Kershner v. Kershner's Lessee

36 Md. 309, 1872 Md. LEXIS 83

• Court: Court of Appeals of Maryland
• Decided: June 20, 1872
• Status: Published

Opinion

Bartol, C. J.,

delivered the opinion of the Court.

In April, 1860, Andrew J. Kersliner, the appellee’s lessor, filed his bill on the equity side of the Circuit Court for Washington county, against the appellants, claiming to be the owner in fee of the undivided moiety of certain lands therein described, then in the possession of the appellants, praying for a partition of the same and an account of rents and profits. After answer and proof the Circuit Court, upon the hearing, declined to decree until after the title to the land put in issue had been determined at law.

Whereupon this action of ejectment was instituted by the appellee, who declared for an undivided moiety of the lands in controversy.

It appears from the proof that Jacob Kersliner, Sr., on the 5th day of March, 1810, executed his last will, in due form to pass real estate; which, was admitted to probate in the year 1815, in which year the testator died. By the jirovisions of the will all the real estate of the testator situated in Maryland, was devised to his two sons, Jacob and Gustavus, subject to their mother’s dower, and to the payment of certain legacies to his four daughters. After the death of Jacob Kersliner, Sr., the devisees, Jacob and Augustus, entered into possession of the lands, which continued in their joint occupancy till the year 1838, when Jacob died intestate, leaving his only child and heir-at-law Andrew J. Kershner, the plaintiff’s lessor, then an infant about one month old, and a widow named Susan. The widow and infant son remained on the farm, whereon Jacob died, after his death, deriving their support therefrom for about sixteen years, or until the year 1854; when at the instance of Gustavus, they removed to the village of Clearspring, in Washington county. In the year-1859, Andrew J. Kershner arrived at age, and shortly thereafter demanded of his uncle Gustavus his share of the lands so devised and descended, and of the rents and profits. His claim not being admitted, he filed his bill in equity as before stated; and afterwards instituted this action. The theory of the defence was that at March Term, 1820, of Washington County Court, two judgments had been recovered against Jacob Kershner, Jr., at the suit of Andrew Kershner, that writs of fieri facias had been issued thereon to lie, from'term to term, until in 1827 the interest and estate of Jacob Kershner, the defendant in the executions, in all the lands devised to him by the will of his father, were seized by the sheriff and sold to Andrew Kershner, the plaintiff in the judgments. To support this defence, the defendants below gave in evidence the docket entries and papers in Nos. 1C2 and 163 trials, March Term, 1820, being two suits of Andrew Kershner against Jacob Kershner, and judgments therein, one for $611.60 and costs, and the other for $315.69 and costs; with the entries of fieri facias and continuances, down to March Term, 1827, on which are entries, in one case of “Made by sale of real estate,” and in the other “Made $38.34, N. B. balance.” These entries were proved to have been made by the clerk on the clerk’s dockets. Exception was taken by the plaintiff below to the admission of this testimony, but it being proved that the original writs of fieri facias were lost, and could not be found after diligent search, the testimony accompanied by the other facts offered in evidence by the defendants below, was no doubt admissible for the purpose of raising the presumption that the writs of fieri facias corresponding with the docket entries did in fact exist, and were issued to A. Neill, sheriff; that the same were levied on Jacob’s interest in the lands, and that full and due return thereof was made by the sheriff.

We are therefore of opinion there was no error in the rulings of the Circuit Court set out in the plaintiff’s first, second and third bills of exceptions. The primary evidence being lost, it is very clear that the secondary evidence was admissible for the purpose of raising the presumption that a valid seizure and sale had been made by the sheriff. Eor the same reason the sheriff’s advertisement of sale mentioned in the plaintiff’s fourth exception, was properly admitted in evidence; and also the testimony of George Ankeny as to the appraisement of the property at the instance of the sheriff, as stated in the plaintiff’s fifth exception.

We come now to the appellants’ first, second and third bills of exceptions.

