Phelps v. Phelps

Goldsborough, J., delivered the opinion of this court. This was an action of ejectment, instituted in the circuit court for Anne Arundel county, by the appellant against the appellee, to recover a tract of land called “Addition to Timber Ridge,” lying in said county. There are two demises in the plaintiff’s nar., one by Ebenezer T. Phelps, on the 1st day of January 1853, to the plaintiff, for twenty years, the other by John Stewart, on the 1st day of October 1848, for a like period. The appellee appeared, entered into the consent rule, admitted lease, entry and ouster, pleaded not guilty, and the appellant joined issue thereon.

At the April term, ¹³³ 1858, of the circuit court, the case was submitted on the admitted statement of facts set forth in the record, and at the following term the court gave judgment for the appellee, from which the appellant appealed to this court. By reference to the deed, made a part of the statement of facts, it will be seen that the property claimed by the appellant was conveyed by Richard Phelps and James Phelps, the father of Ebenezer Phelps, to Walter Phelps and his wife, Margaret, during their lives, and the life of the survivor, and on the death of the survivor, then to Walter Phelps, Joshua Phelps, Ebenezer T. Phelps, the three sons of James Phelps, one of the grantors, and their heirs and assigns forever. After the death of Margaret, who survived her husband, James, one of the grantors, and the father of Walter, Joshua and Ebenezer Phelps, to whom the deed had given the remainder in fee, took possession of the land in dispute, his three sons being all minors and living with him. James continued in possession until his death, in 1847.

Two of the sons, Walter and Joshua, had in the meantime died, intestate, unmarried and without children, leaving Ebenezer, their only surviving brother of the whole blood. If, therefore, the deed was operative to convey the fee-simple to the three brothers, then Ebenezer was entitled to the whole, as surviving joint tenant. He would be equally entitled to the whole as sole heir at law, the three brothers having acquired the title to the property by purchase, and not by descent. See Act of 1820, ch. 191, sec. 1.

The appellee, however, insists “that the three sons of James Phelps, before mentioned, not being technical parties to the deed, which can be treated only as an ‘indenture,’ can take no estate by such conveyance.” The attempt to apply to this case the distinction between “deed-poll” and “indenture,” we think must fail. The execution, acknowledgment and enrollment of the deed, made it obligatory on the grantors, and one enrollment is an acceptance by all the parties claiming under it, unless the contrary is shown. Hutchins, et al., vs. Dixon, Excr. of Hooper, 11 Md. Rep., 41 , and the cases there cited. It was ¹³⁴ properly said, in argument, that “for many years courts have gradually abandoned the nice distinctions between rights of parties created by indenture and deed-poll, and the Act of 1794,