Gent v. Lynch

Bartol, J., delivered the opinion of this Court: This action was instituted by the appellee. The first and second counts of the declaration are in case for slander of the plaintiff’s title to a parcel of land situate in Baltimore county, containing about twenty-three acres, being part of a tract called “Stansbury’s Plains,” and distinguished by the name of “Nackey Ford’s Lot.” The third count is in trespass, for breaking and entering the same land, and cutting and carrying away wood. The defendant pleaded “Not Guilty.” The jury found a general verdict for the plaintiff. At the trial below the'plaintiff offered one prayer, which was granted, and the defendant twelve, of which the 1st, 4th, 8th and 10th were granted, and the others refused; the defendant excepted.

The 8th, 9th and 12th prayers refer to the first two counts of the declaration, and will first he considered. ⁶³ The 9th prayer asserted that the plaintiff bad failed to offer any evidence of malice upon the part of the defendant in forbidding the sale, or want of probable cause in the defendant making the declarations offered in evidence in reference to said sale. This makes it necessary to refer to the proof. Evidence was given that the plaintiff offered the property for sale at public auction in 1859, that the defendant was then present and forbid the sale, declaring that the plaintiff’ had only a dower interest in the land, and had no right to sell it, and that it belonged to him. It further appeared from the evidence that the defendant had been advised by Mr. Boarman, his counsel, to forbid the sale.

Evidence was given that the land had been sold by a constable, and the defendant had bought it; but Mr. Boarman testified that his advice was given upon the representations made to Mm by the defendant,. “ that he had purchased the property and owned it, and that the sale made to him by the constable had been reported to the Court and ratified; which statement he, Mr. Boarman, af-terwards found, by an examination of the papers, to be false; the sale by the constable had not been ratified, but had, in fact, been rescinded and set aside.” Mr. Boarman further testified that “when he afterwards informed the defendant of the true state of the case, he said he had been altogether misinformed, but admitted he had never paid the purchase money.” Upon this proof we think the Circuit Court was right in submitting to the jury the question of malice and bonafides on the part of the defendant. This was done by the 8th prayer, granted by consent; and there was, consequently, no error in rejecting the 9th prayer. In our opinion the 12th prayer was properly rejected also; the law upon the subject was correctly given to the jury in the 8th prayer. It is stated in the bill of exceptions that the plaintiff offered in evidence a deed from the heirs of George Lynch to- ⁶⁴ the plaintiff.

The deed itself is not contained in the tran - script, the clerk certifying that it is not on file in the Court below. In the absence of the deed, it must be presumed that the rulings by the Circuit Court, with regard to it, are correct, and therefore this Court cannot say there was error in rejecting the 2nd and 3rd prayers. There remain for our consideration the 5th, 6th, 7th ahd 11th prayers, and the instruction granted to the jury, on the prayer of the plaintiff. (5th.) The 5th prayer asserts the proposition that the plaintiff, being only tenant in common of the land, could not maintain the action without joining her co-tenants.

The general proposition that in personal