Waller v. Pollitt

Briscoe,'J., delivered the opinion of the Court. The suit in this caséis an action of ejectment, instituted by the appellants against the appellees in the Circuit Court for Wicomico County to recover the possession of a tract of land situate in Trappe District, and containing one hundred and eighty-seven acres of land more or less. The appeal is brought to this Court upon an exception to the rulings of the Court below in rejecting the plaintiffs’ prayers, and in granting the defendants’ prayer, which instructed the jury that there was no legally sufficient evidence to entitle the plaintiffs to recover in the case. The facts are undisputed, and the decision of the case turns upon the terms and legal construction of a deed from Robert Jones and wife to'Anthony Pollitt and Henrietta Pollitt, his ¹⁷³ wife, dated the 2nd day of August, 1862, and recorded among the land records of Wicomico County and set out in the record before us.

The appellants are the descendants of Anthony and Henrietta Pollitt, and claim title through them. Henrietta died in 1867, intestate, and Anthony married in 1868 one Virginia Anderson. He died in 1905 and the appellees are the children of the second marriage. By the deed, in question, the property was conveyed in consideration of the sum of twenty-five hundred dollars, by Robert Jones and Henrietta, his wife, “unto Anthony Pollitt and Henrietta Pollitt, his wife,” for their joint lives and the life of the survivor of them; and to their joint heirs, free, clear .and discharged of all encumbrances whatsoever.” And by the covenant in the deed it appears that the grantor agreed, “to give said Pollitt and wife, any such further deed or deeds as may be necessary for the further securing unto them a good and sufficient right and title to the above described premises in fee simple. ” The appellants contend that Anthony and Henrietta Pollitt, by the provisions of the deed, took only a life estate in the property in controversy and upon their death, the life estate was terminated and the fee was and is in their joint issue or ‘ children.

It is claimed upon the part of the appellees that the limita - tion in the deed, to “the joint heirs” of Anthony and Henrietta Pollitt, brings the grant within the rule, in Shelly’s case, and upon the death of Henrietta, the survivor (Anthony) took the entire and absolute estate, in fee simple. While the rule in Shelly’s case has been abrogated by statute in many of the States, it remains the law in this State, and must be enforced by the Courts. Ware v. Richardson, 3 Md. 544 ; Simpers, Lessee, v. Simpers, 15 Md. 160 ; Thomas and Wife v. Higgins, 47 Md. 451 . The rule is, where the ancestor takes an estate of freehold by gift or conveyance and in the same gift or conveyance an estate is limited either mediately or immediately