Van Bibber v. Ferdinand

GoLDsnoRooun, J., delivered the opinion of this court: This is an action of ejectment, brought in the circuit court for Allegany county by the appellants, on the 18th day of December 1856, to recover one undivided fourth part of a tract of land called ‘-'Elk Garden,” containing about six thousand acres of land lying in Allegany county. The lessors of the plaintiff claim this undivided fourth part of the said tract, as the heirs at law of Andrew Van Bibber, and concede that the defendants are entitled to the other three-fourths, tracing their title through Henry P, Van Bibber and a certain Brice W. .Howard. The defendants came into court and having under the consent rule, confessed lease, entry and actual ouster, pleaded the general issue, and prayed the court for a warrant of resurvey. The warrant was accordingly issued, and the surveyor returned his certificate of resurvey.

There being no question as to location, the plats and certificates form no part of this record. While the defendants concede that the plaintiff has the paper title to the property in controversy, they yet maintain, that the plaintiff’s lessors are barred from recovery by the adverse possession of the defendants, and of those under whom they claim. At the trial below, trie defendants to sustain the issue on their part, offered sundry deeds mentioned in the record, to the admissibility of which the plaintiff excepted. They also offered the evidence of Thomas Dovocmon and William Waltz, to which the plaintiff also-excepted.

The plaintiff’s ⁴⁵⁰ lessors then presented to the court nine prayers, and the defendants two prayers. The court rejected each of the plaintiff’s prayers, and granted those of the defendants; to which ruling of the court, the plaintiff excepted. And the verdict and judgment being for the defendants, the plaintiff appealed to this court. The lessors of the plaintiff, and the defendants or those under whom they claim, standing in the relation of tenants in common, it would have been necessary for the plaintiff in the absence of the confession by the defendants, of lease, entry and actual ouster, to prove the ouster to entitle him to recover.

In the case of Tongue vs. Nutwell, (ante 212,) decided by this court at the present term, the rule laid down in Dorsey on Eject., page 16, sustained by Adams on Ejectment, 263, was recognized-and approved; 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 the 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.” Regarding this case as dependent on the question of adverse possession alone, and conceding that the written and parol evidence excepted to, was properly permitted to go to the jury; yet we are of