Hoye v. Swan

Tuck, J., delivered the opinion of this court. This is an ejectment, for a tiact of land called “Skipnish,” in Allegany county, patented to John Swan, under whom the plaintiffs claim, in 1803. The defendant below (the appellant) claims title to a part of this tract under a survey made for John Hoye, in pursuance of the act of 1839, ch. 34, the certificate of which was assigned to the appellant and a patent, issued to him, on the 4th April 1842, for “Ratler.” , ²⁴⁴ The plaintiffs proved their legal title, but offered no evidence of possession. The defendant offered in evidence the act of 1839, ch. 34, the certificate, assignment and patent for Ratler, and the deposition of James Childs, returned with the warrant of resurvey.

The defendant took five exceptions, the first four to refusals of the court to grant prayers tendered by him, and the fifth, to one granted at the instance of the plaintiffs. The first and second exceptions present questions underthe act of 1839, ch. 34, the first asserting that the patent granted to the defendant for Ratler “is a positive bar by limitations,”, apd the second, that if not a bar it is evidence of adverse possession by John Hoye, claiming title for twenty years prior to the date of the survey under which that patent was granted. The act of 1839 is supplemental to that of 1818, ch. 90, entitled: “An act to quiet possessions and prevent suits at law.” The counsel for the appellant insists, (hat they must be construed together, and that when so construed, the last must receive the construction put upon it by him, viz., that it applies to any lands, vacant or not, because the legislature must have intended to confer some right not granted by the former act. This would be a strong argument in a case in which it was clear that no other additional right was conferred but the one contended for on this appeal.

But even then it might be well doubted whether the legislature did not exceed its authority in passing the act. The State may take private property for public purposes, but she has no more right to take one man’s land and confer it upon another, than that other has to take it for himself without the assent of the owner. Does it need any argument to show that the State cannot any more than a citizen grant what she does not own? Cases of conflicting grants not unfrequently occur.

The elder patent prevails over the junior for the simple reason, that the State, in granting the last, has undertaken to do what she could not accomplish — to pass a title to land that did not belong to her. So in escheat patents, the party claiming against the patent may show that the State had no title at the time of the grant, because the land was not liable to escheat. ²⁴⁵ But when construed together, the last act does give a remedy as to vacant lands not conferred by the first, and this we think is its true meaning. Prior to 1839, and notwithstanding the right conferred by the act of 1818, a person in possession of vacant lands for more than twenty years was liable to be disturbed and put to expense at the suit of any person who might obtain a warrant for the same land, and to lose the land unless he could prove the possession required by that act, which, after the lapse of years, it might be difficult to do. The act of 1839 enabled a party so situated to obtain a patent for the land without going through the forms and delays of the land office, and at less expense, and thus prevent any other person from obtaining a patent.

By this short process, he united the title with his previous possession, and acquired a right as against the State and all persons claiming by subsequent grant; whereas, under the former act his title depended on possession alone, and if he failed from any cause in proving this possession, his right to the land was gone when assailed by a party armed with a grant from the State. This act gave to possessors of public lands this important advantage over those conferred by that of 1818. But the act does not make the patent, when obtained, conclusive against all persons. It merely authorises one to be issued on compliance with its provisions.

The grantee takes it subject to the rights of other persons, and these are to be determined by the courts in like manner as other grants from the State. In the absence of any thing in the act clothing this species of patent with an absolute and conclusive character, it should not be allowed such effect by construction, because there are many reasons why they should be governed by more stringent rules than grants obtained in the ordinary way. The third exception presents the question of title by limitations, the defendant showing no title. This leaves out of view all notice of the act of 1839, and we are now to consider the case as if that act and the proceedings under it had not been introduced.

It appears that John Swan’s patent was granted in 1803, for eight hundred and eighty-eight acres, when that section of the State was in a wild and uncultivated condition, ²⁴⁶ which, it may be inferred from the record, has not much improved. The defendant claims thirteen hundred and seventy-acres, the larger part of which is within the lines of the plaintiffs’ grant, “Skipnish.” It appears from the aforesaid affidavit of James Childs and the plats in the case, that John Hoye leased these thirteen hundred and seventy acres to James Childs, the father of the witness, about the year 1820, who took possession and soon after built a dwelling house and barn on a part of the land not within the lines of “Skipnish.” -In what this possession consisted we are not informed. The foundation of these houses were all that remained of them in 1851, when the warrant was executed. When they became dilapidated and what kind of possession was thenceforward continued does not appear.

Within two years after taking possession a fence enclosure was made of a few acres, one line of which remains, but no part of this enclosure is within the lines cf “Skipnish.” W'ithin its lines, however, there is a portion of about ten or fifteen acres on which Childs cut rail timber and fire-wood, and probably some building timber; and the witness showed the stumps of six of these trees that he had cut more than twenty years before 1851. At a greater distance from the dwelling.; and on “Skipnish,” he showed the stump of a tree near an old tar-pit which had been cut down for boards. This tar-pit was burned by Childs (bitty years before. The land near to and surrounding the tar-pit was then used by Childs.

The whole of this land was run out by John Hoye at the lime of the lease, and is the same that is now called “Rader.” Childs lived on the land as Hoye’s tenant for seventeen years,' and was succeeded by Summers. The witness also says, that during all this time Hoye had peaceable possession of (he land and kept off all persons trespassing thereon, but he does not show the character of this possession. It does not appear that the plaintiffs, or those under whom they claim, ever had actual possession of any part of the land. The counsel for the appellant concedes, that if the plaintiffs had actual possession of any portion of the land covered by their title, the defendant could not recover upon adverse pos- ²⁴⁷ session any thing beyond his actual enclosures, on the authority of Cheney vs. Ringgold, 2 H. & J., 87 .

