Cadwalader v. Price

Boyd, C. J., delivered the opinion of the Court. This is an appeal from a judgment rendered in favor of the defendant (appellee) in an action of ejectment instituted in Harford County and removed for trial to the Superior Court of Baltimore City. The land sued' for is described in the declaration by courses and distances, and contains one-half acre, more or less. A plea of not guilty was entered short on the docket, but defence on warrant was not taken.

Thomas Domey, by his last will and testament, which was probated February 6th, 1814, devised to Jackson Domey, his son, a plantation called “King’s Hill,” and a tract called “Savory’s Farm.” By deed dated September 10th, 1852, Jackson Domey and wife conveyed' to George' Hartman all that tract known by the name of “King’s Hill,” “excepting and reserving to him the said Jackson Domey and his heirs and assigns forever the landing and the free use and privilege of the same situated at the head of King’s Creek, with the right of way to and from the same through, along and over the ³¹² said land hereby conveyed at and' along such convenient road or way as may be deemed reasonable and proper to approach the said landing.” On March 2d, 1856, George Hartman conveyed to Thomas J. Cochran all that part of a tract or parcel of land called “King’s Hill” contained within the metes and bounds, courses and distances therein set forth, “being the same lands described in a deed from Jackson Domey and wife to George Hartman * * * and subject to the exceptions and reservations therein made.” Thomas J. Cochran and wife conveyed by deed dated December 5, 1861, to General George Cadwalader two tracts, including that conveyed by the last-mentioned deed, “except and subject to the landing and right of way reserved in and by the deed for the same lands from Jackson Dorney to George Hartman dated,” etc. It is admitted that the plaintiff became entitled to all the property conveyed to George Cadwalader by the deeds in evidence. The real controversy in the case arises from the exception and reservation in the deed from Jackson Domey and wife to George Hartman above set out, but involved in it is a deed from Jackson Domey and wife to John Price, father of the defendant, and Salathiel Legoe, dated September 11th, 1860, which was admitted by the Court below. That deed grants “all that part of a tract of land called ‘King’s Hill’ situate in Gunpowder Keck in Harford County, known as the landing on King’s Creek, which was excepted and reserved by us, the said Jackson Dorney and' Hannah J., his wife, in a deed from us * * * to George Hartman * * together with the right of way to and from said landing and all other rights, privileges and immunities reserved by us,” etc. The record shows that four-sixths’ interest in whatever property was thereby conveyed was in the defendant, and that the remaining two-sixths were vested in one of the heirs of said Legoe, and in William T. Price. The appellant claims under the deed to Hartman, and the appellee under ■the exception and reservation, and also by adverse possession, ³¹³ as well as through the deed to John Price and Salathiel Legoe.

Although a number of prayers were granted, at the instance of both sides, no exceptions were taken to the rulings on the prayers, but there are ten bills of exception presenting rulings as to the evidence. The first and third can be considered together. The first was to the admission of the deed from Dorney to Price and Legoe above referred to, and the third was to overruling a motion to exclude that deed, which was made at the end of the case. Without discussing other grounds for its admissibility, we are of the opinion that it was admissible to show color of title.

It grants “all that part of a tract of land called ‘King’s Hill’ situate in Gunpowder Keck in Harford County, known as the landing on King’s Creek,” etc There is abundant evidence to show that there was a parcel of land known as “King’s Creek Landing” by some, and as the “Landing on King’s Creek” by other witnesses. William E. Stevens testified he had known King’s Creek Landing thirty or thirty-five years, although he did not know the boundaries until Jackson Dorney pointed them out in 1883, the effect of which we will consider later. Martin Gallion, who was fifty-one years of age, testified he had known King’s Creek Landing since he was about fifteen, but he did not know the boundaries until 1883. Boyd Preston said he had known King’s Creek Landing for many years, but he did not seem to know the boundaries until Mr. Dorney pointed them out.

