Preston v. Evans

Alvey, J., delivered the opinion of the Court. This was an action of ejectment instituted by the present appellant, on the 8th day of December, 1879, apainst the appellee, to recover certain lands in Garrett County. The case was removed to the Circuit Court for Allegany County, and upon the trial there certain bills of exceptions were taken by the appellant, upon which the questions arise that this Court is now called upon to decide. As the exceptions to the rulings of the Court below upon the prayers offered by the respective parties present the main questions of the case, we shall first consider those ; leaving the questions upon the admissibility of evidence to be disposed of in conclusion. It appears that William Barnes, Sen., of Allegany County, died in the year 1821, leaving surviving him seven childrep, sons and daughters, of whom Ruth Metz, wife of Isaac Metz, was one. By his last will and testament, dated the 30th of January, 1821, and admitted to probate on the 8th day of May, 1821, he devised a certain farm or plantation, purchased of John Rhodes, to his daughter Ruth for life, “ and at her death,” to use the terms of the devise, “ I leave it to her son, John Metz,” without saying anything more. There is no other specific — 487 — ■devise in respect to this particular land, nor is there any residuary clause in the will. Ruth Metz survived her husband, and died in the year 1863, hut whether intestate or not, the record does not inform us. She had nine children, of whom the appellant is one; and all of whom, except the appellant and John, according to the agreed statement of facts, have died leaving children; but, according to the proof of the appellant, two of the children died without issue. John, the devisee under his grand-father’s will, was never married, and died in 1857 or 1858. Whether any of the children except the appellant, survived the mother, does not appear. William Barnes, Sen., left seven children, all of whom, except Ruth Metz and John Barnes, died some time between the years 1830 and 1850, without issue; but whether intestate or not does not appear. John Barnes is dead, and left children living. • The first question presented on the prayers, (the fourth on the part of the appellant, which was refused, and the eleventh on the part of the appellee, which was granted,) is as to the construction of the will of William Barnes, Sen., or rather the devise therein to Ruth and John Metz ■of the land now in controversy. There can be no question as to the estate taken by Ruth Metz under her father’s will. By express terms, the estate devised to her was for her life only. But as to the devise to her son John, made in general terms, without words of inheritance or limitation of any kind, it is supposed that ■an estate in fee was intended to be given. And this contention derives considerable force from the preceding express devise for life to the mother. But this will having been made prior to the Act of 1825, ch. 119, the principle •of construction then in force, and which had been established by a long line of thoroughly considered cases, restricted the devise to John Metz to an estate for his life — 488 — only; there being nothing in the context of the devise-sufficient to enlarge the estate given to a fee simple. For this, well settled rule of construction it is not necessary to do more than refer to the leading case in this State of" Beall vs. Holmes, 6 H. & J., 205, where all the authorities, down to the time of the decision of that case, were elaborately reviewed. We may, however, refer, in support of the same principle of construction, to the 3rd vol. of' the recent edition (the 5th Am.) of Jarman on Wills, pages 20 and'21, where all the authorities upon the subject will he found carefully collated, and the result of them stated.. As therefore neither Ruth Metz nor John, her son, took more than life estates in the land devised, it follows that the reversion in fee descended to the heirs-at-law of the testator. And there being seven heirs entitled, the one-seventh of this reversion in fee descended to and became vested in Ruth Metz, one of the children. She was therefore entitled as devisee to an estate for life in the land, and as heir-at-law to the one-seventh of the inheritance thereof, subject to the life estate devised to John Metz, which could only commence in-possession at the termination of the preceding life estate to the mother. Subsequently, upon the death of any or either of the brothers or sisters of Ruth, without issue, and without having dis-posed of his or her reversionary interest in the land, Ruth became entitled, as one of the heirs-at-law of such deceased. brother or sister, to her proportionate interest in the estate of the deceased. Such being the state of the title to .the land sued