Walsh v. McIntire

Irving, J., delivered the opinion of the Court. This is an action of ejectment brought by the appellants against the appellee for a lot of ground containing about three acres. The appellee took defence on warrant, and surveys were made ; but no question of location seems to have arisen. The appellants claim under mesne conveyances from the heirs-at-law of David Shriver, who died in 1853, leaving certain heirs-at-law, all of whom resided out of the State.

The defendant claims hy parol gift from David Shriver, the intestate ancestor of the plaintiffs’ grantors, alleged to have been made in 1851, followed by possession continuously by her, which possession, as against these appellants, is now set up as adverse, and as an effectual bar to this suit; as it is alleged to have continued for a period exceeding twenty years. As both parties claim under David Shriver, the Circuit Court properly ruled that neither could deny David Shriver’s title, and no exception was taken to that instruction. The Circuit Court was asked to instruct the jury, that “the defendant has given no proof legally sufficient to prove title in her hy adverse possession or otherwise,” but this instruction the Court refused to give,, and the controlling question in the case is whether this ruling was correct; and whether the instruction the Court did give touching that matter was justifiable. The Court framed and gave two instructions as follows : “1st.

If the jury find from the evidence in this case that the defendant was placed in possession of the lands in controversy in this case by David Shriver, at a time when he ⁴¹⁴ was owner thereof, with the understanding between them that the defendant was to hold, use and occupy them as a home, and as the owner thereof, and that the defendant entered into possession thereof with that understanding and intent, and has occupied the premises continuously from the time of such entry for twenty years or more before the institution of this suit, then the plaintiffs cannot recover.” “2nd. But if on the other hand the jury find from the evidence that the defendant was placed in possession of the said premises by the said David Shriver, only to take care of them or to occupy them for the benefit of said Shriver, or only to hold the same as a home until such time as he, the said Shriver, should withdraw such permission, or for any other purpose than to have, use and occupy them as her own, then the plaintiffs are entitled to recover ; provided the jury further find that the said premises are within the lines of the plaintiffs’ deeds from and through David Shriver, read in evidence, and that said deeds are properly located on the plats.” To the granting of the first of these instructions by the Court the appellants specially excepted, because the Court left to the jury to find whether David Shriver made a verbal gift of the premises to the defendant, which was claimed to be a question of law, and secondly, because there was no evidence legally sufficient to establish a parol gift, or to show a disseisin of David Shriver of the premises in controversy ; “ and, because there was no evidence that there was an understanding with the defendant and David Shriver, that she was to occupy the premises as a home and as the owner thereof.”' We think the Court fell into error in giving the instructions quoted in lieu of the second paragraph of the plaintiffs’ prayer which has also been recited. It is certainly not the law in Maryland, that a party can acquire title, which is maintainable at law, by parol gift followed by ⁴¹⁵ actual possession, no matter how long and exclusively continued. It has been repeatedly decided in this State, that no interest in land, for a period longer than seven yearns, can he acquired at law, in any other way than by deed duly acknowledged and recorded as required by the Acts of 1715, cli. 47, and 1766, ch. 14, which are embodied in section 1 of Art. 24, of the Code of Public General Laws.

No simple act in pais is sufficient to give title. Peter vs. Schley’s Lessee, 3 Harr. & J., 211; Mackall vs. Farmers Bank, 12 G. & J., 176 ; Anderson vs. Critcher, 11 Gill & J., 450; Mahew vs. Hardesty, 8 Md., 479 ; Howard vs. Carpenter, 11 Md., 275 . Occupancy merely under a parol gift is not possession under color of title which, this Court said in Baker vs. Lessee of Swan, et al., 32 Md., 358 , “ is such title as in appearance is good and sufficient, but which in reality is not good and effectual.” Here there was no apparent title; there was bare occupancy and nothing more, except the claim in 1869, that David Shriver had given the property to the appellee by parol, and she had entered under his authority in pursuance of the gift. The whole evidence in support of the appellee’s defence was her own statement as a witness in her own behalf.