John S. Price, who was forty-five years of age, had known “the landing on King’s Creek” since he could remember. He spoke of two stones on the western' boundary but the record is not clear, that he knew the boundaries before 1883. Daniel Sullivan, who lived on the Savory Farm from 1861 to 1882 and then moved on King’s Hill Farm, where he lived for three years, spoke of it as King’s Creek Landing. Joseph A. Price, a brother of the defendant, testified that he was seventy-one years of age and had lived about six or' seven miles from King’s Creek Landing nearly all his life, that he ³¹⁴ had known the landing at the head of King’s Creek since 1850, had been on it before his father purchased it and it was called King’s Creek Landing, that there was no other place, so far as he knew, that went by the name of King’s Creek Landing or the landing on King’s Creek, that he knew the stones referred' to by. the witnesses (claimed to be the western boundary) long before his father purchased the property, remembers having seen them as early as early as 1852 and saw them from time to time until 1888; that when he first went there, Jackson Dorney was in possession of King’s Creek Landing and that his father paid taxes to him on King’s Creek Landing while he was tax collector in 1884, 1885, 1886, 1887 and 1888.

He also said that the road to the landing was not in the same place that it now is, but was changed about 1864 when Mr. Cochran owned King’s Creek farm and had been in the same place ever since. W. E. Somerville, county surveyor of Harford County, testified that he made the. survey of King’s Creek Landing shown on the plat filed in this case, that he fixed the western boundary by drawing a line from a point at the head of a marsh making up from King’s Creek, pointed out as the place where a boundary stone formerly stood, near a gum tree, through another point near the bank of the southwestern branch of King’s Creek, pointed out as the spot where formerly stood a boundary stone under a white oak tree and that the remaining boundaries of King’s Creek Landing consist of following King’s Creek around to the marsh first mentioned' and up to the point of beginning. That is the description of King’s Creek Landing as claimed by the defendant. The parcel of land claimed by defendant as the landing is less than half an acre, and while most of the witnesses did not know the boundaries of it except as pointed out in 1883 by Jackson Dorney, there was unquestionable evidence tending to show that there was a parcel of land known as King’s Creek Landing, or landing on King’s Creek.

If the location of it could be proved, the reference to it in this deed was sufficient. It is as definite as the description of land in the deed from ³¹⁵ Dorney to Hartman, under which the plaintiff claims,— “King’s Hill.” By sec. 22 of Art. 75 of the Code it is provided that: “It shall not he necessary to state the name by which land may have been patented in declarations in actions of ejectment, dower, trespass or ease, but the same may be described by abuttals, course and distance, by any name it may have acquired by reputation, or by any other description certain enough to identfy the same.” See also Jay v. Michael, 82 Md. 12 ; Winter v. White, 70 Md. 305 , and Huddleson v. Reynolds, 8 Gill, 332 . In the latter case a tract patented as “Western Route” was sometimes called “West. Route.” The Court said “The conclusion seems to be warranted that the tract which, when taken up, was called by the name of ‘Western Route’ was in a later time sometimes called West, and sometimes Western Route.

If so, a conveyance by the name which it had acquired by reputation would have passed the title to the patented tract.” It would seem clear, therefore, that the deed on its face was admissible, and it only remains in that connection to determine whether the evidence sufficiently shows that there was such a tract, capable of definite location. In addition to the evidence we have already referred to, we will now consider the fourth bill of exceptions, which presents for review the action of the lower Court in overruling the motion to strike out the testimony of the witnesses in reference to the declarations and acts of Jackson Dorney. He went upon the land in 1883 and pointed out to a number of persons, who were witnesses in this case, the lines of King’s Creek Landing — -telling them that a line between two stones which were then there (and the places where they stood were located on the plat by the surveyor) was the western boundary, and a marsh from the north stone to King’s Creek was the northern boundary and King’s Creek was the eastern and southern boundaries. There ought no longer to be any question in Maryland about the right to prove private boundaries by the declarations of deceased persons, subject, of course, to certain well recognized limitations.

If such ³¹⁶ evidence were excluded, on the ground that it was hearsay, it would he impossible, in portions of the State where there is still controversy over boundary lines, to establish the corners and lines of ancient tracts. It is said in Dorsey on Ejectment, 57-58: “It may be asked, how can a witness be called to identify a boundary made in 1680? The law does not require this.