Jay v. Michael

Boyd, J., delivered the opinion of the Court. The appellants instituted an action of ejectment against the appellee for a tract of land known as “ Horner’s Fishery,” which was alleged in the declaration to be adjacent to a tract called “ Mould’s Success,” and is described by courses and distances. The plaintiffs claim under the wills of their aunts, Frenetta F. Smith and Maria M. Smith, who died in i860. They offered evidence tending to prove that Samuel G. Smith, a brother of the Misses Smith, was in possession of “ Horner’s Fishery ” at the time of his death in 1845, and that the Misses Smith then entered and took possession of ⁹ the same as his only heirs at law, and continued in the exclusive, peaceful possession thereof until they died, when John Jay, the father of the plaintiffs, took possession of it, and so continued until his death in 1892.

The Misses Smith devised to John Jay for life “ all that farm and premises, lying and being on or near Swan Creek in the said (Harford) County, composed of a tract called “ Mould’s Success,” and part of a tract called “Palmer’s Point,” containing in the whole three hundred and thirty-five acres, more or less,” etc. By the third clause of their respective wills they each devised to said Jay for life all the rest and residue of their real estate, or such part thereof as they died siezed and possessed of, or entitled to. They then devised the remainder in all their real estate to the plaintiffs. The plaintiffs offered the wills and testimony tending to show that “Horner’s Fishery” was a separate and distinct tract from “Mould’s Success” and “Palmer’s Point.” The defendant introduced in evidence four deeds, one from James B. Baker to the defendant, one from John Jay and wife to Baker, one from Samuel Smith Jay, and another from John G. Jay to John Jay. The last two are practically alike.

It is contended by the defendant that these deeds conveyed all the interest of the plaintiffs in “Horner’s Fishery” to their father, John Jay, who conveyed it to Baker and Baker to the defendant, and the proper construction of them is the important question presented to us by this record. It is only necessary to consider the two last named deeds, as we are only called upon to determine what the plaintiffs have conveyed away, and not what John Jay undertook to convey. Let us take for example the deed from Samuel Smith Jay. It recites that he became entitled to an undivided interest in fee simple in the lands and premises therein mentioned and described by the wills of Maria M. and Frenetta F. Smith, and grants the following: “All my interest and estate in and to all that farm and premises lying and being on or near Swan Creek, in Harford County, aforesaid, composed of a tract of land called “Mould’s Success” ¹⁰ and part of a tract of land called “Palmer’s Point,” containing in the whole, three hundred and thirty-five acres of land, more or less, being the same lands and premises mentioned and described in the hereinbefore mentioned wills of the said Maria M. Smith and Frenetta F. Smith, and by the said Maria M. and Frenetta F. devised to my father, the said John Jay, for and during his natural life only, with the remainder, in fee-simple, to me, the said Samuel Smith Jay, and my brother, John Goldsmith Jay, the interest intended to be hereby conveyed being the entire interest which I, the said Samuel Smith Jay, have taken or may take under and in virtue of the aforesaid wills of the said Maria M. Smith and the said Frenetta F. Smith, and -which said farm or parcel of land is particularly described in a deed from Priscilla Presbury, John Moores and others,” etc. It is contended on the part of the appellee that Samuel Smith Jay conveyed by this deed his interest in all the real estate devised to him by said wills, and that through this and the other Meeds above mentioned, the defendant became the owner of the tract in controversy.

The Court below adopted that view and granted a prayer that under the pleadings there was no legally sufficient evidence to entitle the plaintiff to recover. The deed from Priscilla Presbury and others to S. G. Smith and others, conveyed the tract called “Mould’s Sue ■ cess,” containing three hundred and fourteen acres, more or less, exclusive of elder surveys and water, and part of “Palmer’s Point,” containing twenty-one acres, more or less, but is there anything on the face of the deeds to John Jay from his two sons which would necessarily indicate an intention to convey “Horner’s Fishery,” if that be a separate and distinct tract from “Mould’s Success” and “Palmer’s Point?”, They describe the property as “all that farm and premises lying and being on or near Swan Creek,” and it is contended that “Horner’s Fishery” is a part of that farm, although the deeds add that the farm is “composed of a tract of land called “Mould’s Success,” and part of a tract of land called “Palmer’s Point,” containing in the whole, three hundred ¹¹ and thirty-five acres of land, more or less.” It is urged by the appellee, however, that the subsequent clause in the deed, which says “the interest intended to be hereby conveyed being the entire interest and estate which I, the said Samuel Smith Jay, have taken or may take under and in virtue of the aforesaid wills,” etc., clearly shows the intention of Samuel Smith Jay (and the deed from J. G. Jay is similar), to convey all the real estate he acquired