Waters' Lessee v. Riggin

Goldsborough, J., delivered the opinion of this Court: The plaintiff’s lessee instituted an action of ejectment in the Circuit Court for Somerset county, on the 17th day of March 1857, to recover the parcels of land named in his declaration, and which'his lessor claims as permanent trustee of the defendant, now appellee. The appellee appeared as defendant to the suit, and pleaded not guilty. The lessor of the plaintiff offered in evidence the proceedings upon the application of the defendant for the benefit of the insolvent laws, and his, the appellant’s appointment as trustee. He also offered in evidence the deed from Levi Riggin to the defendant, for the land involved in this ⁵⁴⁹ suit; and proved that the defendant had been in possession of the premises from the date of Levi Biggin’s deed to the date of the institution of this suit.

The defendant, to sustain the issue on his part, offered in evidence a deed from himself to Joshua P. Horsey, dated the 27tli day of October 1849, by which the land in dispute is conveyed to Horsey in fee, for §1,400 paid to the defendant by Horsey, as stated in the record. He further offered in evidence a bond executed by Horsey to him, dated the 27th October 1849, by which Horsey hinds himself in the penalty of $2,800 to convoy back the land which had been conveyed to him by the deed in question, on payment of $1,400, with interest thereon, on or before tbo 27th day of October 1851. Ho also offered to prove, by Miss Mary P. Mills, the facts stated in the record, relating to a certain conversation and agreement between the defendant and Horsey, prior to the execution of the deed in relation thereto. The defendant therefore relies for his defence on the outstanding title of Horsey, a third party.

It thus appears Shat the plaintiff’s lessor and Horsey both deduce their title from the defendant. At the trial of the cause, seven exceptions were taken by the appellant to the ruling of the Court. Six of them upon the admission or rejection of evidence, and the other upon the rejection of the appellant’s prayers set out in the seventh exception. We shall review the action of the Circuit Court upon the exceptions as they are respectively presented in the record.

The rejection of the evidence contained in the first exception, was correct. Though the deposition of Moore was taken under a commission from Chancery, in a cause then pending between the parties to this cause, there is no evidence that the commission was properly returned and authenticated by the commissioner, or that the Court amongst ⁵⁵⁰ whose records it was found, had taken any judicial action upon it. 4 H. & J., 141 . 2 Md. Rep., 154 . We think the Court was right in admitting the evidence of Miss Mills, as stated in the second exception. That evidence was not only admissible to explain the motives and circumstances surrounding the deed from Eiggin to Horsey, and therefore a part of the res gestea, and also to rebut the plaintiff’s impeachment of it on the ground that Eiggin, at the time, had it in contemplation to apply for the benefit of the insolvent laws; but its admission worked no injury to the plaintiff, tending, as will be perceived hereafter, to qualify the absolute character of the deed before referred to.

The purpose of the defendant in offering the evidence in the third exception, is not inconsistent with the consideration in the deed from Eiggin to Horsey. The payment of the claims by Horsey for Eiggin, at his instance, is the same as if they were paid by him. See 3 Md. Ch. Dec., 171.

The evidence was also admissible to rebut the allegation of fraud. See 1 Gill, 412 . The fourth and sixth exceptions may be considered together, and we think the evidence in them, respectively, was properly admitted. The plaintiff had given evidence of the continued possession of Eiggin after the deed to Horsey, from which fraud might be inferred.

The bills obligatory and declarations of the parties, in the presence of Bell and Handy, were admissible to rebut fraud, and as to those transactions, may be properly regarded as res gestea, and as explanatory of 'Niggin’s continued jjossession. 14 E. C. Rep., 366, 367. In the fifth exception, the plaintiff moved the Court “that the record of the deed from Eiggin to Horsey, which had been read in evidence, be excluded from the jury,, as not legal and competent evidence in the cause; because said bond was not recorded with said deed.” ⁵⁵¹ Tbe only valid and legal defence relied on by tbe defendant, is the outs landing title of his vendee, Joshua P. Horsey, and that title is shown by tlio deed offered in evidence, if from any legal view of this case, the Circuit Court erred in refusing the plaintiff’s motion, as stated in the fifth exception, and if the deed from Biggin to Horsey should have hceu excluded from the jury, as not legal and competent evidence, the judgment must be reversed. In considering the fifth exception, it must be borne in mind that the evidence on the part of the defendant had. boon offered to the jury with the sanction of the Court, against the exception of the plaintiff thereto. This evidence, thus offered hy the appellee, was binding on him.

It was part of his case, which he could not contradict. The bond offered in evidence, and the testimony of Miss Mills, showed that the deed, though absolute on its face, was intended to be but a mortgage to secure tbe re-payment of tbe debts which Horsey had paid for Biggin, It was not a case in which conflicting evidence was offered as to a