Jacob Tome Institute v. Davis

Bryan, J., delivered the opinion of the Court. Many of the questions in the present record were decided by us at the last term of the Court in an appeal by this appellant against Davis’ administrators. That was an action of tresspass quare clausum fregit, for injuries alleged to have been done to the land of the intestate in his lifetime by the appellant.' This is an action of ejectment by the — 602 — heirs of the<,same decedent. Defendant pleaded not guilty, and took defence on warrant. Subsequent reflection has confirmed us in the opinion which we expressed on the former appeal. Our conclusions on the cardinal point of the controversy were founded on the construction of the lease from Mrs. Thomas to the Misses White. In the lease the plat made by Hugh Beard was referred to, and it was stated that the two lots then leased were “distinguished and marked on said plat by the numbers thirty and thirty-one.” A reference to the plat shows that the two lots are laid out as running down to the water’s edge, and that a street thirty-three feet wide is represented as entirely covered with water. The explanation which accompanies the plat, and which was made by the surveyor, states that the lots drawn on the plat vary in front “so as to answer the different turns of the river shore.” The lease in its terms is without any ambiguity whatsoever, latent or patent. In explicit terms the lessor demised to the lessees the two lots whose boundaries were marked on Beard’s plat. It was the duty of the Court to expound the deed, and to declare its meaning. This meaning must be determined by what appears on its face, and not by the testimony of witnesses. Beard’s plat gave lots which reached to the margin of the river, and exhibited a street which was intended to be built out into the water. These were the 'lots to which the lessees acquired title from the lessor. If the lessor had owned the bed of the street, the lease would have worked a dedication of it. But not owning the bed, the lessor could not lawfully construct the street, nor authorize or require any one else to construct it. The exhibition of the street on the plat simply showed a purpose to build it. To build it would be to commit a trespass on the land of the State. The record does not show with any certainty the actual condition of the street in eighteen hundred and twenty-four, the time when the lease was made. No one of the witnesses in the case have testified to its condition in that year; and in fact none of them ever — 603 — saw it until years afterwards. It may, however, be inferred that but little progress had been made towards its construction. But whether much or little, the rights of the lessees are not affected. They acquired a perpetual leasehold in lots running down to the river, subject, however, to the construction of a street in front of them. But the street could not lawfully be constructed. Assuming, however, that they consented to the building of it and that they forfeited all right to object to it; they were relieved from all injurious consequences by the Act of 1824, chapter 33. This Act gave to these lot holders and others in the same situation the right to extend the whole front of their lots as far as they should see fit into the Susquehanna river. So far as the street was constructed, it was legalized; where it had not been constructed authority was given for its construction. The State was the only party whose rights could be infringed by the existence of the street, and these rights were waived, or fully granted to the lot holders. If the street cut off riparian rights they thereby became vested in the State; and this Act of Assembly reinstated the lot holders in their former rights, and at the same time be-stowed upon them benefactions of greater value. We might properly have been content with a simple reference to our former opinion. But as there seems to have been some misapprehension in regard to this matter, we have expressed somewhat more fully what was already necessarily implied. Referring now to the opinion for a statement of the titles of the parties to this suit, we will forbear to discuss any further the questions which have been decided. On the former appeal by this appellant we decided that the deed from White to Rinehart conveyed land commencing at high-water mark in the- Susquehanna River as it existed on the seventeenth day of April, eighteen hundred and thirty-seven. And that unless White owned some fast land when he executed the deed to James A. Davis, he had no interest which he could convey, and that in this event Davis acquired nothing. The location of high-water — 604 — mark at the time mentioned was a question for the jury on the evidence as applied to the plats made under the warrant of resurvey. We also decided that there was evidence of adversary possession by Davis competent to prove a title in him to the land in dispute. These are the really important questions in this case; and they determine the proper disposition to be made of most of the prayers. The fourth prayer of the plaintiffs stated that White’s deed to Davis in eighteen hundred and sixty-four conveyed all White’s interest in the water privilege of Lots 30 and 31, if the jury should find that he had any at that time. White’s interest depended on the correctness of the locations, and it was the province of the jury to determine these as facts. It was the right of the defendant to ask instructions by which the jury should be informed specifically on what facts White’s interest depended. And, as will be seen, it exercised this right in several of its prayers. We see no error in this prayer. And we think that what we have already said sufficiently shows that the other prayers of the plaintiffs were properly granted. The defendant offered twenty-three prayers. The Court granted