Doe ex dem. Campbell v. Fletcher

• Decision Date: 20 February 1873
• Citation: Doe ex dem. Campbell v. Fletcher, 37 Md. 430 (Md. 1873)
• Parties: JOHN DOE Ex Dem., George L. Campbell, and Others, v. PRISCILLA FLETCHER.
• Court: Maryland Court of Appeals

37 Md. 430

JOHN DOE Ex Dem., George L. Campbell, and Others, v. PRISCILLA FLETCHER.

Court of Appeals of Maryland

February 20, 1873

Appeal from the Superior Court of Baltimore City.

The case is stated in the opinion of the court.

The cause was argued before BARTOL, C.J., STEWART, BOWIE, ALVEY and ROBINSON, JJ.

William H. S. Burgwyn, for the appellants.

The mother of the appellants obtained an indefeasible feesimple title to the property by its adverse, hostile, notorious and consecutive possession by inclosure by her father and self from the year 1808 to 1840, when the house was burned. 2 Washburn on Real Prop. 501.

The mother of the plaintiffs being once legally seized and possessed of the property, her seisin continues till some actual, notorious and hostile dispossession takes place, and has continued for twenty years. 2 Washburn on Real Prop. 493; Brown v. King, 5 Met. 173.

If a freehold title descends to one as heir, the law invests him with the seisin without entry upon the land. Brown v. Wood 17 Mass. 68; Green v. Chelsea, 24 Pick. 78.

It was ruled in Ford v. Grey, 1 Salk. 285, "that a claim or entry to prevent the statute of limitations must be upon the land, unless there be some special reason to the contrary."

It is contended that the appellants not having resided upon the property since 1840, when the house was burned, have made no entry upon the land sufficient to prevent the statute running against them. Runnington on Ejectment, 58.

In reply it may be stated, that it was the burning of the house that necessitated the removal from the property of the appellants' mother. That no one having possession of the property there was no tenant to the præcipe to enter upon. But, that the appellants' mother once having the legal title, the seisin remained in her, that she continued to be possessed of the property till the adverse possession took place, which was within less than twenty years prior to the institution of the suit.

The seisin therefore, must have continued in the mother of the plaintiffs from 1840 till the entry of the appellee. If the seisin continued in her, the possession must have continued in her, for seisin and possession are legally the same thing--Co. Lit. 153 a. Therefore, there could not have been an entry by the appellants till the disseisin by the appellee; for one cannot enter upon himself, and the disseisin by the appellee, not being for twenty years prior to the institution of this suit, the appellants' right of entry was not tolled, and they are entitled to recover. Hawk v. Senseman, 6 S. & R. 21; Clay v White, 1 Munf. 162; Shearman v. Irvine, 4 Cranch, 369; Smith v. Lorillard, 10 John. 338.

No counsel appeared for the appellee.

Bartol C.J., delivered the opinion of the court.

This appeal is from the Superior Court of Baltimore City, in an action of ejectment instituted by the appellants against the appellee, to recover possession of a lot of ground situated in Baltimore City.

It appears by the bill of exceptions that when the plaintiffs' counsel had made his opening statement to the jury, the Superior Court upon the prayer of the defendant, instructed the jury "that even if they should find all the facts which the plaintiffs have stated and offered to prove, the plaintiffs have not laid the foundation for a recovery in this action, and their verdict ought to be for the defendant."

In disposing of this appeal therefore, we must consider the facts contained in the statement, as proved or admitted. They are as follows: Jacob Sleeper, the maternal grandfather of the plaintiffs, under whom they claim, was in 1808 in actual adverse and notorious possession, by enclosure, of a parcel of ground, of which the lot in controversy is a part; and in 1818 died in possession as aforesaid, leaving a paper writing purporting to be his last will, signed by two witnesses. By which paper he devised the parcel of ground aforesaid to his four sons, Isaac, Abraham, John and Joshua, and his daughter, ""Philipina," the mother of the plaintiffs. That the four sons moved away from the city, returning at intervals, and the daughter, "Philipina," continued to live in the house, and to possess the premises aforesaid, from the death of her father in 1818 till 1840, when the house was burned down, and she and her...