Walsh v. McIntire

13 A. 348, 68 Md. 402, 1888 Md. LEXIS 18

Opinion

Irving, J.,

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 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 actual possession, no matter how long and exclusively continued. It has been repeatedly decided in this State, that no interest in land, for a period longer than seven yearns, can he acquired at law, in any other way than by deed duly acknowledged and recorded as required by the Acts of 1715, cli. 47, and 1766, ch. 14, which are embodied in section 1 of Art. 24, of the Code of Public General Laws. No simple act in pais is sufficient to give title. Peter vs. Schley’s Lessee, 3 Harr. & J., 211; Mackall vs. Farmers Bank, 12 G. & J., 176 ; Anderson vs. Critcher, 11 Gill & J., 450; Mahew vs. Hardesty, 8 Md., 479 ; Howard vs. Carpenter, 11 Md., 275. Occupancy merely under a parol gift is not possession under color of title which, this Court said in Baker vs. Lessee of Swan, et al., 32 Md., 358, “ is such title as in appearance is good and sufficient, but which in reality is not good and effectual.” Here there was no apparent title; there was bare occupancy and nothing more, except the claim in 1869, that David Shriver had given the property to the appellee by parol, and she had entered under his authority in pursuance of the gift.

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 me for my services ; he never asked me for rent; they dumped earth on the lot when the basin was cleaned out; I consented because they told me it would be a benefit to my garden.” She said she consulted a neighbor and he told her it would benefit the garden and she accordingly consented to it. She also testified “ that Mr. Shriver was always kind to her; that when she left Mr. Shriver’s she o'wned and occupied a small lot in the vicinity of the land in controversy here; that she built a dwelling house thereon, and that Mr. Shriver helped her to build the house by giving her some money to do so; that Geni. McKaig claimed the house and lot as his and turned her out of possession; that thereupon Mr. Shriver put her in possession of the property in controversy here; be told her to go and take it and keep it and not to leave it as Brady had done; that Brady had occupied the same property before she entered it and had gone off and left it; that the property was enclosed just as it now is, and that the line of enclosures had never been changed, but remain now as they then were.” She also put in evidence that the land was, when she entered it, low and marshy and liable to overflow from the Potomac river, and was of small value for building purposes. The plaintiff had given evidence of an entry on the land in 1869, and the dumping of the earth and material taken from the basin to a considerable depth over the land; and that the appellee was ordered to remove her crop before doing so, which she did; and that when she was told that Mr. Walsh had bought the same said she was glad, that David Shriver had put her there and she was taking care of it for him and his heirs. It was also in evidence that a former ejectment suit had been brought and the appellee notified; that she appeared and entered into the consent rule of lease entry and ouster, and that afterwards her counsel struck out his appearance, and judgment was rendered against the casual ejector in favor of the plaintiffs on the 3rd of October, lSYO. The record of this suit and judgment was in evidence. No execution having issued on the judgment until the expiration of twelve years from its date this suit was brought.

