Jay v. Michael

Boyd, J., delivered the opinion of the Court. The appellants instituted an action of ejectment against the appellee for a tract of land known as “ Horner’s Fishery,” which was alleged in the declaration to be adjacent to a tract called “ Mould’s Success,” and is described by courses and distances. The plaintiffs claim under the wills of their aunts, Frenetta F. Smith and Maria M. Smith, who died in i860. They offered evidence tending to prove that Samuel G. Smith, a brother of the Misses Smith, was in possession of “ Horner’s Fishery ” at the time of his death in 1845, and that the Misses Smith then entered and took possession of — 9 — the same as his only heirs at law, and continued in the exclusive, peaceful possession thereof until they died, when John Jay, the father of the plaintiffs, took possession of it, and so continued until his death in 1892. The Misses Smith devised to John Jay for life “ all that farm and premises, lying and being on or near Swan Creek in the said (Harford) County, composed of a tract called “ Mould’s Success,” and part of a tract called “Palmer’s Point,” containing in the whole three hundred and thirty-five acres, more or less,” etc. By the third clause of their respective wills they each devised to said Jay for life all the rest and residue of their real estate, or such part thereof as they died siezed and possessed of, or entitled to. They then devised the remainder in all their real estate to the plaintiffs. The plaintiffs offered the wills and testimony tending to show that “Horner’s Fishery” was a separate and distinct tract from “Mould’s Success” and “Palmer’s Point.” The defendant introduced in evidence four deeds, one from James B. Baker to the defendant, one from John Jay and wife to Baker, one from Samuel Smith Jay, and another from John G. Jay to John Jay. The last two are practically alike. It is contended by the defendant that these deeds conveyed all the interest of the plaintiffs in “Horner’s Fishery” to their father, John Jay, who conveyed it to Baker and Baker to the defendant, and the proper construction of them is the important question presented to us by this record. It is only necessary to consider the two last named deeds, as we are only called upon to determine what the plaintiffs have conveyed away, and not what John Jay undertook to convey. Let us take for example the deed from Samuel Smith Jay. It recites that he became entitled to an undivided interest in fee simple in the lands and premises therein mentioned and described by the wills of Maria M. and Frenetta F. Smith, and grants the following: “All my interest and estate in and to all that farm and premises lying and being on or near Swan Creek, in Harford County, aforesaid, composed of a tract of land called “Mould’s Success” — 10 — and part of a tract of land called “Palmer’s Point,” containing in the whole, three hundred and thirty-five acres of land, more or less, being the same lands and premises mentioned and described in the hereinbefore mentioned wills of the said Maria M. Smith and Frenetta F. Smith, and by the said Maria M. and Frenetta F. devised to my father, the said John Jay, for and during his natural life only, with the remainder, in fee-simple, to me, the said Samuel Smith Jay, and my brother, John Goldsmith Jay, the interest intended to be hereby conveyed being the entire interest which I, the said Samuel Smith Jay, have taken or may take under and in virtue of the aforesaid wills of the said Maria M. Smith and the said Frenetta F. Smith, and -which said farm or parcel of land is particularly described in a deed from Priscilla Presbury, John Moores and others,” etc. It is contended on the part of the appellee that Samuel Smith Jay conveyed by this deed his interest in all the real estate devised to him by said wills, and that through this and the other Meeds above mentioned, the defendant became the owner of the tract in controversy. The Court below adopted that view and granted a prayer that under the pleadings there was no legally sufficient evidence to entitle the plaintiff to recover. The deed from Priscilla Presbury and others to S. G. Smith and others, conveyed the tract called “Mould’s Sue ■ cess,” containing three hundred and fourteen acres, more or less, exclusive of elder surveys and water, and part of “Palmer’s Point,” containing twenty-one acres, more or less, but is there anything on the face of the deeds to John Jay from his two sons which would necessarily indicate an intention to convey “Horner’s Fishery,” if that be a separate and distinct tract from “Mould’s Success” and “Palmer’s Point?”, They describe the property as “all that farm and premises lying and being on or near Swan Creek,” and it is contended that “Horner’s Fishery” is a part of that farm, although the deeds add that the farm is “composed of a tract of land called “Mould’s Success,” and part of a tract of land called “Palmer’s Point,” containing in the whole, three hundred — 11 — and thirty-five acres of land, more or less.” It is urged by the appellee, however, that the subsequent clause in the deed, which says “the interest intended to be hereby conveyed being the entire interest and estate which I, the said Samuel Smith Jay, have taken or may take under and in virtue of the aforesaid wills,” etc., clearly shows the intention of Samuel Smith Jay (and the deed from J. G. Jay is similar), to convey all the real estate he