Bloodsworth v. Murray

Adkins, J., delivered the opinion of the court. This is an appeal from an order of the Land Commissioner dismissing a caveat. A certificate of survey was filed Hay 20th, 1920, by Levin H. Hall, Surveyor of Somerset County, as follows: “Certificate of Survey. “(Returned and Piled Play 20, 1920.) “State of Maryland, Somerset County, to wit— “By virtue of a Special Warrant for one acre issued on the 1st day of PEarch, 1920, by the Commissioner of the Land Office of Maryland to Alpheus B. Murray and Wade Bloodsworth, of Mt. Vernon Election District, Somerset County, Maryland, and to me directed, requiring- me to survey a certain tract or parcel of Vacant Land situate, lying- and being in Mt.

Vernon Election District, Somerset County, Maryland: “I hereby certify that as Surveyor of said Somerset County, Plaryland, that after giving at least one month’s notice, prior to beginning the execution of the said Warrant, by inserting the attached notice in the “Marylander and Herald,” a weekly newspaper published in said Somerset County, of the State of Maryland, two consecutive times, to wit, on the 9th day of March, 1920, and on the 16th day of March, 1920, and complying with all other laws in such cases made and provided for, I have carefully surveyed for and in the name of them, the said Alpheus B. Murray and Wade Bloodsworth, a certain tract or- parcel of vacant land situate, lying and being in Mt. Vernon Election District, Somerset County, Maryland, and more fully described as follows: ⁶³³ “Beginning for tlie same at a locust post and iron bounder on the eastern side of a body of water or stream of water called and known hy the name of the ‘Lower Thoroughfare’; thence running up the said Thoroughfare and binding on the eastern side thereof the two following courses and distances, viz: north eighteen degrees east fourteen poles, north sixty-eight degrees east ten poles to the mouth of Sassafras Gut; thence up said Gut and binding on the southern shore thereof the two following courses and distances, to wit: east twenty-two poles, south sixty-five degrees east twenty-two poles; thence running south' twenty-eight degrees east twenty-nine and one-half poles across the marsh to the ‘Upper Thoroughfare’; thence running down the western short of the said -‘Upper Thoroughfare’ and binding thereon the four following courses and distances, viz: south twenty-seven degrees west four and one-half poles, south twenty-six degrees east fourteen poles, south forty-two and one-half degrees west thirty-six poles, south fifty-three degrees west fifty-two poles to the shore of Monie Greek; thence running up said Greek and binding thereon north forty-five degrees west six poles, north five degrees east forty-two poles, north five degrees west forty-four poles to the beginning, and containing thirty-four acres, more or less. “To he held hy the name of ‘Murray and Bloods-worth Island.’ “The above tract of land consists entirely of marsh land and has no improvements thereon. It has within its lines no navigable waters. The chain carriers on the survey were duly sworn. “Surveyed the 10th day of April, 1920. “Per Levin H. Hall, “Surveyor of Somerset County, Maryland.” With the certificate1 a plat was. filed, and a certificate of publication of the required notice hy the surveyor.

