Helms's Lessee v. Howard

The Court, refused to give the direction to the Jury prayed by the plaintiff’s counsel, because in the first part of the prayer they impliedly request the Court to restrict the Jury to the testimony offered by the plaintiff, only with respect to Charles Carroll’s dying seised of Cole’s Harbour; because the testimony produced by the plaintiff to prove the seisin aforesaid may be believed by the Jury, although they may not believe that fact to be supported by the testimony; and because the Court are of opinion, that the testimony produced by the defendant to controvert the fact of Charles Carroll dying seised of Cole’s ⁷⁶ Harbour and not of Todd’s Range only, is proper for the consideration of the Jury; and that the Jury only can determine whether he died seised as aforesaid, which fact is material in making out the plaintiff’s title. (Harrison, Ch. J. and Hanson, J.) (a) ⁷⁶ The Court Were also of opinion, that with what intention, by what right, a person entered into land and possessed it, and to what extent, were facts proper for the consideration and determination of the Jury, and, therefore, that the deed from James Todd and wife to Charles Carroll, was admissible in evidence, and such . from which, together with the whole evidence offered to the Jury in the cause, they might determine whether Charles Carroll entered into and possessed only the said tract of land called Todd’s Range. But that the said deed was not conclusive evidence of the fact, and that the plaintiff was at liberty to offer any evidence on his part to encounter or destroy any presumption that might arise from that deed, that he only entered under it; and might prove that he entered into and possessed the tract of land called Cole’s Harbour under the title of Thomas Cole the patentee thereof, or under the title of any other person.

And the plaintiff having stated in the opening of his case, that Charles Carroll, under whom he claimed, was in the seisin and possession of the tract of land called Cole’s Harbour, as heir at law to Thomas Cole the patentee thereof, by fiction and supposition of law, and also suggested in the second point made by him for the opinion of the Court, that he derived title under the said Thomas Cole the patentee. The Court were of opinion, that the law does not make a man in the seisin or possession of land, heir to another by fiction or supposition ; that conclusions of law are drawn from pre-established facts; and therefore, that when a man made title as heir to another, whether as a lineal or collateral heir, the law would not determine the fact, but he must prove ⁷⁷ it; but that, if an entry into land could afford any' presumption of atid under what character or description the person entering was, yet it could only be a presumption of the nature of evidence, and liable to be encountered and destroyed by other evidence; that presumptions of the nature of evidence could only stand till the contrary appeared ; and that suppositions must yield to facts. And the Court accordingly gave their opinion to the Jury, that if, upon the whole evidence submitted to them, they should be of opinion, that the said Charles Carroll last named, died in the seisin of the tract of land called Cole’s Harbour, as the plaintiff has located the same on the plat, and that the said location is true, and that the devisees of the said Charles Carroll after his death, entered in virtue of his will, and were possessed of Cole’s Harbour as located by the plaintiff on the plat, and that the devisees being so possessed, the said Daniel Carroll died in such possession, and that Charles Carroll, who executed the deed to the lessor of the plaintiff, was heir at law to the other Charles Carroll herein named, and that at the time of executing the deed he was possessed in the like manner, the plaintiff hath made -a sufficient title to the part of Cole’s Harbour agreeably to his pretensions, and the Jury ought, accordingly, to find a verdict for the plaintiff. But if the Jury should be of opinion, that the said Charles Carroll died seised only of that part of Cole’s Harbour which lies within Todd’s Range, and that he entered into and was seised of the same as Todd’s Range only, as located by the defendant, or if the Jury should be of opinion, that the said Charles Carroll died seised of Cole’s Harbour, but that the true location thereof does not include any part of the pretensions for which the defendant has made defence, then the Jury ought to find a verdict for the defendant. >**■■ The plaintiff excepted to this opinion. ⁷⁸ Second exception.

