Neal v. Hopkins

Page, J., delivered the opinion of the Court. This is an action of ejectment brought by the appellee against the appellant to recover certain property in the town of Cambridge. A warrant of resurvey was issued and the certificate of the survey and plats were made and returned, and are now contained in the record. The plaintiff in establishing his case offered in evidence certain deeds to which no objection as to location was made; and also proof to show ouster on the part of the defendant.

The first exception and the plaintiff’s fourth prayer related to the measure of damages, and inasmuch as the verdict of the jury was for nominal damages only, those will require no attention in this opinion. After the plaintiff had rested his case, the defendant asked the Court to instruct the jury that there was no legally sufficient evidence to entitle the plaintiff to recover; the Court refused so to do and this constitutes the defendant’s second exception. The defendant claims this was error, because he alleges the proof shows that one William Jackson still retains a life-estate in the property. It appears from the proceedings set out in the record of a cause in the Circuit Court of Dorchester County, that in 1853a certain Henrietta N. Jackson being seized in remainder of the land in question, by her next friend filed a bill in equity to sell the property for better investment.

The life-tenant was not made a party by the bill, but during the progress of the cause he filed a paper by which he agreed ‘ ‘that the said real estate shall be sold under the direction of the Court, free from any incumbrance of my (his) life-estate therein, and that in lieu thereof I (he) will accept such proportion of the proceeds of sale of said estate as this Court shall judge to be reasonable.” The Court thereupon decreed that the property be sold, appointed Thomas W. Anderson trustee to make the sale, and directed him on payment of the purchase money to convey the property to the purchaser, discharged of all claims “ of the parties to this cause, and of William Jackson, who has assented to the sale of his interest ²³ therein.” The property was accordingly sold, and out of the proceeds thereof William Jackson was awarded and received a sum of money deemed by the Court to be reasonable for his interest. The deed of the trustee Anderson conveys “all the right and title of all the parties to the aforesaid cause,” in and to, &c. The appellant on these facts claims that the interest of William Jackson did not pass, but is still outstanding. Now, when a defendant in ejectment relies upon an outstanding title in a third party, it must be such a title that such third party could recover against either party.

Georges Creek C. & I. Co. v. Detmold, 1 Md. 234 . Here Jackson voluntarily appeared to the cause, agreed that the property should be sold, and received a share of the proceeds of sale. Under these circumstances he must be held as a party. It would violate every principle of equity and good faith to allow him now to set up any claim to the land.

Farmers’ Bank v. Thomas, 37 Md. 258 ; Thomas v. Farmers' Bank, 46 Md. 56 . The defendant, to sustain the issues on his part, having offered the deed from the plaintiff under which he claims title, proposed to follow it up by a contract in writing relating to the sale of property between himself and plaintiff made on the same day with the deed ; but the Court refused to allow it to go to the jury, and this constitutes the defendant’s third and fourth exceptions. It is clear from the terms of the contract that it was entered into before the execution of the deed. The parties agree therein for the sale of certain property for $1,400, part to be paid “on the delivery of a good and sufficient deed,” and the residue in two equal annual instalments.

Now, if there be a difference between the deed and this contract (and that there is, is not obvious to us); which paper is to control—the deed or the agreement? If there were no other reason it would seem proper that the last and effectual expression of the parties should prevail. The deed contains no ambiguous phrases, its language is clear and unmistakable, there can be no doubt as to its purport, and it is a familiar rule that the provisions of the deed ²⁴ must speak for themselves. If it should be conceded as contended, that the deed and the agreement being both under seal, are of equal dignity, the last executed must control the first.

In Dorsey v. Smith, 7 Har. & Johns. 363, it was said, “ if the two papers differ, the last must be regarded as a modification of the first, and being the last stipulation must be considered as binding on the parties.” Worthington v. Bullitt, 6 Md. 196 . We find no error in the ruling of the Couit set out in these exceptions. The testimony set out in the fifth exception should have been admitted. It was a declaration by the plaintiff against his interest and tended to throw light upon the true location of Willis street extended.

The issue presented to the jury was the location of the point where Willis street extended would intersect School street extended—and the location of School street being admitted, the .controversy was over the proper location of Willis street extended. Willis street eastwardly from Locust street for some distance had been dedicated to the public by the sale of certain lots binding thereon, and to the extent of these lots had been opened, but so far as the record show's had never been accepted by the municipality. From Glasgow street on the west across Locust street for a distance of 160 feet it was a clearly defined street with fences and trees to mark its line. If the lines of the street so marked were extended in straight lines it would support the contention of the defendant.

The defendant, after offering the deeds of the lotholders along that portion of Willis street to show the outlines of Willis street, introduced Charles C. Kleckner, the husband of Fannie L. Kleckner, the owner of the lot designated on the plat as the Kleckner lot; he testified that he erected a fence along the front of his lot on Willis street; later on he moved it back some seven feet in consequence of an agreement to widen Willis street; and later still moved it back to its original position on Willis street where it now stands ; and that he did so because they expected “to get the Commissioners to pay Mr. Perry to move his fence back also, ²⁵ but the said authorities refused.” On cross-examination he testified it was while his fence was set back that Dr. Mace bought the lot to the eastward of his lot and built the fence in line with that of witness, it being about seven feet from the east corner of witness’s lot. The defendant objected to this on the ground that Mace’s fence was not located on the plat, but the Court overruled the objection. The case of Carroll v. Norwood, 1 H. & J. 177 , is decisive on this point, which is raised in the sixth exception. There the defendant offered evidence of the place where an ancient tree stood, it being on the line of a fence which was located on the plats ; but the Court held the evidence inadmissible inasmuch as the tree was not located, though the fence on the line of which it stood was.

The evidence objected to in the seventh and eighth exceptions was proper to go to the jury. The question being as to the location of Willis street-, and its outlines not having been designated by bounders or plats, all acts prior to the date of defendant’s deed of persons owning abutting property were proper to go to the jury to be considered by them in determining what had been dedicated to the public. 9th Exception. The deed to John Mace from the plaintiff designates the place of beginning to be “ on the North side of Willis street, beginning for outbounds east 160 feet from Locust street extended, to the east corner of lot of ground owned by C. C. Kleckner, and running with Willis street,” &c. The point must be on Willis sti'eet, 160 feet from Locust street, and at the east comer of the lot owned by Kleckner.

It was an attempt to vaiy or explain the clear meaning of the deed by parol, to permit testimony to go to the jury as to what the understanding of the parties was. loth Exception. Foxwell’s deed is dated 25th January, 1896. What the plaintiff did, after the deed to the defendant, that is, after Oct. nth, 1895, was not evidence. It could throw no light upon the question as to where Willis street was when the defendant bought the property.

The Court granted the 1st, 2nd and 3rd prayers on be ²⁶ half of the plaintiff and rejected all asked for by the defendant, and this forms the nth exception. The plaintiff’s first prayer was not attacked in argument, and we treat it as being conceded. By the second of the plaintiff’s prayers, the jury was directed that if they found the deed of Hopkins to Mace, and the said deed described said lot as beginning 160 feet from Locust street to the east corner of Kleckner’s lot, and shall further believe that the beginning point of the Mace lot so conveyed is at the black cross on the plat and that said deed described said lot as running with Willis street, &c. This prayer assumes that by the proper construction of the Mace deed, the beginning bounder thereof could be located at the black cross on the plat which, by reference thereto, appears to be seven feet or more from the east corner of the Kleckner lot.

That deed,