acquired by these wills. But this clause is again qualified and limited by adding “ and which said farm or parcel of land is particularly described in a deed from Priscilla Presbury” and others. The expression the “ interest intended to be hereby conveyed being the entire interest and estate,” etc., may have been used to describe the quality of the estate in the farm intended to be conveyed, not necessarily to mean the entire property devised by the Misses Smith, if they had real estate other than the two tracts. The deed from Jane Shipley and others to Samuel G. Smith tends to show that Samuel G. Smith recognized that there was a separate tract called “ Horner’s Fishery,” as by it there was conveyed to him an undivided half-interest in that tract, whilst Priscilla Presbury and others had previously conveyed to him and his two sisters the other two tracts, and there was other testimony to the effect that “ Horner’s Fisheiy ” was a separate and distinct tract from “Mould’s Success” and “ Palmer’s Point,” and was not a part of the farm known as “ Mould’s Success Farm.” The defendant claimed his title through the same source that the plaintiffs did, or to speak more accurately, claimed it through the plaintiffs themselves. It was not necessaiy, therefore, for the plaintiffs to prodnce evidence to establish the title beyond the Misses Smith in order to make out a prima facie case, for it is well settled that when the plaintiffs and defendant in an ejectment suit are claiming title through the same party, it is “prima facie sufficient to prove derivation of title from that party without producing any patents or deeds to prove title in him.” Ahern v. White, 39 Md. 423; Elwood v. Lannon's Lessee, — 12 — 27 Md. 200. The plaintiffs did, however, produce some testimony tending to show such adverse possession and user of the tract by those under whom they claim as to entitle them to recover it unless the defendant’s construction of these deeds be correct. We do not think that the intention to convey all the real estate devised by the wills, or this particular tract, is so clear and manifest as to justify the Court in determining from the face of the deeds that “ Horner’s Fishery ” was conveyed. We are of the opinion, however, that it was intended to convey the farm of the Misses Smith on Swan Creek, but whether the land sued for is embraced in that farm or is separate and distinct from it, is a matter of proof. If the farm, as generally understood, included the land sued for, the plaintiffs cannot recover. But, as already said, the plaintiffs offered some evidence to show that “ Horner’s Fishery” was separate and distinct from “ Mould’s Success ” and was not considered a part of the farm known as “ Mould’s Success Farm.” We think, therefore, the Court below was in error in granting the prayer of the defendant. There was a question of fact to be determined by the'jury under proper instructions of the Court. It is true it is the duty of the Court to construe a deed, but it is for the jury to apply its terms when thus construed to the land in controversy to ascertain whether the premises in question are within the description. 3 Wash, on Real Prop., 409. Parol testimony can be offered to explain the circumstances under which the deed was executed. Proof of these circumstances is intended to place the Court, as far as possible, in the position of the parties, so it can intelligently interpret the language used. When all pertinent and admissible facts are before the Court, it can then better determine what was meant, although of course parol testimony must be admitted with great caution. In the case of Winter v. White, 70 Md. 305, the plaintiff claimed title under a deed which conveyed to him “ all those tracts or parcels of land situate in Howard County, consti — 13 — tuting the farm of which the late Theodore R. S. Boyce died seized,” followed by a reference to the several deeds under which Boyce acquired title, and also to a survey of said tracts of land in which the metes and bounds, courses and distances were given. The deed and the survey did not embrace a strip of ground which was included in the farm, but the Court held that the deed passed or conveyed all the farm upon which Boyce resided at the time of his death and of which he was then seized, whether the particular description given by the surveyor and mentioned in the deed covered it or not. So we think that the true construction of these deeds is, that they intended to convey the farm of the Misses Smith, on or near Swan Creek, and even if there be any part of the “farm ” outside of the limits of the original tracts, “ Mould’s Success ” and “ Palmer’s Point,” it was.conveyed under the general description. But what land the farm in point of fact included must be determined by evidence. (Decided November 15th, 1895.) The Court was clearly right in refusing to permit the plot with accompanying description to be put in evidence. So far as the record discloses there was no proffer to show that the defendant or John Jay’s grantee had any knowledge of such plot, or that the purchase was made with reference to it. We know of no ground upon which it could have been admitted at the instance of the plaintiffs, and there was no error in rejecting it. But as the Court erred in granting the defendants’ prayer the judgment must be reversed. Judgment reversed with costs to the appellants, and new trial awarded.