Chain, J.,
delivered the opinion of this Court.
The plaintiff’s lessee instituted an action of ejectment in Allegany county to recover the several parcels of land named in his declaration. The defendants were served with the notice of the writ, appeared to the suit and pleaded not guilty to the declaration. It appears from the evidence in the record that William Lannon was the owner in fee of the real estate in controversy, and died in possession of the same in 1858, leaving a widow, Winnifred, one ©f the appellants, and an infant daughter, called Mary, his only heir-at-law, who died in February, 1863, intestate, and unmarried. Her father, William Lannon, had three brothers, Michael, Peter and John.- Michael died before William, leaving several children, who are living. Peter and John survived their brother William, and were living at the death of Mary Lannon. Peter and John Lannon on the death of Mary, their niece, claimed all the estate in' controversy as her heirs-at-law and next of kin. John Lannon sold all his interest in the land to [207] his brother Peter, who instituted this action to recover the same. After the writ was served on the defendants they appeared to defend the suit and filed a petition, verified by an affidavit, in which they set forth that they were the tenants in possession of the real estate in controversy; “that Winnifred Elwood was the wife of one William Lannon, and that said William Lannon died seized in his demesne, as of fee in the premises, and left Mary Lannon, an infant daughter, and his only heir-at-law to said premises ; that said Winnifred was appointed guardian to said Mary by the Orphan’s Court of Allegany county, and as such guardian, and in her own right as widow of said William, she remained in possession of the premises during the life of said Mary, who died in Eebruary, 1863, and since that time said Winnifred has continued in possession of said premises, claiming her dower interest in the same, and also as heir to her said daughter, Mary Lannon; and that the defendant, Maurice Elwood, has intermarried with the said Winnifred, and is in possession by virtue of her rights.”
By this admission filed in the cause the defendants distinctly declare that they claim and hold this real estate in virtue of Winnifred’s dower right in the property, as the widow of William Lannon, and as the heir to her daughter, Mary Lannon. They set up no other claim. Peter Lannon, in his own right and as grantee of his brother John, claims the same property as next of kin to Mary Lannon. Both parties claim under the same person, and it is prima facie sufficient to prove the derivation of title from Mary Lannon without producing any patents or deeds to prove the title of William Lannon and his daughter Mary. We consider the admission of a most conclusive character, for it admits the fee simple was in William Lannon and descended to his daughter Mary, who died in 1863. By it they were estopped from claiming the property under any other title. It must also be [208] regarded as an admission made in the course of judicial proceedings for the purpose of showing that the defendants were in possession of the property hy virtue of the defendant Winnifred being the widow of William Lannon and the mother of Mary Lannon, and it would be contrary to good faith to permit a party to controvert the title of him, by whom he has obtained possession. Adams on Ejectment, 261. As both parties claim under William Lannon, there can be no controversy about his title, and the only question for us to determine is, has the plaintiff, by the evidence in the record, shown such a title as to enable him to recover in this action ? Courts of law are controlled by well known principles applicable to ejectment suits, and which are never disregarded. A plaintiff in ejectment must recover by the strength of his own title, and not by the weakness of the title of his adversary ; and it is also essential to enable him to maintain an action of ejectment and to recover the real estate, that he should be clothed with the legal title and the right of possession at the time the action was instituted; the weakness of ■the title of the defendants cannot operate to vest a right and title to the property in him.
In this action he must show affirmatively that he is entitled to recover the property, as heir-at-law and next of kin to Mary Lannon. . There is no evidence in the record of the death of the father of William Lannon, and in the absence of such evidence we cannot assume his death on the ground of legal presumptions. By the law of descents the real estate goes to the grandfather of Mary Lannon, and until his right was. extinguished, or his death proved, the uncles of Mary could not maintain their action. The law of descents gives the real estate of a child, dying 'without descendants, to the father, if the real estate descended from the father; “ if no father living, then to the brothers and sisters of the intestate of the blood of the father and their descendants equally. If no brother or [209] sister, or descendant from such brother or sister, then to the grandfather on the part of the father. If no such grandfather living, then to the descendants of such grandfather and their descendants in equal degree equally.” Code of Pub. Gen. Laws, Art. 47, secs. 4, 5, 6. These are the rules of descent prescribed by the Code, and the appellee must show the descent of himself and the person last seized from some common ancestor, together with the extinction of the rights of all those who were entitled to claim before him. If the grandfather be alive he has the right to the real estate, to the exclusion of Mary Lannon’s uncles. Such being the law, the onus probandi was on the appellee to produce evidence to satisfy the jury that the grandfather was dead.
