Sprigg v. Moale

Alvey, J., delivered the opinion of this Court. This is an action of ejectment, in which the lessors of the plaintiff claim title to the land in dispute, as heirs-at-law, in different degrees, of Jacob Giles, by collateral descent. It appears that John Giles, the father, who died in the year 1725, had, some time before his death, compounded for a tract of land called Upton Court, lying on the Patapsco river, in Baltimore county, but died before he obtained a patent therefor; and by his will, dated and admitted to probate in 1725, he devised a. part of Upton Court to his son John Giles, and the residue thereof to his son Jacob Giles. This will of the elder John Giles discloses the fact that he had, at the date of the will, eight children; three sons and five daughters; namely, John, Jacob, Nathaniel, Betty Lewis, Sophia Murray, Anna, Mary and Sarah.

The three sons were made executors of the will of the father. It also appears that on the 12th of August, 1731, a patent for Upton Court issued to John Giles, the son and devisee, who, by deed of the 28th of February, 1732, granted, released and confirmed to his brother, Jacob Giles, all that part of Upton Court which had been devised to the latter by the will of the father; and on the 1st of March, 1732, Jacob Giles conveyed to John Moale, the ancestor of the appellee, a parcel of Upton Court, supposed to contain two hundred acres, more or less; but that such conveyance to Moale did not embrace the entire portion of Upton Court conveyed to Jacob Giles, by the deed of his brother, of the 28th of February, 1732. And it is for the recovery of the residue of such parcel of Upton Court, conveyed by the deed of the 28th of February, 1732, and not embraced in the deed to Moale, that this action is brought. It is alleged that Jacob Giles never parted with such residue of the parcel of Upton Court, conveyed to him by his brother, and that ho died without issue and intestate; and that all the blood of John Giles, the elder, has become extinct, except the descendants of Anna or Anna Maria, one of the daughters of John Giles, Sr., and a sister of Jacob, who married Oliver ⁵⁰⁵ Oonrwell, and had issue; and that the lessors of the plaintiff are her descendants, and through her claim as heirs-at-law of Jacob Giles.

At the trial below there were several prayers offered by the respective parties; and eight of those on the'part of the plaintiff were granted, as were two of those on the part of the defendant. The ninth prayer, however, of the plaintiff, was refused; and that, and the two prayers of the defendant that were granted, presented the question of the title of the lessors of the plaintiff and their right to recover in this action. The Court, after ruling upon the prayers offered, further instructed the jury that the plaintiff could not recover; and upon the ruling in reference to the ninth prayer of the plaintiff, and the decisive instruction of the Court, against the right of the plaintiff to recover, the primary question is presented, whether there was evidence in the cause, legally sufficient, to be considered by the jury, tending to establish title in the lessors of the plaintiff. It was incumbent upon the lessors of the plaintiff claiming as they do, by collateral descent, to show who was last legally seized of the land in controversy, and then to prove his'death, without issue; and next to prove all the different links in the chain of descent, which'will show that the person so last seized, and the claimants, descended from some common ancestor; together with the extinction of all those lines of descent which could claim in preference to the lessors of the plaintiff.

They must prove the marriages, births and deaths, and the identity of persons, necessary to fix title in themselves, to the exclusion of others who would have, if in existence, a better title to the land sought to be recovered. The facts first in order, to he established by the lessors of the plaintiff, in the deduction of title, wore, that Jacob Giles, the propositus, died before the bringing of this action; and that ho died without issue; as his lineal descendants, if any, would exclude all collateral kindred. It is contended, however, on the part of the plaintiff, that both of these facts are made evident by presumption, under the facts ⁵⁰⁶ and circumstances of this case. As to the fact of the death of Jacob Giles, we think it clear that it may be presumed to have happened before the bringing of this suit, because it would be contrary to the ordinary course of nature that he should be living at that time; though there is no legal presumption of the period when death occurred, or up to which life endured.

Hubback on Succession, 185. If it be alleged that a person died or was dead,- at any particular time within the period after which he will be presumed to be dead, the fact must be established by evidence. But while this is the rale of presumption as to the fact of death, it does not follow that the party is presumed to have died without issue. Where, as in this case, ihe party is shown to have been married, and his wife living at the time of the last intelligence of her, the law makes no presumption against issue; and the plaintiff must show either that he had no issue, or that issue is extinct.

That there is no legal presumption that the party died without issue, we think has been expressly decided in the ease of Richards vs. Richards, 15 East, 293, note, and which has been cited and approved by the Court of Appeals of this State, in the case of Hammond’s Lessee vs. Inloes, 4 Md. Rep., 175 . The case referred to in East was an action of ejectment, and the lessor of the plaintiff claimed as heir by descent, and showed the death of his elder brothers, but not that they died without issue. The Court said: “This must likewise be proved. The plaintiff must remove every possibility of title in another person, before he can recover; no presumption being admitted against the person in possession.” And in Hubback on Succession, 199, it is laid down as an established principle in the rules of evidence applicable to eases of succession, that “in order to show the death of all nearer heirs, it is necessary to negative the coming into existence of those who would be such.

That without the establishment of the nonexistence of issue as a distinct species of fact from that of death, the proof of heirship would be defective, will thus appear: if A., be a nearer heir than the claimant, and it be ⁵⁰⁷ proved that he died, having had two children, B. and C., and the deaths of these children be also proved, the claimant is not entitled to succeed if issue of either B. or C., or if other issue of A. be extant. Evidence may be adduced of the deaths of all the known members of senior branches through successive generations, and still the task will follow of satisfying those who are to decide, that no issue exists of the lowest or latest descendants, added to that of establishing, of each individual member, that he had no other children