Doe ex dem. Campbell v. Fletcher

Bartol C. J. delivered the opinion of the Court. This appeal is frona the Superior Court of Baltimore City, in an action of ejectment instituted by the appellants against the appellee, to recover possession of a lot of ground situated in Baltimore City. It appears by the bill of exceptions that when the plaintiffs’ Counsel had made his opening statement to the jury, the Superior Court upon the prayer of the defendant, instructed the jury £c that even if they should find all the facts which the plaintiffs have stated and offered to prove, the plaintiffs have not laid the foundation for a recovery in this action, and their verdict ought to be for the defendant.” [433] In disposing of this appeal therefore, we must consider the facts contained in the statement, as proved or admitted. They are as follows: Jacob Sleeper, the maternal grandfather of the plaintiffs, under whom they claim, was in 1808 in actual, adverse and notorious possession, by enclosure, of a parcel of ground, of which the lot in controversy is a part; and in 1818 died in possession as aforesaid, leaving a paper writing purporting to be bis last will, signed by'two witnesses. By which paper he devised the parcel of ground aforesaid to his four sons, Isaac, Abraham, John and Joshua, and his daughter, “Philipina,” the mother of the plaintiffs. That the four sons moved away from the city, returning at intervals, and the daughter, “ Philipina,” continued to live in the house, and to possess the premises aforesaid, from the death of her father in 1818 till 1840, when the house was burned down, and she and her children moved to a house in the neighborhood, off the property, where she resided till her death in 1855. During that period she continued to claim the property, and exercised acts of ownership, (so far as asserting to her children that she was owner, constituted such acts, together with statements, made by ber to them, in reference to an application made to her by a person, to rebuild her house, and her reasons for not rebuilding), “Isaac, Abraham, John and Joshua Sleeper, and their descendants are all dead ; and the plaintiffs are the only heirs at law of Jacob Sleeper.” “The plaintiffs claimed the lot fn controversy by a possessive and not by a paper title.” In answer to a question from the Court, the counsel stated, that “he did not expect to prove actual, adversary possession by the plaintiffs or their mother, within twenty years prior to the institution of the suit; if (as he understood the Court to rule,) that residing upon the property was necessary to constitute such actual adversary possession.” If rom the time the house was burned, [434] in 1840, till after the death of “Philipina,” in 1855, the property was unoccupied; and no one was in the actual possession until within a period,'less than 20 years before the institution of this suit. No brief or argument has been submitted on the part of the appellee. We think the facts stated show a prima facie title in the plaintiff, sufficient to support the action. It is settled by Armstrong vs. Risteau, 5 Md., 256, that “twenty years adverse possession will enable a plaintiff to maintain ejectment.” Sucb a possession, it appears, Philipina Sleeper had from the year 1818 till 1840, during all which period she had the actual possession and occupancy, openly claiming title, and exercisingr ights as owner. Her father, Jacob Sleeper, had held the “actual, adverse and notorious possession by inclosure,” from 1808 till his death, in 1818; his possession enured to the benefit of Philipina, who came into possession as his heir at law. 2 Washburn on R. Prop., 493. It appears further that when in 1840, by reason of the destruction of the dwelling, which rendered it impossible for her to reside upon the property, she ceased to occupy it, that she by no means abandoned her title and claim to it as owner; but continued to assert the same till her death in 1855. ■ Having acquired a title by such possession as gives right, continuing for more than twenty years, her legal seisin continued after she had removed from the property, and her title descended, on her death, to the plaintiffs, her heirs at law. In order to maintain ejectment it is not necessary that either she or the plain tiffs.should have been in the actual occupancy or possession of the property, within twenty years before the institution of this suit. An adverse possession by another for twenty years, would of course defeat or bar their claim. But according to the facts as .stated by the counsel, the property remained unoccupied, [435] after the dwelling was burned, until within less than twenty years before this suit was commenced. (Decided 20th February, 1873.) Considering that it was error to grant the defendant’s prayer, the judgment will be reversed, and a new trial ordered. Judgment reversed and new trial ordered.