She says, “ Uncle David Shriver told me to go there and live and take care of the property, and not to go away and leave it as Brady had done; William Shriver was afterwards surveying on the island and told me not to be frightened; I have lived there since 1852, and built the house that is there now, and have paid taxes since 1870. Mr. Walsh told me he had bought the property when he came there just before the wharf was built; I told him. I was sorry because David Shriver had given it to me for a home. Mr. Walsh told me he was going to build a wharf, and it would be noisy then, I had better select a lot elsewhere; he would give me a home; I told him I did not mind noise ; I had been employee! by David Shriver eighteen years; swept out the bank; he paid ⁴¹⁶ me for my services ; he never asked me for rent; they dumped earth on the lot when the basin was cleaned out; I consented because they told me it would be a benefit to my garden.” She said she consulted a neighbor and he told her it would benefit the garden and she accordingly consented to it.

She also testified “ that Mr. Shriver was always kind to her; that when she left Mr. Shriver’s she o'wned and occupied a small lot in the vicinity of the land in controversy here; that she built a dwelling house thereon, and that Mr. Shriver helped her to build the house by giving her some money to do so; that Geni. McKaig claimed the house and lot as his and turned her out of possession; that thereupon Mr. Shriver put her in possession of the property in controversy here; be told her to go and take it and keep it and not to leave it as Brady had done; that Brady had occupied the same property before she entered it and had gone off and left it; that the property was enclosed just as it now is, and that the line of enclosures had never been changed, but remain now as they then were.” She also put in evidence that the land was, when she entered it, low and marshy and liable to overflow from the Potomac river, and was of small value for building purposes. The plaintiff had given evidence of an entry on the land in 1869, and the dumping of the earth and material taken from the basin to a considerable depth over the land; and that the appellee was ordered to remove her crop before doing so, which she did; and that when she was told that Mr. Walsh had bought the same said she was glad, that David Shriver had put her there and she was taking care of it for him and his heirs. It was also in evidence that a former ejectment suit had been brought and the appellee notified; that she appeared and entered into the consent rule of lease entry and ouster, and that afterwards her counsel struck out his appearance, and judgment was rendered against the casual ejector in favor of the plaintiffs on the 3rd of October, lSYO.

The ⁴¹⁷ record of this suit and judgment was in evidence. No execution having issued on the judgment until the expiration of twelve years from its date this suit was brought. Upon this state of facts the Court below ruled on the theory that the possession of the defendant was under color of title, and therefore adverse. It was error to suppose that there was any color of title; or that the possession was adverse. “Adverse possession, by color of title” this Court says in Baker vs. Lessee of Swan, “is made out by the co-existence of two distinct ingredients; the first, such a title as will afford color; and secondly, such possession under it as will be adverse to the right of the true owner; and whether these two essentials exist are, in all cases, questions of law to be determined by the Court, though the facts upon which they are founded are for the finding of the jury.

Hence, when the facts exhibiting the title, and the possession under it, are shown, the Court will determine whether color exists, and the possession be adverse.” The title relied on was a parol gift, and the possession given was not such as to indicate a purpose to give the defendant a fee; and the possession enjoyed was not such as to establish an adverse title. Although a parol gift followed by possession will not give a legal title, equity will interfere, in some cases, and enforce specific performance, where the proof is clear and satisfactory, that the donor did agree to give, and did induce possession to be taken, and large expenses to be incurred in improvements, as if the property had actually been conveyed. But in such case the interference is on the ground of equitable consideration in the outlay, and to prevent the consummation of a fraud. The case of Hardesty vs. Richardson, 44 Md., 617 , was one of that character, and in it the whole question of when and to what extent equity will relieve, is there fully discussed and the authorities collected and cited.

Upon the evidence of this defendant herself, a Court of equity could not and would not enforce a