Doe ex dem. Campbell v. Fletcher

Bartol C. J. delivered the opinion of the Court. This appeal is frona the Superior Court of Baltimore City, in an action of ejectment instituted by the appellants against the appellee, to recover possession of a lot of ground situated in Baltimore City. It appears by the bill of exceptions that when the plaintiffs’ Counsel had made his opening statement to the jury, the Superior Court upon the prayer of the defendant, instructed the jury £c that even if they should find all the facts which the plaintiffs have stated and offered to prove, the plaintiffs have not laid the foundation for a recovery in this action, and their verdict ought to be for the defendant.” ⁴³³ In disposing of this appeal therefore, we must consider the facts contained in the statement, as proved or admitted. They are as follows: Jacob Sleeper, the maternal grandfather of the plaintiffs, under whom they claim, was in 1808 in actual, adverse and notorious possession, by enclosure, of a parcel of ground, of which the lot in controversy is a part; and in 1818 died in possession as aforesaid, leaving a paper writing purporting to be bis last will, signed by'two witnesses.

By which paper he devised the parcel of ground aforesaid to his four sons, Isaac, Abraham, John and Joshua, and his daughter, “Philipina,” the mother of the plaintiffs. That the four sons moved away from the city, returning at intervals, and the daughter, “ Philipina,” continued to live in the house, and to possess the premises aforesaid, from the death of her father in 1818 till 1840, when the house was burned down, and she and her children moved to a house in the neighborhood, off the property, where she resided till her death in 1855. During that period she continued to claim the property, and exercised acts of ownership, (so far as asserting to her children that she was owner, constituted such acts, together with statements, made by ber to them, in reference to an application made to her by a person, to rebuild her house, and her reasons for not rebuilding), “Isaac, Abraham, John and Joshua Sleeper, and their descendants are all dead ; and the plaintiffs are the only heirs at law of Jacob Sleeper.” “The plaintiffs claimed the lot fn controversy by a possessive and not by a paper title.” In answer to a question from the Court, the counsel stated, that “he did not expect to prove actual, adversary possession by the plaintiffs or their mother, within