Tongue's lessee v. Nutwell

Golbsborough, J., delivered the opinion of this court. This is an action of ejectment, brought by the appellant against the appellee, in the circuit court for Anne Arundel county. The appellant declared for a tract of land called “Holly Hill Farm,” lying in Anne Arundel county, and also in another count for an undivided moiety of the same land. He set out his pretensions in his nar., by metes and bounds.

The appellee came into court and prayed to be made defendant, and was required to enter into the consent rule, and confess lease, entry and actual ouster, which he did accordingly; and declining to take defence on warrant pleaded not guilty. At the trial of the cause, and after the plaintiff had offered evidence to establish the lessor’s title to the land in controversy, the defendant submitted the evidence contained in the first exception, to which the plaintiff objected, but the court overruled the objection and permitted the evidence .to go to the jury, with the proviso mentioned in this exception. The defendant then, under the ruling of the court, offered further evidence tending to prove that the lessor of the plaintiff, at the time of the sale as aforesaid, knew that she was entitled to an undivided interest in the land in controversy, and with such knowledge did assent to, and acquiesce in, ■the sale. The plaintiff excepted. ²²⁸ After the evidence had been given as detailed in the first exception, and the court had ruled as stated therein; the defendant, under this ruling, submitted the evidence contained in the second exception, and the plaintiff also offered his evidence mentioned m the same exception.

The defendant then submitted nine prayers, all of which were rejected by the court except the 6th, 8th and 9th, and the plaintiff offered the prayer mentioned in the second exception, which was rejected. To which ruling of the court in granting the defendant’s 6th, 8th and 9lh prayers, and the rejection of the plaintiff’s prayer, the plaintiff excepted. The verdict and judgment being for the defendant; the plaintiff appealed. In the able argument of the counsel of the appellee, they submitted four points for our consideration: 1st. “That the evidence i;i the first bill of exceptions, to the admissibility of which the plaintiff excepted, was properly admitted, upon the ground, that if believed by the jury, it estopped the plaintiff’s lessor from setting up title, as a claim, under such circumstances, would be a fraud upon innocent purchasers.” 2nd. “That the evidence shows that the plaintiff’s lessor elected to take under the will of Benjamin Harrison, and that having so elected, she is, estopped from claiming, as heir at law of her father, a moiety of the lands described in the nar.” 3rd. “The plaintiff’s lessor being tenant in common with the defendant, and those under whom he claims, it was necessary to prove actual ouster to entitle her to bring ejectment.” 4th. “That unless the land sought to be recovered is included within the abuttals designated in the nar., the plaintiff was not entitled to recover.” As to the third and fourth points, corresponding with the eighth and ninth prayers granted; we regard the actual ouster a:s conceded by the whole current of the appellee’s testimony.

He shows that he has been, and now is, in adverse possession of the whole 135J acres. That he has made valuable improvements thereon, and litigates the appellant’s pretensions upon grounds wholly foreign to the idea of the continuance of a ²²⁹ tenancy in common. Yet if there was any apparent force in tlie appellee’s third point, wo regard it as answered by applying the rule laid down in Dorsey on Ejectment, page 16, and sustained b'y Adams cn Ejectment, 263, Edition of 1846, that “'the defendant ought to have applied to the court upon affidavit, for a special rule to confess lease, entry, and not ouster; and if a tenant in common, &c., acknowledges the ouster, he will be precluded from denying, or in other words, of showing, that the plaintiff has not been injured.” And the appellee not having taken defence on warrant, thereby concedes the general identity of the premises in controversy, and cannot controvert, under his general issue, the location of the appellant’s pretensions as set out in his nar. These