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Chain, J.,
delivered the opinion of this Court.
The plaintiff’s lessee instituted an action of ejectment in Allegany county to recover the several parcels of land named in his declaration. The defendants were served with the notice of the writ, appeared to the suit and pleaded not guilty to the declaration. It appears from the evidence in the record that William Lannon was the owner in fee of the real estate in controversy, and died in possession of the same in 1858, leaving a widow, Winnifred, one ©f the appellants, and an infant daughter, called Mary, his only heir-at-law, who died in February, 1863, intestate, and unmarried. Her father, William Lannon, had three brothers, Michael, Peter and John.- Michael died before William, leaving several children, who are living. Peter and John survived their brother William, and were living at the death of Mary Lannon. Peter and John Lannon on the death of Mary, their niece, claimed all the estate in' controversy as her heirs-at-law and next of kin. John Lannon sold all his interest in the land to [207] his brother Peter, who instituted this action to recover the same. After the writ was served on the defendants they appeared to defend the suit and filed a petition, verified by an affidavit, in which they set forth that they were the tenants in possession of the real estate in controversy; “that Winnifred Elwood was the wife of one William Lannon, and that said William Lannon died seized in his demesne, as of fee in the premises, and left Mary Lannon, an infant daughter, and his only heir-at-law to said premises ; that said Winnifred was appointed guardian to said Mary by the Orphan’s Court of Allegany county, and as such guardian, and in her own right as widow of said William, she remained in possession of the premises during the life of said Mary, who died in Eebruary, 1863, and since that time said Winnifred has continued in possession of said premises, claiming her dower interest in the same, and also as heir to her said daughter, Mary Lannon; and that the defendant, Maurice Elwood, has intermarried with the said Winnifred, and is in possession by virtue of her rights.”
By this admission filed in the cause the defendants distinctly declare that they claim and hold this real estate in virtue of Winnifred’s dower right in the property, as the widow of William Lannon, and as the heir to her daughter, Mary Lannon. They set up no other claim. Peter Lannon, in his own right and as grantee of his brother John, claims the same property as next of kin to Mary Lannon. Both parties claim under the same person, and it is prima facie sufficient to prove the derivation of title from Mary Lannon without producing any patents or deeds to prove the title of William Lannon and his daughter Mary. We consider the admission of a most conclusive character, for it admits the fee simple was in William Lannon and descended to his daughter Mary, who died in 1863. By it they were estopped from claiming the property under any other title. It must also be [208] regarded as an admission made in the course of judicial proceedings for the purpose of showing that the defendants were in possession of the property hy virtue of the defendant Winnifred being the widow of William Lannon and the mother of Mary Lannon, and it would be contrary to good faith to permit a party to controvert the title of him, by whom he has obtained possession. Adams on Ejectment, 261. As both parties claim under William Lannon, there can be no controversy about his title, and the only question for us to determine is, has the plaintiff, by the evidence in the record, shown such a title as to enable him to recover in this action ? Courts of law are controlled by well known principles applicable to ejectment suits, and which are never disregarded. A plaintiff in ejectment must recover by the strength of his own title, and not by the weakness of the title of his adversary ; and it is also essential to enable him to maintain an action of ejectment and to recover the real estate, that he should be clothed with the legal title and the right of possession at the time the action was instituted; the weakness of ■the title of the defendants cannot operate to vest a right and title to the property in him.