Upon the certificate of survey the following endorsement appears: ⁶³⁴ “Land Office of Maryland, “Annapolis, Md., June 3d, 1920. “Examined and passed, subject to correction of lOtb course and closing line. “Jas. S. Shepherd, “Com’r Land Office.” Oto July 7th, 1920, Virginia K. Bloodsworth, the appellant, filed a caveat to the issuing of a patent to the appellees on the certificate filed, and assigned the following reasons: “First — -Because the land, or the greater part thereof, included in said certificate is land which is also included in patents which formerly issued out of the Land Office of Maryland, and known as 'Covington’s Meadow,’ 'Comfort’s Adventure,’ 'Father’s Care,’ 'Middle,’ 'Comfort,’ and 'The Lot’; that the land included in the said certificate of Alpheus B. Murray and Wade Bloodsworth is included in one or the other of the above named patents which formerly issued out of the Land Office of Maryland, has never since escheated to the State of Maryland, and is now owned by the caveator, as life tenant, under the last will and testament of her husband, John Robert Bloodsworth, late of Somerset County, deceased, which said will is duly recorded among the Wills Records of Somerset County in Liber H. H. D. Ho. 6, folios 229, etc. “Second — Because the land mentioned in said certificate of Murray & Bloodsworth is the same land or a part thereof conveyed unto John Kirwan by deed from Ellicott Kirwan, dated the 26th day of February, 1817, and duly recorded among the Land Records of Somerset County in Liber I. D. Ho. 2, folios 269 et seq., the land conveyed therein being sixty-five acres on the north side of the' great Monie Creek and bordering thereon; and also the same land or a part thereof conveyed to John Kirwan, Jr., by John Kirwan, Sr., made on the 30th day of April, 1832, and duly recorded as aforesaid in Liber G. H. Ho. 6, folio 226, and also by deed from Wm. A. D. Bounds and wife, dated August ⁶³⁵ 21st, 1837, and recorded in Liber G. H. Mo. 9, folio 230, and describing the lands conveyed therein as parts of patented tracts called, respectively, ‘Covington’s Meadow,’ ‘Comfort’s Adventure,’ ‘Father’s Care,’ ‘Middle,’ ‘Comfort,’ and ‘The Lot’; which said land was afterwards upon the death of John Kirwan laid off and divided by a Commission appointed by the Circuit Court for Somerset County, the proceedings of which said Commission is duly recorded among the Judicial Records of Somerset County in Liber L. W. Mo. 1 Judicials, folios 240 et seq., and all the said land conveyed by the said Commissioners, viz: Levin Ross, ¥m. A. D. Bounds, Geo.

