Davis v. Furlow's Lessee

Bartol, J., delivered the opinion of this Court. The questions for decision on this appeal arise upon the prayers. The suit was brought on the 20th of March, 1860. The appellee was plaintiff below, and claimed title to the land in controversy, under a patent from the State granted to John Hoye, on the 30th of March, 1841, and a deed from Hoye’s executor, dated the 13th of March, 1860.

There is no dispute about locations, and under the patent and deed, it being admitted in the cause that Hoye’s executor had power to convey ; the paper title is in the plaintiff. The defence to the action rests upon a claim by adversary possession, and to maintain this the defendant gave in evidence a deed from Andrew Bruce, sheriff, to the Cumberland Bant of Allegany, dated the 12th of April, 1825, purporting to convey certain lands seized and sold under an execution as the property of one Thomas Monnett; the judgment, execution, levy and sale being admitted to be regular, and the production of the judgment and execution being waived: also, a deed from the bant to the defendant, dated the 21st of April, 1851, conveying the sa,me lands, and a subsequent deed from the bant to the defendant, dated the 21th of March, 1863, conveying by metes and bounds the two parcels of land in dispute, and which are embraced in the lines of John Hoye’s patent of March, 1841. Evidence was also offered by the defendant of the possession of the land in controversy by Thomas Monnett, and by the bant after it obtained the deed from the sheriff. It appeared from the location of the lands described in the deed from Bruce to the baht, that the land in controversy was not embraced therein, and the Circuit Court instructed the jury, if they found that fact — “ then no presumption of title in said bant can be made to the lands now in controversy, from the fact of said conveyance by said deed, or from the previous possession of them by .those holding or possessing the same, prior to the exe ⁵⁴⁵ cution of said deed.” These propositions are contained in the first prayer of the plaintiff, and in our opinion there was no error in granting it.

It is very clear that the bank could derive no title under the deed to any lands not conveyed thereby. The. property conveyed by the deed consisted of certain parcels of land therein described, not comprising the land in controversy ; it does not profess to convey any land held by Monnett by mere possession, without color of title; it is very clear, therefore, that any such possession by Monnett or others, under whom the bank claimed title by the deed, could not enure .to the benefit of the bank. The second prayer of the plaintiff asserts, that if “the bank had the lands now in controversy, in possession by actual inclosure from the time of the execution of the sheriffs deed, till the year