In addition to the grants of Cole’s Harbour and Todd’s Range, the plaintiff produced evidence to prove that the land so granted, had always since the grant of the tract of land called Todd’s Range, been held and possessed under the said James Todd’s title, from whence the plaintiff alleged that a title in fee-simple in the said land called Cole’s Harbour, upon a resurvey of which the said grant of Todd’s Range was made, would be presumed in the said James Toddt and the defendant, to encounter the presumption that the said James Todd was seised in fee as aforesaid, offered to prove by a witness, that it was the general reputation, that James Todd entered under authority of his mother under some contract, and not under any other title. To which the plaintiff objected. Cooke, for defendant. The principle contended for here by the counsel for the plaintiff, shows the absurdity of their former prayer to the Court.

In the preceding exception, they allege that it ought to be presumed that Charles Carroll held as heir of Cole, and yet they now give evidence to prove he held under Todd’s title. Seisin Is, prima facie evidence of holding the fee ; but is presumption only, and may be encountered by other testimony. Buller, 101. 290. Raym. 311.

Jenings, for the defendant. The plaintiff produced evidence, that since Todd’s resurvey, the land was held under Todd’s title j therefore, it was to be presumed, that the plaintiff had a title in Cole’s Harbour, on which the resurvey was made. The defendant offered to prove that Todd entered under his’ mother, under some contract, and not under any other title, to encounter the plaintiff’s presump-, tion. The Court, so far from being wrong in permitting the defendant’s evidence, would act properly in rejecting ⁷⁹ the plaintiff’s evidence.

Todd's being seised of Cole's Harbour is nothing to the purpose; for he only conveyed Todd's Range. For what presumption is there, that Carroll had a title in Cole's Harbour ? There was an enrolment law in 167"4, so that if he had a conveyance, it would probably appear. Would he have purchased Todd's Range if Cole's Harbour lay in it, and he was entitled to Cole's Harbour P Todd's deed to Carroll, so far from inducing a presumption that Carroll had a title to Cole's Harbour, is the strongest presumption against it.

If the Court let the plaintiff’s evidence go to the jury, it is right that the defendant’s evidence go likewise. The plaintiff’s might be rejected as not pertinent to the matter; but if pertinent, any presumption offered by the plaintiff, is in its nature proper to be encountered by evidence on the part of the defendant. This is another attempt to hear evidence only on one side. If Lord Manfield's case on presumption, King v. Alston, 5 Burr, is cited by the gentlemen, it may be answered by Almon's Parliamentary Debates, A. D. 1770, p. 19. &c.

In this debate, Mr. Dunning exposes the injustice of not suffering presumptive evidence to be encountered by other presumptions. The Court were of opinion, that the evidence offered by the defendant was admissible. The plaintiff excepted. Third exception.

