Michael v. Jay

Briscoe, J., delivered the opinion of the Court. This is an action of ejectment by the appellees to recover a parcel of land, called “Horner’s Fishery,” situated in Harford County. A former appeal in the case is reported in 82 Md. 1 . The land in question, together with the adjoining tracts,, had been owned by the Misses F. F. and M. M. Smith, who devised the same to their brother, John Jay, for life with remainders in fee to his sons, who are the plaintiffs in this case.

John Jay conveyed to one Baker, under whom defendant claims a tract of land alleged by defendant to embrace Horner’s Fishery — the locus in quo — after having received from his sons, the plaintiffs here, a conveyance of their interests as remaindermen, under the wills of the Misses Smith in a farm called Mould’s Success. On the former appeal the principal question was whether these deeds conveyed plaintiffs’ remainder in Horner’s Fishery. It was held that the intention to convey all the real estate devised by the wills, or this particular tract of land, is not so clear and manifest as to justify the Court in determining from the face of the deeds that Horner’s Fishery was conveyed by them. And the case was remanded for a new trial to determine that question as one of fact.

Upon the present appeal there are no bills of exception set forth in the record, and the only question presented for consideration is the action of the Court below in sustaining a demurrer to defendant’s plea for defense on equitable-grounds. But it appears from the record that the plaintiffs’ first prayer and defendant’s first and second prayers, all of which were granted, submitted to the jury the question whether the deeds from the plaintiffs to John Jay conveyed Horner’s Fishery, the tract sued for, or not, and that this question was found by them in favor of the plaintiffs. ⁸² The conveyance of the land, now sued for, by John Jay to Baker, under whom defendant claims, was a conveyance of the fee-simple interest in land by a life-tenant, and the present action is by the remaindermen, who do not claim under the life-tenant, to recover possession of the land after the expiration of the life-estate. The defense relied on is stated in the plea to which a demurrer was interposed. “That a certain John Jay by his deed duly executed and delivered, bearing date on the fifth day of February, 1889, and recorded among the Land Records of Harford County, in Liber A. K. J., No. 63, folio 195, &c., did convey the lands in plaintiffs’ said declaration mentioned, to James B. Baker in fee-simple, and the said Baker did thereafter convey the same in fee-simple to the defendant; that in said John Jay’s said deed to the said Baker, the said John Jay did for himself, his heirs, personal representatives and assigns, covenant that he and they would forever warrant and defend the said Baker, his heirs and assigns against all persons whomsoever setting up any claim to said lands, by, through or under him, and especially against the said plaintiffs ; that in or about the year 1892, said John Jay departed this life, and the said plaintiffs are heirs at law of said