Jones, and Win. F. W. Miles, to said John Robert Bloodsworth by deed made the 3rd day of February, 1866, and recorded in Liber I. W. Mo. 9, folios 440, etc. (some of the heirs of the said John Kirwin having already granted their interests in the said land to said John R. Bloodsworth). “Third — That the land mentioned in the certificate of said Alpheus B. Murray and Wade Bloodsworth is the same or a part of the same land now owned and in the possession of your caveator by virtue of the last will and testament of her husband, John R. Bloods-worth; that it is the same land or a part thereof which the said John R. Bloodsworth acquired by virtue of the said deed from the said Commissioners to lay off and divide the land of John Kirwan, and by virtue of deeds from the heirs or some of the heirs of said John Kirwan, and also the same land or a part thereof which the said John Kirwan acquired by the said deeds from Ellicott Kirwan, and from John Kirwan, Sr., and others; and also being the same or a part of the same lands included in several patents as aforesaid, viz: Covington’s Meadow, Comfort’s Adventure, Father’s Care, Middle, Comfort, and The Lot; which issued out of the Land Office of Maryland long before the filing of said certificate by said Alpheus B. Murray and Wade Bloodsworth. That it has never since escheated to the ⁶³⁶ State, therefore the State lias no right, title or interest to grant. “Fourth — That the said caveator and those under whom she claims, is now and for a long time, so long that the mind of man runneth not to the contrary, has been in open, exclusive, continuous, and uninterrupted possession of the said land, and has always and does now pay taxes thereon to the Oounty Treasurer of Somerset County, there being now as has always been 104 acres of marsh laud assessed to the caveator on the tax-assessments hooks of Somerset County, on which your caveator does now and has for over 30 years paid taxes, both county and State, which said 104 acres of marsh land includes the land mentioned in said certificates of said Alpheus B. Murray and Wade Bloodsworth. “Fifth — Because before the issuing of the warrant under which the alleged survey of Murray and Bloods-worth’s Island’ ivas made, this caveator and those under whom she claims has be,en in the open, exclusive, adverse, continuous and uninterrupted possession of the land mentioned in the said certificate filed herein by the said Alpheus B. Murray and Wade Bloodsworth, for more than twenty years.” The answer of eaveatees filed August 2nd, 1920, denies the allegations of paragraph one of caveat; denies the allegations of paragraph two and three of caveat that the land mentioned and described in tbe certificate for “Murray and Bloodsworth Island” is the same land or any part thereof which was conveyed by the deeds mentioned in said paragraphs, and avers that the tract- of land conveyed by the aforegoing’ deeds begins at the mouth of-'Sassafras Gut and is located north of said gut, and that the land mentioned and described in said certificate begins near the month of Sassafras Gut, is located south thereof, and lies between said gut and Mooxie Creek; it further avers, in answer to said paragraphs, -that the land mentioned in said certificate is not the same land or any part thereof which was laid off and divided upon the death of the ⁶³⁷ said John Eurwau by commissioners appointed by the Circuit Court for said county and sold by s-aid commissioners to the said John Robert, Bloodsworth, and afterwards conveyed by said commissioners to said Bloodsworth, and that it is not the same land or any part, thereof which was conveyed unto the said Bloodsworth by deeds from the heirsi or some of the heirs of John Kirwan; but that so much of said land so sold and conveyed to Bloodsworth by said commissioners and otbei’s as is located south of the county road as, shown on the plat, and described in, the certificate of survey filed in said judicial proceedings does not extend to or hind upon the waters of the Sassafras Gut or Monie Creek, and does not ■adjoin the land or any part thereof mentioned and described in the certificate for “Murray and Bloodsworth’si Island”; and further avers that the said Bloodsworth did not own the land mentioned, and described in said certificate or any part thereof and did not devise1 or attempt to devise said land or any part thereof to the caveator or to any one else; it, denies the allegations of the fourth paragraph of the caveat that the caveator, or those under whom she claims, is now aud for a long time hasi been in open, exclusive; continuous and uninterrupted possession of the land mentioned in said certificate or any part thereof, or ever paid taxes thereon; it denies the allegations of the fifth paragraph of the caveat that, before the issuing of the warrant in this ease, the caveator and those under whom she claims, have been in the open, exclusive, adverse, continuous and uninterrupted possession of the land mentioned in said certificate for the past twenty years, and avers that said land is an enclosed, unimproved parcel of marsh land and that such use, if any,' as said caveator or those under whom she claims have made of said land within said period of time has, been in common with the public generally. On October 7th, 1920, the commissioner passed an, order -setting the caveat down for hearing on Hovember 12th, 1920, and directing the surveyor of Somerset County to lay down any lands which by either party he might be directed to lay ⁶³⁸ down to illustrate the matter’ in dispute, and that depositions be taken before a notary public or the examiner of the Circuit Court, on five days’ notice, to he read in evidence on the hearing of said caveat, “provided, that in case of depositions taken on the part of the caveator, a copy of this order be served on the defendant at or before the serving of the subpoena in this case issued.” * Testimony taken before a special examiner appointed in these proceedings was filed November 27th, 1920.

Caveator offered the will of John R. Bloodsworth, by which he devised to his wife, the caveator, during her widowhood, “all the real estate I may die possessed of, with all the improvements thereon,” dividing said real estate amongst his children in remainder. The caveator testified she was the widow of testator and the owner and possessor of the real estate devised by him, and had been for twenty years. • There were also offered the following: Patent of “Covington’s Meadows”; patents, of “Comforts Adventure”; deed from Robert Leatherbury, sheriff, to John Kirwan; deed from Richard Ingersoll to Jacob Kirwan; deed from Jacob Kirwan to Elliott Kirwan; deed from Elliott Kirwan to John Kirwan;- deed from John Kirwan, Sr., to John Kirwan, Jr.; deed from the commissioners to divide the John Kirwan lands to John R. Bloodsworth. Caveatees objected to the above patents and deeds as evidence because they had not been located “and for other reasons.” It appears from the evidence that the caveator was one of the children of John Kirwan, Jr., and that the land conveyed by the commissioners to John R. Bloodsworth were those which the said Bloodsworth elected to take in right of his wife. Caveator testified the land wasi patented as “Comforts Adventure” and “Covington’s Meadows”; that she never heard of her title to the marsh land between the two thorougjhfares ⁶³⁹ being disputed “until six years ago somebody tried to take a ■piece of it