The defendant, to prove the location of Cole's Harbour from the beginning at A., (admitted by the plaintiff and defendant,) from thence to B. and from thence to C., and then with the red lines, (see the plat annexed,) according to the defendant’s first location of the said land, offered in evidence the certificates of Lunn's Lot and Todd's Range, the runnings of ⁸⁰ which are in the following words : “ Lunn’s Lot, lying in Baltimore county, on the north side of Patapsco River, and on a branch called the North-West Branch, beginning at a bounded Hickory standing on the west side of the falls of the North-West Branch, and in the line of the land of Thomas Pert and Robert Benjor, called Salisbury Plain, and running with the line of the said land N. W, and by N. 38 perches, to a bounded Hickory in the line of the said land; then S. W. 165 perches to( a bounded Red Oak, then S. 40 perches, then W. N. W. 45 perches to a bounded Hickory by the head of a branch, then S. 125 perches to a bounded Red Oak, then W. and by S. 20 perches, then S. and by E. 40 perches, then S. E. 80 perches to a bounded Spanish Oak, then S. 60 perches to a bounded White Oak, in the line of the land of John Hotvard, called Timber Neck, then by the said land E. S. E. 74 perches to a bounded White Oak of the said Howard’s land, then S. E. 120. perches to a bounded Red Oak, standing in a bite of the North-West Branch, thence bounding on the said branch, lying up N. 50 perches to a bounded Red Oak, then N. N. W. 38 perches, then W. N. W. 100 perches, then N. and by W. 50 perches to a Locust marked with four notches, then N. N. E. 45 perches to a bounded Red Oak, in the line of the land of Thomas Cole, then W. 75 perches to ,a bounded Oak of the said Cole’s land, then by the said land N. N. E. 275 perches to another bounded Oak, then E. 65 perches to the falls, then bounding on the said falls to the first bounded tree.” “ Cole’s Harbour now called Todd’s Range, beginning at a bounded White Oak, standing in a line of a parcel of land formerly belonging to Alexander Mountney, and now in the possession of the said Todd, and running W. to a bounded Red Oak, standing by a small branch called the Spring Branch, then more west 75 perches to a double White Oak, in all containing 320 perches ; then ⁸¹ N. E. 273 perches to a bounded Red Oak standing on a hill, then E. 320 perches to a bounded Red Oak being a bounded tree of the aforesaid Mounteney’s land, bn the S. W. with the said Mounteney’s line to the first bounded tree.” And the said tract of land called Cole's Harbour is located on the plat (a) by the defendant, beginning at the letter A., thence to B., thence to C., thence with red lines to the beginning. Which certificates were offered in evidence, to prove that the trees marked at the said letters B. and C., were boundaries of the tract of land called Cole’s Harbour; also to prove that the said tract of land called Cole’s Harbour, run from the beginning to the letter B., thence to C., and no further west. To which evidence the plaintiff’s counsel objected; for that no evidence to prove a tree at the said place described on the plat at B., or to prove a tree at the place described on the plat at 6'., as trees of Cole’s Harbour•, (admitted tb be 279 perches only from the beginning at A.) for the purpose of shortening the distance of the first line of Cole’s Harbour from the letter A., which is expressed in the certificate to run. west 320 perches, and no tree being mentioned in the same. (See the expressions in the certificate of Cole’s Harbour in the next exception.) Therefore the evidence was inadmissible for the purpose of shortening the distance expressed in the first line of Cole’s Harbour, by the proof of trees, there being none called for in the certificate.

Of which opinion was the Court, (b) and to which the defendant excepted, which exception was signed by Hanson, J. only. ⁸² Fourth exception. The plaintiff, to maintain the issue on his part, read in evidence the grant and certificate of Cole's Harbour, which certificate certifies that there wai u laid out for Thomas Cole a parcel of land called Cole's Harbour, lying on the north side of Patapsco River, and on the north side of the North-West Branch, beginning at a bounded White Oak, being the westermost bounds of the land laid out for Alexander Mounteney, and running west to the mouth of a small gut, and over the said gut, and bounding on the said North-West Branch for the length of 32Q perches, then N. N¿ E. 275 perches, then E. 320 perches, bounded on the east by a line drawn S. S. W. to the first bounded tree, containing 550 acres of land, more or less.” The plaintiff als'o read in evidence an act of assembly, entitled “ an act ascertaining the bounds of land,” in the words following : (See this act in the appendix, ‘ No. 1.) It was admitted by the plaintiff and defendant., that the said tract called Cole's Harbour, begins at the place described on the plat at the letter A.; and it was also admitted, that the north-west branch of Patapsco River is delineated on the plat. The plaintiff, by his counsel, prayed the opinion of the Court, that the proper and legal construction and operation of the said certificate and grant of Cole's Harbour is, that from its beginning (agreed by the parties to be at the letter A.) it shall run west 320 perches* then E. N. E. 275 perches, then'E. 320 perches, and then S. S. W. to the beginning, and that all the land contained within the said courses and distances passed by the certificate and grant of Cole’s Harbour, to Thomas Cole the patentee thereof. (See the arguments of counsel under the 9th exception, where the 4th, 8th, and 9th, are argued together.) ⁸³ Alexander Contee Hanson, one of the Judges, delivered the following opinion.

