been more than once solemnly decided by this court, that, it is the sale of the sheriff, which vests the title in the purchaser, which sale must be proved either by a deed, the sheriff’s return, or by some note or memorandum in writing, in order to comply with the requisitions of the statute of frauds and perjuries.”

And in Jackson vs. Roberts’ Executors, 11 Wend., 426, the chancellor said:—

“A sale under an execution is essential to the transfer of the property, and after the execution is proved to have been in the hands of the sheriff, so ns to authorise the giving of the deed, his conveyance is the legal evidence, under the statute of frauds, of a sale under that execution.”

It is, therefore, very clear, upon the authorities to which we have referred, that, the deed is to be received §s evidence of the sale, but it is not evidence of the regularity of the proceedings preceding the sale, and out of which the power to sell arose. The power vested, in the collector to sell, in this case, is a naked power, specially conferred by statute, under a proceeding ex-parfe in its character, and used for the purpose of divesting a citizen of his property without his consent; and no legal proposition is more firmly established, than that the purchaser who claims under a power of this character, must show affirmatively and positively the regularity of the proceedings out of which it grew, and the existence of all the prerequisites upon which its lawful exercise depended. Williams vs. Peyton’s Lessee, 4. Wheat., 77. Ronkendorff vs. Taylor, 4 Pet., 349.

One of the acts in pais to be proved in this case, by the defendants, as a prerequisite upon which the power to sell depended, was, that the collector had given notice of the sale as prescribed by the 3rd section of the act of 1816, ch. 171; and a fatal objection to the validity of this sale is, that the advertisement relied upon as a matter of sale, in conformity with the requirements of the statute, does not describe, with sufficient certainty, the lot in controversy as a part of the property intended to be sold.

The act of Assembly, in requiring thirty days’ notice to be given, in the newspapers of the city of Baltimore, of the time and place of sale, intended not only to apprize the owner of the predicament of his property, that he might rescue it from the hammer of the auctioneer, by paying the damages charged upon it, but also that the lot should be so definitely and precisely described, that purchasers might, without difficulty, estimate its value, and the property in this way placed in a condition to produce an adequate price.

In this notice of sale, the property in dispute was described as a lot belonging to Philip Walter, and assessed with damages amounting to the sum of $672, situated on the east side of South street, but without designating, by reference to the plot, or otherwise, the dimensions of the lot, or the particular part of the street on which it was located. An advertisement so vague and uncertain in its terms, conveys to the public no reliable information with respect to the value of the property, and has always been regarded as defective.

In the case of Ronkendorff vs. Taylor, 4 Pet., 362, the Supreme Court, when considering what was to be regarded as a sufficient description of property advertised for sale by a collector of taxes, said: —

“That the property should be so definitely described, that no purchaser could be at a loss to estimate its value. It is not sufficient that such a description should be given in the advertisement, as would enable the person desirous of purchasing, to ascertain the situation of the property by inquiry. Nor, if the purchaser at the sale had been informed of every fact necessary to enable him to fix a value upon the property, yet the sale would be void, unless the same information had been communicated to the public in the notice.”

We consider the sale as inoperative upon this ground, irrespective of the other objections which have been urged against it.

It was also insisted by the counsel for the appellees, that the return of the assessors, acting under the 2nd section of the act of 1816, ch. 171, was to be treated as informal and defective, because this lot was not, designated, with sufficient certainty, as a part of the corpus upon which the damages were laid. This objection is insuperable in the present mutilated condition of the plot. But the plot annexed to the return, is to be considered as a part of it, and we think, that if this lot had been located and described upon that plot as the other lots are designated, the return of the assessors would not have been obnoxious to this objection.

It follows, from the views thus expressed, that we think the court below erred in granting the plaintiff’s prayer, and were correct in rejecting the prayers of defendants.

JUDGMENT REVERSED, AND

PROCEDENDO AWARDED.