West v. Pusey

Urner, J., delivered the opinion of the Court. This is an action of trespass quare clausum fregit instituted for the purpose of trying the title to land claimed by both the appellant and the appellees. The declaration describes the land upon which the trespass' is alleged to have been committed as located in Worcester County and being part of certain tracts of land conveyed to the plaintiff by Thomas H. Gaither and wife by deed dated September 30th, 1901, and recorded among the Land Records of that county and adjoining the lands of the defendants. Defense was taken on warrant in connection with a plea of the general issue.

At the execution of the warrant of resurvey and at the trial the plaintiff relied for his title upon the following papers: a patent from the State to Jehu Parsons dated July 12th, 1839, for a tract of 85214 acres of land, called Fleming’s Security, situated in Somerset and Worcester Counties; the will of the patentee probated in 1859 devising to William S. Parsons the “farm called Fleming’s Security;” a mortgage from William S. Parsons to Thomas H. Gaither, dated September 28th, 1883, and recorded in Somerset County only conveying Fleming’s Security and describing it as being situated in Somerset County and as being all that farm devised to the mortgagor by the will of his father, Jehu Parsons; the record of chancery proceedings in the Circuit Court for Somerset County in which a power of sale ⁵⁷¹ in the mortgage was executed and the property sold and conveyed to the mortgage; a deed to the mortgagee from George ft. Gaither, Jr., the attorney named in the mortgage, hearing date September 30th, 1901, and recorded in Somerset County only; and the deed already mentioned from Thomas H. Gaither and wife to the plaintiff, dated September 30th, 1901, and recorded in Worcester County. The last mentioned deed described the land conveyed as lying partly in Somerset and partly in Worcester Counties. The defendants relied upon patents issued in 1681 and 1769, respectively, and numerous subsequent conveyances.

Evidence was adduced by the plaintiff tending to show that the disputed ground, which contained about ten acres, was within the lines of the deed and the patent under which he claimed, and showing also that it had been in the possession of the defendants and had been cultivated by them regularly from year to year for a considerable but undcsignated period under claims of ownership. The case was heard by the Court without the aid of a jury and at its conclusion an instruction was granted to the effect that under the pleadings there was no legally sufficient evidence to entitle the plaintiff to recover. It is this ruling of the Court below that we are now called upon to review. The principal question presented, and the only one necessary to be considered, is/whether the plaintiff has shown such a title as will enable him to maintain an action of this character.

This is not an ordinary suit in trespass brought by the possessor of land against one who has wrongfully entered, in which case proof of the plaintiff’s possession is sufficient without regard to his-title. New Windsor v. Stocksdale, 95 Md. 208 ; Poe Pl., sec. 242. We have here to deal with a proceeding in which, under the pleadings, the sole question is one of title as between^on« fide claimants. In such a situation proof of title in the plaintiff is indispensable.

It is well settled in this State that an