But he insists, that the doctrine of mixed possession, as established in Maryland, does not apply to the present case, and that the defendant is entitled to recover, on the authority of Brooke vs. Neale, decided at December term 1829, and referred to by the publisher of Dorsey on Ejectment, at page 40. It is to be regretted that the decision of such an important case, elaborately argued as we are informed, should have passed sub silentio, more especially as we are without the notes of the counsel, or of the reporter, to show the points made at the trial. It would seem, from the view taken of that case, in the note to Dorsey’s Ejectment, 40, that, in the opinion of the annotator, exclusive and unmixed possession for twenty years without actual enclosures will, in all cases, give title to the defendant and bar a recovery in ejectment. But, after carefully examining the exceptions, we do not think that the doctrine of title by possession has been carried to that extent.

The devisee of the lands in controversy had conveyed them to the defendant several years before he entered into holy orders, and the defendant had entered and held possession under that title, and was so possessed, when the grantor became a priest, at which time, under the will of his father, the plaintiffs’ title accrued. The defendant did not enter upon land not his own. He was not a wrong-doer at the time of his entry, but he held the title and possession under a party who had the right to sell the land, though that title was liable to be defeated by a subsequent event. When that event happened the claimant was ousted by deforcement, which is “a privation of the freehold, where the entry of the present tenant or possession was originally lawful, but his detainer has now become unlawful,” 3 Bl.

Com., 172. 2 Crabb’s Law of Real Property, sec. 2457. When, therefore, this case is appealed to it must be considered with reference to its facts, and not as applying the same principles, in behalf of an intruder, which had been recognized as a valid defence when set up by one who had entered under a title; for this application of the decision would be to sup ²⁴⁸ pose that the court had disregarded the obvious and important distinction, which the reported cases and elementary writers recognize between a possession taken by a wrong-doer and one taken by a person under title. It appears to be immaterial whether the title be valid or not, provided the entry and claim be bona fide under that title. Many of the cases are collected in 2 Smiths’ Lead.

Cases, 414, 415. As the result of these, we are told that there are two modes of possession which have that kind and degree of notoriety and distinctness, which are necessary to constitute statutory adverse possession. First, where one enters not under any deed or written-title, but merely assuming the possession with claim of rightp the ouster he' effects extends no further than he occupies, cultivates, encloses, or otherwise excludes the owner from. Second, but if one enters under color of title, by deed or other written document, and occupies and improves the land,, he acquires in- law actual possession, to the extent-of the' boundaries contained in the Writing, and this though the title conveyed to him by the deed be good for nothing.- Upon-these two' principles, say the American annotators, the courts-seem generally agreed, though in the different States they are explained and defined with various degrees of strictness.

See also Angel on Limitations, 428, &c. Casey vs. Inloes, 1 Gill, 500 . Jackson vs. Camp, 1 Cowen, 609. It is not deemed necessary to refer to the cases in other' courts, (they are numerous and some not easily reconciled with others.)- because we think that the Court of Appeals of Maryland has not made any distinction between the case propounded by this prayer, and what is commonly understood to be one of mixed possession, that- is- to say, where a person having title to the whole is in- actual possession of a part, and another without title is in actual possession of the other part, without enclosures.

As against a wrong-doer claiming title by possession alone, the law is the same, whether the real-owner be in actual possession of any part of the land or not.- The doctrines of adverse possession are treated of in Casey vs. Inloes, 1 Gill, 500 , and the cases of Davidson vs. Beatty, ²⁴⁹ 3 H. & McH., 621 . Cheney vs. Ringgold, 2 H. & J., 87 . Hall vs. Gittings, 2 H. & J., 112, are there referred to, as establishing title by constructive possession where the real owner is in possession of part of his land. We do not understand the learned judge who pronounced that opinion to have confined the principles there stated to cases of actual mixed possession, but to have extended them to all where real estate is claimed by a wrong-doer, relying on possession alone against the real owner.

The case then before him was not one of mixed possession. The property in dispute was covered by water at the time of which he speaks, and incapable of possession by either party. It is so stated in the opinion, (497.) If, as was contended, the judge was supposing a case of mixed possessions, such as that proved in Chaney vs. Ringgold, the cases referred to do not all apply to such a state of case. That in 3 H. & McH., 621 , lays down the doctrine, “that where a person claims by possession only, without showing any title, he must show an exclusive adverse possession by enclosure, and bis claim cannot extend beyond his enclosures.” This is not necessarily applicable to a case of mixed possession, although a previous clause of the opinion of the court, (quoted in 1 Gill, 500 ,) is so expressly applied.

But that was not a case of mixed possession, for neither the plaintiff, nor the person under whom he claimed, had been in actual possession of any part of the land for many years before the suit was brought, but the whole was occupied by the defendants, relying on adverse possession. See page 624, where the facts are fully stated by Mr. Mason: also the opinion in 9 Gill, 275, 276 . Hall vs. Gittings, 2 Harr. & Johns., 112, was not a case of actual possession by therea.1 owner of any part of the land during the time of the alleged adversary possession of the defendant. The question was, whether the commissioners appointed to preserve confiscated property by the act of 1780, ch. 49, were seized and posses* sed of confiscated lands without an actual entry, and the court held, that by operation of the act the commissioners were in possession, as agents of the State, from the time of its pas ²⁵⁰ sage, “and although the defendant or those under whom, he claimed