for, a& shown on the part of the appellant, the appellee then, for the purpose of showing title .out of the appellant, and of showing it to be vested in those under whom he-claimed, offered in evidence a certified copy of a deed from Isaac Metz and Ruth his wife, and John Metz, to James. Morrison, dated the 4th day of December, 1821, for the-same land devised to Ruth and John Metz, and for which this action is brought. — 489 — This deed recites the devise to Euth and John Metz, and that the grantors had agreed to sell to the grantee, “ all the estate, right, title, and interest, which they, or either of them, had to any lands in Allegany County, as heir or devisee of William Barnes, Sen., deceased; ” and in the premises or granting part of the deed, the grantors did “grant, bargain, sell, alien, release, enfeoff and confirm, unto James Morrison, his heirs and assigns, the said tracts and parcels of land, &c., and all the right, title and interest which they, or either of them, had to any lands in Allegany County, as heir or devisee of William Barnes, Sen., deceased, &c.; and all the estate, right, title and interest of them, the said Isaac Metz and Euth, his wife, and the said John Metz, or either of them, of, in, and to the same.” And in the deed there is a covenant of general warranty, whereby each of the parties grantors, “for themselves, their, and each of their heirs,” &o., did covenant, promise and agree, to and with the grantee, his heirs and .assigns, that they, the grantors, and their heirs, the said lands by the deed granted, would “ warrant and defend against all manner of persons claiming any right or title thereto, or any part thereof.” This deed was certainly effective to grant and convey to the grantee all the right and estate in the lands mentioned that belongs to or was vested in the grantors at the time of its execution. It conveyed the life estates devised to Euth and John Metz by the will of William Barnes, deceased; and also the fee simple in one-seventh part of the reversionary estate in the same lands, which descended to Euth as one of the heirs-at-law of William Barnes, deceased. It is contended, however, that the deed had a larger effect than simply to convey the existing estate or interest, whether vested or contingent, of the grantors in the lands;. that, by force and operation of the covenant of general warranty, the 'grantors were estopped to assert title to the — 490 — lands conveyed, and that such estoppel precluded Ruth Metz, and those claiming under her, from claiming or making title to any after acquired interest or estate in the lands, whether hy inheritance from her deceased brothers and sisters or otherwise. It is insisted that the covenant was effective to work such an estoppel as against Ruth Metz and those claiming under her, notwithstanding that at the time the deed was' made she was a feme covert, and therefore not capable of making a valid or binding deed or covenant hy the common law. And whether this contention he sustainable or not is the principal question in the case. It is certainly true that by the common law, every deed or covenant executed hy a feme covert is absolutely null and void. Burton vs. Marshall, 4 Gill, 487, 493. And independently of express statute, she could only convey her estate in lands by fine or by common recovery ; the former being in its nature a feoffment of record, a-nd the latter, hy means of the fictions employed, operated as a recovery of the lands hy the judgment of a Court having competent jurisdiction of the parties and the subject-matter. Lawrence vs. Heister, 3 H. & J., 371, 377. The deed in this case having been made in 1821, the provisions of the Acts of 1715, ch. 47, and 1766, ch; 14, furnished the authority and directions for divesting and conveying the estates in land of femes covert. By the 6th section of the Act of 1766, ch. 14, it was provided, that any feme covert, joining' with her husband in any of the conveyances mentioned,‘and acknowledged according to the directions of the Act of 1715, ch. 47, where such feme covert “ hath the right, title or interest in the lands or tenements, or any part thereof, by such conveyances intended to he given, granted, released,” &c., should, by the execution, acknowledgment, and enrolment of such conveyance, he barred and foreclosed to all intents and purposes. — 491 — There was nothing in those Acts that either authorized or made covenants by femes covert binding ; and no covenants, either real or personal, were necessary to pass the estate, or to debar the grantor from claiming the property intended to be conveyed, as against her deed. And from the very terms of the statute, it is manifest that it never was the design of the Legislature that the conveyances authorized to be made bj femes covert should have any