These were taken to the action of the Circuit Court in excluding certain evidence offered by the defendants below, and as they all depend upon the same legal principle, they may be considered together. The defendants offered to. prove by Gustavus Kershner, that the rents of the farm on which Jacob liad lived and died, were after his death, paid to Andrew Kershner for ten or eleven years, until Andrew had conveyed by deed his interest in the land. They offered in evidence the deed of the 2d of April, 1849, from Andrew Kershner to William Ditto and Gustavus Kershner conveying the lands in question. And they also offered in evidence certain receipts of Andrew Kershner for rent, dated in 1839 1840 and 1844. The object of this testimony was to prove that Andrew Kershner exercised acts of ownership over the farm; but the Circuit Court excluded the evidence, “ unless the defendants could also prove that Andrew exercised acts of ownership over the land during the life time of Jacob.” It seems to us that this evidence was properly excluded as res inter cilios. It had been shown by the proof that Andrew had claimed or exercised no acts of ownership over the property during Jacob’s life time; such transactions between him and other parties, after Jacob’s death, could in no manner affect the title of Jacob, or of his infant heir.

The fourth and fifth bills of exceptions taken by the appellants, raise the q uestion of the admissibility of the declarations made by the defendant Gustavus Kershner, deposed to by the witnesses George King and David Spickler, as follows — by the former that he lived on the farm from 1840 to 1848, and that during that period Gustavus frequently stated “ that the property was undivided and that when Andrew (the plaintiff) came of age, he would be entitled to his father’s portion,” and by the latter, similár declarations made by Gustavus the day after Jacob’s death, about the condition or title to the estate, in which Gustavus told witness “ that the property was undidivided, and that Jacob was worth as much as he was, and that Jacob had an interest in the farm which he, Gustavus lived on.”

Gustavus had testified that “ he was present at the public sale made by Alexander Neill, sheriff in 1827, of Jacob Kershner’s interest in the lands, and that the same were knocked down to Andrew Kershner as purchaser.”

The declarations of Gustavus, made to the witnesses King and Spickler, were offered to rebut the testimony of the defendants, tending to prove the seizure and sale by the ' sheriff of Jacob Kershner’s interest in the land. Eór this purpose we think they were admissible. It is true that being-made before he had acquired any interest or title in the estate of Jacob, they could not impair or affect the title acquired by Andrew under the sheriff’s sale and would be inadmissible against Andrew if he were a party defendant; but Gustavus is himself a party to the cause, claiming under a title acquired from ‘Andrew, under and by virtue of the alleged seizure and sale by the sheriff. Now the declarations made by him with respect to that title, are admissible against him for the purpose of showing that in fact there had been no valid and effectual seizure and sale by the sheriff, or of explaining the real character and effect- of the sale itself.

The declarations are.not those of a stranger to the estate; offered for the purpose of affecting the title of a third person; but of the party defendant himself, with respect to the very title which he is now claiming under, and setting up to defeat the action. They are therefore clearly admissible.

There was no error in rejecting the testimony offered by the appellants in their sixth bill of exceptions. The farm called the “ Geyer Farm,” formed no part of the lands in controversy; therefore, evidence of the title or ownership thereof being exclusively in Gustavus, was irrelevant and properly excluded. The testimony which had been given by Mrs. Kershner, to the effect that Gustavus had declared “ that he would sell the ‘Geyer Farm,’ that the debts would be paid and then there would be an equal divide,” had been contradicted by Gustavus in his testimony, who denied that he had made any such statement. To sustain this denial it was proposed by the defendants to offer evidence shewing that the Geyer Farm belonged to Gustavus. This evidence was wholly irrelevant.' For that might well be and yet Gustavus may ■ have preferred to sell it rather than to sell the other property in which he held a joint interest for the purpose of raising money.

If Mrs. Kershner has testified that Gustavus had admitted that Jacob was interested jointly with him in the Geyer Farm, the evidence shewing the true state of the title would have been admissible, but such was not the character of Mrs. Kershner’s testimony, and the question of the title to the Geyer Farm was therefore not involved.

The testimony offered by the appellants in their seventh exception, of conversations of the witness Gustavus with Mrs. Susan Kershner, which was offered for the purpose of contradicting Mrs. Kershner’s evidence, was too general and indefinite to be admissible. Certain conversations of Gustavus, the defendant, had been proved by Mrs. Kershner; to rebut this testimony it was not competent to ask the witness Gustavus to state all the conversations he had had with Mrs. Kershner; under the rules of evidence, the rebutting testimony should be confined to the facts offered in evidence by the plaintiffs: by interrogating the witness only as to the particular conversations deposed to by the witness on the other side; otherwise the door would have been opened for the admission of irrelevant and illegal testimony.