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 anee, by decreeing against David Shriver’s heirs that they should convey the fee to Jane McIntyre of the premises in controversy. If it would not, it is too clear for argument, that a Court of law should not allow the same facts to go to a jury, as sufficient to warrant a verdict for defendant on the ground that she had acquired a legal title if they found the facts testified to. In the facts testified to by the appellee, we can see no element of adverse possession. By her own confession and testimony she was put in possession by David Shriver to take care of the property, which Brady who had preceded her in that duty had abandoned and left;—she was charged not to do as he had done. Being put, then, as an agent to have care of the property, all her acts of possession afterwards are to be referred to the permission under which the original entry was made. There is nothing in her testimony tending to establish a disseisin or ouster of David Shriver or those claiming under him, which the authorities all say the acts of possession, indicative of adverse, holding, must effect. They must be hostile, open, notorious and exclusive, and must have been continuous for twenty years. They must be such as unmistakably indicate a claim of the absolute title in fee. Ricard vs. Williams, 7 Wheaton, 59; Dean vs. Brown, 23 Md., 11; Kirk vs. Smith, 9 Wheaton, 241; Campbell vs. Shipley, 41 Md., 97. She says she paid no rent, and that after 1870 she paid the taxes. The non-payment of rent is, of itself, not sufficient to indicate claim of title. This Court in Campbell vs. Shipley, most pertinently said “ if no rent was paid and the tenancy was not expressly admitted, there is nothing to show that the possession was held in hostility to the rights of the landlord, and those claiming under him. In the absence of this proof nothing is to be presumed in favor of an adverse possession, and more particularly so where it commenced rightfully and with the consent of the owner.” A decision more directly applicable could not be found. The possession in this case, by defendant’s own statement, commenced, permissively “to take care of the property.” In doing so she became a tenant at will. There is nothing to indicate any claim of title until the conversation she says she had with Mr. Walsh in 1869, when she says she told him that Mr. Shriver had given it to her for a home. Supposing this to be a claim of the fee as against Walsh the new owner, instead of only an assertion of claim of a home for life; and then conceding that from 1870, she did then pay the taxes, the new departure has not continued for twenty years. Besides, Walsh asserted his claim by ejectment which she did not defend after appearing to the suit by ■counsel, and Walsh obtained judgment for the property, and could have executed it by writ of habere, but did not. If her possession as against Walsh, after assertion of claim had continued for twenty years, there would have been some ground for her contention of right to hold adversely. But nothing short of that period will justify the presumption of a deed.

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 who entered into the consent rule, and afterwards struck out his appearance, and judgment by default was rendered against the casual ejector. In Aslin vs. Parkin, 2 Burr., 668, Lord Mansfield in announcing the unanimous opinion of all the Judges says of the tenant in possession, “ if, after he is duly served, he does not appear, but lets judgment go-by default, such judgment is carried into execution against him by a writ of possession. That there is no distinction between a judgment in ejectment upon verdict, and a. judgment by default; in the first case, the right of the plaintiff is tried and determined against the defendant: in the last case it is confessed.” The case in which these decisions were made was an action for mesne profits, and there the Court said the “tenant was concluded by the judgment; and cannot controvert the title, and consequently,, he cannot controvert the plaintiff’s possession.” Of course this applies only to the term laid in the declaration, which in this case has not yet expired. So that lease or no lease-could not come in question. Tyler on Eject., 392. Upon sci.fa. on such judgment the question decided in the judgment could not again arise. Bradford vs. Bradford, 5 Conn., 127. But as to the fee—the title—it is not conclusive; for by the structure of the pleading in the old form of' action, under which the case offered in evidence was conducted and judgment rendered, it is impossible to plead former recovery. Tyler on Eject., 592-3; Jackson vs. Tuttle, 9 Cowen, 233 ; Mackenzie vs. Renshaw, 55 Md., 299. A former verdict and judgment therefore are not conclusive as to title. In the last cited case this Court said “ any judgment in ejectment under the old practice was conclusive upon nobody.”

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,. for and during the period of twenty years, which was the demise laid in the declaration; yet the Court below was entirely right in granting the defendant’s seventh prayer, which told the jury that the verdict and judgment, in the former case, were not conclusive as to the question of title involved in this case. There a lease of twenty years only was declared for ; here the entire title is in question. The second prayer of the defendant being but the converse in substance of the plaintiffs’ first prayer in part, with the addition of simply declaring the burden on the plaintiffs to prove their case, there was no error in granting it. Of course it was incumbent on the plaintiff to show that his deeds included this parcel of land, for if it had not been conveyed to him, it was immaterial whether the defendant’s title was good or bad. He could only recover on the strength of his own title.

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 contrary. If there was none it was misleading to grant that instruction; but being a granted prayer, and no exception to it for the want of evidence to support it, we cannot, under our rules, say it was granted in error.

(Decided 14th March, 1888.)

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.