In this action he must show affirmatively that he is entitled to recover the property, as heir-at-law and next of kin to Mary Lannon. . There is no evidence in the record of the death of the father of William Lannon, and in the absence of such evidence we cannot assume his death on the ground of legal presumptions. By the law of descents the real estate goes to the grandfather of Mary Lannon, and until his right was. extinguished, or his death proved, the uncles of Mary could not maintain their action. The law of descents gives the real estate of a child, dying 'without descendants, to the father, if the real estate descended from the father; “ if no father living, then to the brothers and sisters of the intestate of the blood of the father and their descendants equally. If no brother or [209] sister, or descendant from such brother or sister, then to the grandfather on the part of the father. If no such grandfather living, then to the descendants of such grandfather and their descendants in equal degree equally.” Code of Pub. Gen. Laws, Art. 47, secs. 4, 5, 6. These are the rules of descent prescribed by the Code, and the appellee must show the descent of himself and the person last seized from some common ancestor, together with the extinction of the rights of all those who were entitled to claim before him. If the grandfather be alive he has the right to the real estate, to the exclusion of Mary Lannon’s uncles. Such being the law, the onus probandi was on the appellee to produce evidence to satisfy the jury that the grandfather was dead.
We will apply the law as stated, to the prayer of the plaintiff and the prayers of the defendants. We are of opinion that the Court erred in granting the second prayer of the plaintiff, because it did not submit to the jury to find that the grandfather of Mary on the part of the father was dead; unless they found that fact the plaintiff could not recover. And, for the same reason, we think the Circuit Court erred in rejecting the second prayer of the defendants, for until the jury found that the grandfather was dead, there was not sufficient evidence in the cause to prove title in the lessor of the plaintiff to the real estate in controversy. We concur with the Circuit Court in rejecting the first, third and fifth prayers of the defendants. We have said the petition and affidavit of the defendants constituted a solemn admission that the real estate had passed to them from Mary, the infant daughter of William Lannon, who died seized of the same, and they were therefore estopped from denying the title and possession of the party under whom they claimed, for it is a well settled principle that parties are bound by their written admissions made in. the progress of a cause, and cannot repudiate them at their pleasure, [210] as the Courts in England, as well as in this country, have repeatedly decided that admissions made in a cause are proper and competent evidence on a second trial. Doe vs. Bird, 7 Carr. & Payne, 7 ; Jackson vs. Hinman, 10 Johnson, 292 ; Merchants’ Bank vs. Marine Bank, 3 Gill, 96 ; Farmers Bank of Maryland vs. Sprigg, 11 Md. Rep., 389. As hoth parties claimed under the same person, it was only necessary for the plaintiff to prove his derivation of title from Mary Lannon, for the defendants had no right to impeach the title under which they were in possession. 2 Greenleaf on Evidence, sec. 307. The reasons assigned for rejecting, the first prayer of the defendants are equally valid against the third prayer. Both parties claimed under Mary Lannon, and it was unnecessary for the plaintiff to produce any evidence of her title. The defendants in their admissions relied on her title, and they cannot be allowed to gainsay it against a plaintiff who claims under the same title. The defendants’ fifth prayer ought not to have been granted.
The law of descents in Maryland expressly declares that there shall be no representation among collaterals after brother’s and sister’s children. If there were no grandfather living at the time of the death of Mary Lannon, the real estate would have descended to her uncles, to the exclusion of her cousins, the children of Michael Lannon. But the law of descents expressly provides, if there be no grandfather living, then to the descendants of such grandfather and their descendants in equal degree equally. This would effectually exclude the cousins of Mary Lannon. This construction is supported by authority, see Porter vs. Askew, 11 Gill & John., 346 ; Levering vs. Heighe, Adm., 2 Md. Ch. Dec., 81 ; Levering vs. Levering, 3 Md. Ch. Dec., 365.
The view which we have taken of the law of this case, dispenses with the necessity of reviewing the first bill of exceptions, and' passing on the admissibility of the evidence contained in it.
[211] (Decided 13th June, 1867.)
The identity of the lands, and the possession of them hy William Lannon and the defendants, are admitted, and there was no necessity for the plaintiff to introduce proof to establish what was admitted hy the defendants.
We shall reverse the judgment of the Circuit Court with costs, and order a procedendo to he issued.
Judgment reversed and procedendo ordered.