ten of them as offered, and the fifth and seventeenth with modifications, and refused the others. No bill of exceptions was filed by the plaintiffs, and therefore the prayers granted as offered by the defendant are not before us. The second and third prayers are identical with the fifth and sixth in the former case, and were properly refused as we then said. The fifth prayer ought to have been granted without modification. It is the same as the tenth in the former case. The modification made by the Court made a change in its meaning injurious to the defendant. It restricted the finding of the jury to the high tide at the time of the deed from Nowland to White. The ninth prayer required the jury to find as a condition of the plaintiffs’ recovery that the adverse possession of Davis and his heirs extended to every part of the land located by the plaintiffs; whereas if they had held — 605 — adverse possession of any part of it for twenty years, they acquired a title to such part. The tenth prayer asserts in effect that the title of Davis derived from Nowland through White was a leasehold estate, and that therefore the plaintiffs, his heirs at law, could not recover in this action. The deed from Nowland to White in eighteen hundred and thirty-seven conveyed to him, his heirs and assigns, the entire water privilege of lots thirty and thirty-one; and in eighteen hundred and sixty-four White conveyed all the interest in them which he then had to Davis. Nowland held a perpetual leasehold in the lots thirty and thirty-one. By virtue of this leasehold he had the absolute control and management of the property, and the entire beneficial interest in it subject to his obligation to pay rent to the reversioner. He was the '1 proprietor ’ ’ of these lots within the meaning of the Act of 1824 ; and had by virtue of that Act the right to acquire land below high water by making extensions into the Susquehanna River. The fast land which he should make in this way would belong to himself. His right to it was derived from the bounty of the Legislature which permitted him to acquire land for himself by his own labor, or by the expenditure of his own means. No portion of it ever at any time belonged to the reversioner, or was ever in his possession, actually or potentially. As the reversioner never had any interest or title to this land, nor any possession of it, he of course never conveyed, nor assumed to convey either title or possession to the lessees or their assignees. Nowland held title and possession which were in all respects independent of the reversioner. By force of the Act of Assembly he owned it because of his proprietorship of the land bordering on the shore line. That was his title to it. It may not be in all respects entirely accurate to say that he held it by the same title, by which he held the original lots. That is, the quantity of estate was not the same. Yet he had a right to this land because he was the proprietor of the original lots. That proprietorship was the origin and — 606 — support of his right. Lord Coke says : “ Titnlus est justa catisa possidendi id quod nostrum est." In other words, title is the right whereby we hold our own. The right by which he held the land formed by extension into the river was given by the title which he held to the original lots. In this sense only can it be said that these different properties were held by the same title. It will be seen that we think that Nowland validly conveyed a fee-simple to White in eighteen hundred and thirty-seven. Consequently defendant's tenth prayer was properly refused. The eleventh prayer is identical with the eighteenth prayer in the former case, which we said was properly refused. The fifteenth prayer was waived by counsel. The sixteenth prayer states the construction of the deed from White to Rinehart, as we decided it in the former case. It ought to have been granted. The same construction is stated with unnecessary detail of circumstances in the seventeenth prayer; and it ought to have been granted withotit modification. The same may be said of the nineteenth prayer. The twentieth prayer was properly refused, because it required the jury to find as a condition of the plaintiffs’ recovery their adverse possession of all the land in dispute. The twenty-first prayer was properly refused. We have now gone over all the prayers which are properly before us. Many of the exceptions to testimony have been waived by counsel. We shall consider such of them as are still insisted on. In the first exception the defendant objected- to the introduction of a private plat. It does not clearly appear that the locations on the plat were put in evidence. We shall therefore pass this exception by, inasmuch as a similar objection appears in the fourth and eleventh exceptions. In the fourth exception it is stated that Solomon’s plat was shown to a witness, and that the defendant objected to the use of it, because its accuracy and correctness had not been shown ; but that the Court permitted it to be exhibited to the jury in connection with the testimony of the witness. In the eleventh exception the Court permitted the same plat — 607 — to be used, as it said, “to illustrate.” This exception contains a reference to the twelfth exception, which shows in what manner the plat was used. Solomon’s plat is a printed document purpoiting to be a map of the town of Port Deposit, made in the year eighteen hundred and fifty-.six. It is not shown to have been made by any public .authority, nor is it shown to be correct. But it was used to enable a witness to testify to the position of objects shown .upon it which were of essential importance in showing the location of a boundaiy line of the land in controversy. It was permitted to be used as an instrument of evidence; and .such action of the Court was erroneous. We will state that