The question before the Court arises upon the expressions in the certificate of Cole’s Harbour. As these cannot stand together, the opinion of the Court is prayed as to the true construction and operation of the grant. The question is not what estate passed by the grant; if that were the case, the Court might surely determine. Neither is the question what thing passes by the grant; if that were the case, it is equally clear that the Court might direct the Jury.

As if the grant were of a tract of land, running certain courses and distances, containing 500 acres, and no more, and such courses and distances should be found to contain 1,000 acres. If the question, at this time of day, could arise upon the construction of such a grant, as to what passed thereby, the Court would be the proper jurisdiction to decide. But the present case appears to be a question merely on the intention of the parties. This intention, from the inconsistent expressions in the grant, is doubtful ; and to discover it, we must resort to such evidence as does not contradict the grant; and this evidence is proper only for the consideration of the Jury.

One tiling is certain in the grant, that Cole’s Harbour must run 320 perches before the N. N. E. course of 275 perches can commence. This must be the case, or words in the grant, which admit of no doubt or diversity of opinion, must be rejected, and there could be no objection to directing the Jury as to this point. The inconsistent expressions are not doubtful, taken separately; but it seems all cannot be gratified. If one line runs west 320 perches, then the expression, bounding on the NorthWest Branch, is not complied with.

On the other hand, if the 320 perches are expended on the North-West Branch, then the expression, running west, is of no significance. The question, then, is merely as to the ⁸⁴ intent of the- parties respecting location; and that' question, the Jury only can, with propriety, determine, upon such evidence as does not contradict that part of the grant, which, in their opinion of the intention of the parties, must be allowed to stand. As to that part which is to be rejected, it must be then considered as" no part of the grant, and evidence may therefore be admitted to contradict it. But which part shall stand, and which shall fall, must be left to the Jury, who are to form their conclusions on evidence, to determine on which, is not within the province of the Court.

Robert Hanson. Harrison, Chief Judge, delivered the. following opinion. I have no objection to determining the quality or nature bf the estate that passed from the proprietor to Thomas Cole the patentee, or what land.; and if it were a fixed, rule and the established usage, in questions concerning location, that a patentee and those claiming under him, should only hold land according to. the location that arises from a construction made upon the patent itself, independent of, and in exclusion of, all other proof whatsoever, not appearing upon the face of the patent itself, I should have no objection to taking up the matter of location, and determining upon it. But as this is not the r.ule and established usage in questions upon location ; and inasmuch as the fact of location may be settled by other proofs, variant from that which would be setded from a mere construction, arising from a patent itself, independent of, and in exclusion of, all other proof, it is, my opinion, that the Court ought not to. direct the Jury in the case, so far as it concerns location, because their opinion, although founded on one piece of evidence only, might tend to impeach a location, where the location upon the whole proofs offered in a ease, might stand fair and good.

I consider location ⁸⁵ to be a fact, and that it may depend upon many ex post facto acts, such as the entry and possession, &c. of a patentee after the grant, and especially in cases where the expressions in a patent are doubtful, and where the words of a patent admit, in any degree, as in the present case, of what may be called a double location, or a location with two aspects. It is a fixed rule, that every grant and every deed shall be taken and construed most strongly against the grantor, and most beneficially for the grantee. If a grantor uses expressions in his grant which admit of a double location, or a location either in this or that way, it is in the power of the grantee to determine, he being the first agent after the patent granted, by an ex post facto act, his entry and possession, which of the two locations he will have. Hence it is evident, that the point of location may depend upon matter and proofs out of the patent itself.

And yet, if the Court were to decide in a case upon the patent alone, they might determine against that location which the patentee had elected to have by his entry and possession, and which the words of a patent, conformably to the rule'of law laid down above, that grants are to be taken most favourably for the grantee, would authorize. Upon the whole, the Court are of opinion, that they ought not to give the direction prayed by the plaintiff’s counsel, so far as it concerns the question of location. To this opinion the plaintiff excepted. Fifth exception.

