Nutwell v. Tongue's Lessee

Bartol, J., delivered the opinion of this Court. This cause was before this Court on two former occasions, each time on the appeal of the lessor of the plaintiff, and will be found reported in 13 Md. Rep., 416 , and 11 Md. Rep., 212 . When the case was remanded to the Circuit Court, after the last appeal, the defendant took defence on warrant, a warrant of resurvey was issued, and locations made by both parties and returned to the Court. In the progress of the trial four exceptions were taken by the appellant: the first three presenting questions of evidence, and the fourth the questions raised by the prayers.

First Exception. The specific purposes for which the testimony of John F. Wilson was offered, were stated by the plaintiff, and if admissible for any of the purposes stated, the general objection to its admissibility was properly overruled, this point was decided in Pegg vs. Warford, 7 Md. Rep., 606, 607 , and Carroll vs. Ridgaway, 8 Md. Rep., 335 . In our opinion the evidence tendered was admissible to show that Eleanor Stephenson entered upon the premises in controversy as devisee of her father Benjamin Harrison, and thus to negative the theory that her holding was adverse to the plaintiff’s title. Second Exception.

The question presented by this exception was decided on the former appeal, 17 Md. Rep., 212 . Under the principles then settled, which must govern the case in its subsequent progress, the evidence stated in this bill of exceptions, offered for the purpose of estopping the lessor of the plaintiff was inadmissible for that pui’pose, and there was no error in rejecting it. Third Exception. This exception was taken to the ⁴⁴⁴ refusal of the Circuit .Court to permit the defendant to read to the jury the deed from the plaintiff’s lessor to William H. Hall, dated the 16th of April 1858, for the purpose of showing that Anne Tongue (the plaintiff’s lessor) was estopped from denying that the parcel of land lying north of the fifth line of the plaintiff’s second location, was the land of William E. Stewart at the date of the deed.

This estoppel is supposed to arise from the description in the deed of the parcel thereby conveyed “as running to a corner of William F. Stewart’s land, then with the lines of said Stewart.” Neither the defendant nor any one under whom he claims, was a party to the deed, and he cannot therefore claim the benefit of any recital it may contain by way of estoppel; whatever effect such a recital may have between the parties, they aré not binding upon them in a controversj with a stranger. This point was decided in Alexander vs. Walter, 8 Gill, 240 , and Cecil vs. Negro Rose, 17 Md. Rep., 92 ; see also Casey’s Lessee vs. Inloes, 1 Gill, 494 . The Fourth Exception presents for our consideration the several prayers offered by the parties and contained in this bill of exceptions. The first and second prayers of the plaintiff assert: First, that by the true construction of the will of Benjamin Harrison, the lessor of the plaintiff, was entitled as residuary devisee to all the lands of Benjamin Harrison, not devised to John Harrison in trust for Eleanor Stephenson; and secondly, that under the will of Benjamin Harrison, Eleanor Stephenson was entitled only to a life estate in the land devised to her, and that upon her death without issue, under the evidence and admissions in the cause, a moiety of the lands so devised descended to the lessor of the plaintiff as one of the heirs at law of Benjamin Harrison.

These prayers were conceded by the defendant, and the propositions they contain go very far towards concluding the case. It being shown that the lands in controversy form a part of the dwelling ⁴⁴⁵ plantation of Benjamin Harrison, it is not material for the plaintiff to prove that the survey made by Wilson was strictly in conformity with the provisions of the will,