other operation than to transfer their right and estate, of whatever nature held by them, in the lands intended to be conveyed, at the time of' the execution of such conveyances. The Legislature clearly never intended to authorize a feme covert to convey what she did not own, and what was' not, at the time of making the deed, the subject of conveyance'; and to allow her tobe barred of her future or after acquired estate by mere operation of her covenant of warranty, which was void by the common law, and not authorized by statute, would be in plain contravention of the policy and object of the whole legislation upon the subject of conveyances by femes covert. This question, more than three-quarters of 'a century ago, underwent most thorough discussion, and, as we take it, was definitely decided, in the case of Nicholson’s Lessee vs. Hemsley, 3 H. & McH., 409. That was an action of ejectment brought by an heir in tail of the premises claimed, and the defendant, claiming under and through the mother of the plaintiff, who was tenant in tail, gave in evidence a deed of bargain and sale,.made by the mother and her husband, professing to convey the land in controversy in fee simple, and which deed contained a covenant of general warranty by the grantors or bargainors, as against themselves respectively, and against all other persons claiming, and especially against f he heirs of the feme covert grantor. In connection with the covenant of warranty, the defendant gave evidence that real — 492 — assets in fee simple, to the full value of the land in dispute, had descended from the mother, the tenant in tail, to the plaintiff, claiming as heir in tail. Such being the case, if the tenant in tail making the conveyance had not been a feme covert, there could have been no question but that both she and the heir in tail would have been barred and concluded by the covenant of warranty. Indeed,, that was fully conceded in the argument. But it was because the covenant of warranty was not binding upon, and did not bar or estop the feme covert tenant in tail, that it was contended that the heir in tail, notwithstanding the inheritance of real assets in fee simple from the warrantor, was not bound or concluded. The question as to the effect of the covenant of warranty by the feme covert, was presented to the general Court directly and singly, in these terms : “ The defendant, by his counsel, moved the Court, to direct the jury, that if they should, be of opinion that real assets in fee simple of the value aforesaid, descended from the said Esther to her daughters aforesaid, the said lessor was barred from her recovery in the ejectment aforesaid, by virtue of the warranty contained in the said deed.” And upon full argument, Judges GrOLDSBOROUGii and Chase were divided in opinion, the former being of opinion that the covenant of warranty was competent to bind, and did bind, the feme covert and her heirs, while Judge Chase was of opinion that the covenant did not bind or bar the feme covert or her heirs. Consequently, the instruction moved for was refused; to which the defendant excepted, and the verdict and judgment being for the plaintiff, the defendant, appealed. The law as to the effect of the warranty in such case was as perféctly well settled as any principle of the common law could be. Littleton, in his Tenures, L. 3, ch. 13, secs. 711 and 712, says, “ that as to him that demandeth ' fee simple by any of his ancestors, he shall be barred by — 493 — warrantie lineale which descendeth upon him, unless he be restrained by some statute. But hee that demandeth fee tayle by writ of formedon in descender, shall not be barred by lineale warrantie, unless he hath assets, by dis-cent in fee simple by the same ancestor that made the warrantie.” And Coice in his Commentaries, states the law with equal explicitness. Co. Litt., 374 b. If therefore the heir in tail received real assets by descent from his ancestor making the warranty, of the value of the land •claimed, he was equally barred and precluded as the heir to the fee simple estate would be. But, notwithstanding this well established principle of law, the Court of Appeals, after the most elaboraté argument of distinguished counsel, affirmed the judgment of the general Court, and thereby the correctness of the refusal to grant the instruction prayed for by tbe defendant. And the question having been thus directly presented and decided, we can perceive no good reason for disturbing it, and think it must be regarded as settled. The case of Morris vs. Harris, 9 Gill, 19; relied on by the appellee, did not present the question of estoppel or covenant of warranty by feme covert, to preclude her, or those claiming under her, from making claim to an after acquired title to the land embraced by the deed. That was the case