portion of the fifteenth exception, which has not been waived by counsel. The Court had permitted .anew location of Davis’ adverse holdings to be made by amendment of the surveyor’s plats. The defendant objected to the location, and also to all ofthe evidence relating to the locations made on the plats of the surveyor from Solo-mon’s map. In the first exception, the defendant had objected to these locations, and had reserved the question. The Court permitted the new location to remain, and also the locations from Solomon’s map, and permitted all the testimony relating to it, to be considered by the jury. The new location permitted by the Court was made in obedience to the following instruction given to the surveyor by coun- . sel for the plaintiffs. “ Sir: Locate for plaintiffs the adverse holdings of James A. Davis, in his lifetime, in the lands ■ opposite Lot 31, in the town of Port Deposit, in Cecil ■ County, and between Water street, in said town, and the , Susquehanna river.” It is the duty of the surveyor to make the locations on his plats according to the instructions of the parties. But the party, who wishes a location made, . must inform the surveyor specifically how he wishes it to be made; what boundaries, courses, distances, &c., &c., he desires to have surveyed. The instruction in question did not give this information. The surveyor in his return shows i lines, courses and distances, measurements and calls with — 608 — circumstantial minuteness. He did not obtain the information for this return from the instruction given to him by the plaintiff, and he had no other proper source of information for making his locations. We think that the instruction was insufficient to authorize the surveyor’s return and that the return was unwarranted. Article 75, section 81, enacts that “the plats and certificates of survey in every case may be amended at bar.” But we suppose that the amendments in the plats must be made according to the law and practice of ejectment. The amendments are authorized by law so that something may be supplied which was unknown or overlooked at the time of the survey. It cannot be that a location may be made by way of amendment, which could not have been permitted at the time of the survey, if sought to be then made under the same circumstances. But the ruling of the Court had a much wider scope than the permission to make the location. It in effect, admitted the location in evidence to the jury. Of course, this could not properly be done, unless the location was accompanied by proof tending to show that it was correctly made. And this proof cannot be deduced except by the aid of Solomon’s map, which we have already said was not admissible in evidence. The same remarks apply to the locations made from the same map in pursuance of plaintiff’s instruction to surveyor, No. 5. They ought not to have been admitted in evidence. We see no objection to the question to Anthony Davis in the thirteenth exception. But it would have been incompetent to show by parol testimony that the deed in question did not convey the property mentioned in it, according to its terms. It was competent, however, for Pugh to give by parol a license to Davis to pass over his land. In the seventeenth exception the defendants offered to prove a statement in writing made by Joseph P. Pugh who was dead at the time of the trial. It was in reference to the position of the Rhinehart stable, wdiich is one of the points in controversy. It was a memorandum which was not made in the — 609 — ordinary course of the declarant’s business or duty, and it is not within the rules relating to the admission of entries by deceased persons. We think that the testimony proposed to be given in the twenty-second exception was hearsay, and was therefore properly rejected. In the nineteenth exception a witness was asked from whom Rhinehart bought the lot where the stable was built. This fact could be proved by the deed, but not by parol. In the twentieth exception the same witness was asked from whom Rhinehart got possession of the lot. Possession is a fact which is provable by parol. The question was disallowed, but it ought to have been permitted. In the twenty-third exception the defendant offered to give in evidence the testimony of Everist, a witness who testified in the former suit, but who died before this trial. The Court properly refused to admit the evidence. The plaintiffs in this suit are the heirs at law of James A. Davis. In the former suit the plaintiffs were his administrators. The parties ai'e not the same, and there is no privity between them. Greenleaf says that “ there are privies in estate, as donor and donee, &c.; pi-ivies in blood as heir and ancestor, and co-parceners ; and privies in x-epx-esentation as executoi-s and testator, administx-ators and intestate; and privies in law, where the law, without piivity of blood or estate, casts the land upon another, as by escheat.” 1 Greenleaf on Evidence, section 189. No privity is suggested between the heir and the executor or administrator. They hold different estates. “ The heir has the same unconti-olled discretion in resisting claims against the x-ealty, that the executor or administrator has in regard to the personalty.” Collinson v. Owens, 6 Gill & Johnson, 10. A judgment against an executor or administrator is not even prima facie evidence of debt in a proceeding against the heir for the sale of the real estate for the payment of the debts of the deceased. Birely v. Staley, 5 Gill & Johnson, 453. This principle is said by the Court in the last mentioned case to be settled by frequent decisions in this State, so as to preclude all de — 610 — bate on the subject. And the cases are numerous and positive on this point. (Decided June 28th, 1898). The judgment must be reversed, arid a new trial ordered. Reversed and new trial.