By the appellants’ eighth bill of exceptions, they excepted to the refusal of the Circuit Court to grant their first, third, fifth and sixth prayers, and to the granting of the fourth prayer of the appellee.

In the argument in this Court, it was conceded that the appellants’ first prayer was erroneous and was properly refused.

The defence rested upon an outstanding title in Andrew Kershner, derived under an alleged seizure and sale by the sheriff in 1827, of Jacob Kershner’s• interest in the land; to prove a valid seizure and sale by the sheriff, the defendants offered presumptive evidence; and in granting their second prayer the Circuit Court instructed the jury that the several facts and circumstances therein enumerated, if believed by them, were evidence upon which they might ground the presumption of a valid seizure and sale, and if they so believed and presumed, then that the title of Jacob was thereby divested, and the plaintiff could not recover; and their verdict must be for the defendants.

And in granting the appellants’ fourth prayer, the jury were instructed that if they believed the facts enumerated in the appellants’ second prayer, or in their second and third prayers, then Jacob Kershner and his son, the plaintiff, claiming under him, were estopped and precluded from questioning the sale by the sheriff to Andrew, and the plaintiff would not be entitled to recover in this action.

These instructions covered the defendants’ case, and gave them the full benefit of their legal defence. This being so, it is the well settled law of this Court that the judgment will not be reversed, even though some of the other prayers of the appellants, which were rejected, may have been correct in themselves. Mutual Safety Ins. Co. vs. Cohen, 3 Gill, 459; New York Life Ins. Co. vs. Flack, 3 Md., 341; Pettigrew vs. Barnum, et al., 11 Md., 434; Balto. and Ohio R. R. Co. vs. Resley, 14 Md., 424; Keech vs. Balt. and Wash. R. R. Co., 17 Md., 32; Davis vs. Furlow’s Lessee, 27 Md., 546; Phila., Wil. and Balt. R. R. Co. vs. Weaver, 34 Md., 434.

This is a sufficient answer to the exception of the appellants to the rejection of their fifth prayer, which was substantially granted by the Court below in the instructions given.

The sixth prayer of the appellants was erroneous in stating that the presumption of a valid seizure and sale arising from the facts set out in their second prayer, or in their second and third prayers, ivas a presumption of law, conclusive upon the appellee, and irrebuttable. To have granted that prayer would have been inconsistent with the theory of their second and fourth prayers, which had been granted. Besides, it was very clear that the presumption arising from the facts on which the appellants relied, ivas one of fact to be found by the jury, and not one of law conclusive and irrebuttable; and for this reason the sixth prayer of the appellants was properly refused, and there was no error in.granting the fourth prayer of the appellee, which submitted to the jury the facts and circumstances on which the appellee relied to rebut the presumption of a valid seizure and sale by the sheriff ol‘ the lands in controversy; and instructed them that if believed by them, there was evidence from which they might find against the presumption.

Wo have discovered no error warranting a reversal upon any of the exceptions taken by the appellants.

Objection has been made to the verdict rendered by the jury, which is alleged to be insufficient, because too general and indefinite;' and for this reason the appellants moved in arrest of judgment.

The plaintiff declared for a term of fifteen years in the’ undivided moiety of certain lands named and particularly described in the declaration. Issue was joined on the plea of not guilty. The whole question to be tried was the plaintiff’s title to the lands described in the narr.; no dispute arose as to location. The jury found a verdict “for the plaintiff, and assessed the damage at one cent.”

(Decided 20th June, 1872.)

The plain meaning and import of the verdict is that the defendants are guilty of the trespass and ejectment complained of in the declaration, and that the jury assess the damage of the plaintiff by reason thereof to be one cent. Such a verdict, if set out in terms, would be sufficient, and judgment would be entered thereon, that the plaintiff recover his term, &c., in the undivided moitey of the tracts of land, &c., (as in the narr.) 2 Har. Ent., 206.

“If the plaintiff has laid his pretensions only in one way, the general verdict would be sufficient.” Dorsey on Ejectment, 73.

Considering the verdict sufficient, we think the motion in arrest was properly overruled. '

Judgment affirmed\.