of mutual covenants on partition of land held in co-parcenary, one of the parties to the deed being Jeme covert. The covenant was simply that each party should hold his or her part of the land assigned free from the claim of the other. The question that was there decided arose upon an objection to the competency of one of the parties as a witness ; and it has but slight resemblance to the question presented in this case. There was no question of after acquired title involved. In looking to the decisions of other States, there seems to be some conflict upon the question, whether the wife, by joining with her husband in a deed conveying her — 494 — land, with covenant of general warranty, estops herself and those claiming under her, to claim an after acquired title. The decided preponderance of authority, however, is against holding such covenant to operate an estoppel as against the wife and those claiming' under her. In some of the States the subject has been regulated by express statute. Rawle on Cov., 401, and cases there cited; 1 Bish. L. M. W., sec. 603; Jackson vs. Vanderheyden, 17 John., 167; Martin vs. Dwelly, 6 Wend., 14; Nunnally vs. White, 3 Metc., (Ky.,) 593; Childs vs. McChesney, 20 lowa, 431; Hopper vs. Demorest, 1 Zabr., 525. It follows from what we have said, that the proposition affirmed by the fourth prayer of the appellant, that Ruth Metz and John Metz ’took but life estajes in the land devised to them by the will of William Barnes, Sen., was correct; but the prayer was properly rejected, because it withdrew from the jury the finding of facts essential to the right of the appellant to- recover. But there was error in granting the eleventh prayer on the part of the appellee; as by that prayer the jury were instructed that the covenant of warranty worked an estoppel upon Ruth Metz, and those claiming under her, to claim any after acquired title in the land embraced by the deed of the 4th of December, 1821. Ruth Metz died in 1863, and until her death the appellant could have no right of entry into the land, by virtue of any right or title derived from her mother; and therefore the appellee could not rely upon adverse possession or the Statute of Limitations * to defeat the appellant’s right to recover. The legal proposition, therefore, embodied in the appellant’s second prayer was correct; but that prayer, like several of the others offered by the appellant, failed to present a proper collocation of the facts. Indeed, all the prayers on the part of the appellant were defective, either in form or substance, and there was, — 495 — therefore, no error committed in rejecting them. And while the granting of the'eighth prayer of the appellee affords no ground of'reversal, as there was no special exception taken to it under the rule, yet it was defective in submitting to the jury to find, whether the legal title to the land was in any other person than the appellant. That, upon facts to be found by the jury, was a question of law for the Court. All the prayers offered for instruction on both sides with respect to the due and proper execution of the deed of the 4th of December, 1821, by John Metz, and the mode and sufficiency of proof thereof; as also the questions raised by the second, third, fourth and fifth bills of exception taken by the appellant, in respect to the admissibility of proof, become wholly immaterial to the right of the appellant to recover in this cause; her right to recover, whatever that right may be, not being derived through John Metz, but through Ruth Metz, the mother. The only remaining question necessary to be determined on this appeal, is that presented by the first exception taken by the appellant, as to the admissibility in evidence of the certified copy of the deed of the 4th of December, 1821. And as to that question, we can entertain no doubt of the correctness of the ruling whereby the copy of the deed was admitted. The fact that the deed was of record in the clerk’s office of the Court where the case was tried, can make no manner of difference, as seemed to be supposed by counsel of the appellant, in regard to the admissibility of the certified copy. Such certified copy is made evidence in all the Courts of the-State, without any exception (Code, Art. 37, secs. 37, 58,) and there is no reason whatever for holding that such certified copy can only be used when the record itself cannot be produced. When the record is within reach and can be produced, it may be used instead of a certified copy from it, (Morrill vs. Gelston, 34 Md., 413, 421,) but it does — 496 — not follow because that may be done, that a certified copy, is rendered inadmissible. (Decided 29th June, 1881.) The judgment appealed from must be reversed, and the •cause be remanded for a new trial. Judgment reversed, and . neio trial ordered.