In addition to the evidence before offered, the plaintiff produced in evidence several deeds, of the years 1711, 1759 and 1761, from different persons, conveying parcels of the tract called Cole's Harbour, as “ part of a tract originally called Cole’s Har - bour, but afterwards resurveyed and called Todd's flange.” ⁸⁶ The plaintiff also produced evidence to prove that the whole of Cole’s Harbour and Todd’s Range, as located by the plaintiff, except so much as is included within the lines of Twin's Tot, as located by the defendant, has ever been held and possessed from the time of the grant of Todd’s Range by the said James Todd and those claiming under him. And the Court having directed the Jury, that if they found these facts to be true, that they might and ought to presume that the said James Todd was seised in fee-simple of the said tract of land called Cole’s Harbour, at the time of obtaining the grant of Todd’s Range; but that the presumption arising from the above facts might be encountered by other evidence on the part of the defendant; but that the evidence then submitted by the defendant not being sufficient to encounter that presumption, they might and ought to determine that the said James Todd was seised in fee-simple of the tract of land called Cole's Harbour. But the Court did not, in this opinion or direction, determine the extent of the said James Todd’s title, with respect to the location of the said tract of land, nor did the Court determine the effect of the defendant’s possession under the title of Turin’s Tot. And the counsel of the plaintiff having further offered evidence to the Jury, to prove that neither James Todd, nor any other person claiming under him, had ever held or possessed any part of the tract of land called Cole’s Harbour lying on the west side of Jones’s Falls, except the said Charles Carroll the father, and those claiming under him, since the time of the said deed from James Todd and wife to the said Carroll.

The plaintiff’s counsel prayed the direction of the Court to the Jury, that if they should be of opinion, that the tract of land called Cole’s Harbour, and the tract of land called Todd’s Range, were, at the time of the execution of the said deed from Todd and wife tQ, ⁸⁷ Charles Carroll, reputed, and by the parties thereto taken and esteemed, to be the same, then the said deed was sufficient in law to pass to Carroll all the right and title which Todd had in the tract of land called Cole's Harbour, except so much thereof as is contained and described in the deed from Todd and wife to Hurst. Cooke, for defendant. The prayer on the part of the plaintiff is, that if the Jury should think it was intended by the conveyance of Todd's Range to pass Cole's Harbour, that the Court should direct that it is sufficient for that purpose. No evidence can be admitted to contradict a deed. 2 Bl.

Rep. 1249. 1 Sir a. 646. 974. The deed is sufficiently plain and intelligible, therefore no doubts can arise as to the construction of it. The verdict of the Jury will ascertain the location of Todd's Range, and if that and Cole's Harbour are the same, the latter cannot extend beyond it. The plaintiff can have no injury done him but by supposing Cole's Harbour to extend beyond it, and, therefore, on his own principles, it is not conveyed by the deed.

The Court were of opinion, and accordingly directed the Jury, that no part of the tract of land called Cole's Harbour, except that part which lies within the lines of the tract called Todd's Range, passed by the deed from Todd and wife to Charles Carroll, and that there being no doubt in the construction of the deed with respect to what land passed thereby, the Court were of opinion, and so directed the Jury, that no evidence out of the said deed was admissible, to prove that more or other land was intended to be conveyed than is contained within the lines of the tract called Todd's Range. To which opinion the plaintiff excepted. (Harrison, Ch. J. and Hanson, J.) ⁸⁸ Sixth exception.

The plaintiff, also, in addition, produced evidence to the Jury, to prove that the whole of Cole’s Harbour, as located by the plaintiff, except so much as is included within the lines of Lunn’s Lot, as located by the defendant, and claimed by her under the patent thereof, and such part thereof as is located upon the plat, as conveyed from jfames Todd to John Hurst, has been held and possessed from the year 1701, by Charles Carroll the father, and those claiming under him. The plaintiff also produced evidence to the Jury, to prove that he entered in virtue of the deed to him from Carroll into the land in the said deed mentioned, and actually possessed a part thereof, and erected houses thereon, and remained so possessed. Whereupon the plaintiff’s