Herbert v. Pue

• Decision Date: 18 June 1890
• Citation: 20 A. 182,72 Md. 307
• Parties: HERBERT v. PUE.
• Court: Maryland Court of Appeals

20 A. 182

72 Md. 307

HERBERT v. PUE.

Court of Appeals of Maryland

June 18, 1890

Appeal from circuit court, Howard county.

Argued before ALVEY, C.J., and ROBINSON, BRYAN, MCSHERRY, FOWLER BRISCOE, and IRVING, JJ.

James Mackubin, for appellant.

W A. Hammond, for appellee.

IRVING J.

The plaintiff in this case, who is now appellee, sued the appellant in trespass, alleging that, as a son of Arthur Pue he was entitled, for himself and his descendants, by virtue of a certain deed from his father, Arthur Pue, to one James Mackubin, to the use of a certain grave-yard upon a farm known as "Gray Rock," for the customary uses of a grave-yard, and that two of the plaintiff's children rested there, and that the appellant had removed the fence around the grave-yard, and plowed the yard, and sowed it in grass, and had removed beautiful shade trees, and obliterated and destroyed the yard as a place of sepulture. The declaration further averred that these acts were done, willfully and maliciously, to force the plaintiff to remove the bodies of his children, and abandon the place as a grave-yard. The defendant pleaded in abatement that if the plaintiff was entitled, as alleged, he was only entitled in common with others, who are described and named, and should have been joined as plaintiffs. To this plea a demurrer was sustained, and the appellant pleaded, and issue was joined. At the trial, but one exception was taken, and that was to certain evidence offered by the plaintiff to support the issue on his part. There are, therefore, but two questions for consideration: (1) Whether the plea in abatement was properly overruled by sustaining a demurrer thereto; and (2) whether the evidence excepted to was properly received.

1. If the reservation of right to use the grave-yard in question gave any right at all, it was a right of several use thereof by each and every of the descendants of Dr. Arthur Pue; and the interference with or obstruction of that individual right, and which did not go to the entire and absolute destruction of the right, would subject the offender to a separate right of action on the part of each person who might be injured. A. would have no right to complain or to join in suing for an injury to B. which in no manner affected or disturbed him. The plowing up, and leveling with the ground, the graves of the plaintiff's children, unlawfully done, would certainly give him a right of action for damages, in which no one else who might have a right of use of the grave-yard would have a like right to share. We think the demurrer to the plea in abatement was properly overruled.

2. In admitting the evidence which was excepted to, we think the court erred. The several paper writings or deeds which were offered in evidence were as follows: (1) Power of attorney from Thomas B D. Pue to his father, Dr. Arthur Pue, to sell and convey certain real estate, in fact, all Thomas B. D. Pue's property; (2) deed from Dr. Arthur Pue to James Mackubin; (3) deed from James Mackubin to Charles W. Dorsey; (4) lease from Charles W. Dorsey to James Mackubin of same property mentioned in the other deeds; (5) a sublease from James Mackubin to Herbert, the defendant. The deed from Dr. Pue to James Mackubin has the following premises: "This deed, made this twenty-first day of May, one thousand eight hundred and fifty-nine, by Dr. Arthur Pue, for himself, and under and by virtue of a power of attorney duly executed, and acknowledged by Thomas B. D. Pue, and herewith recorded in Liber W W W, No. 19, one of the land record books of Howard county." The granting clause is as follows: "Witnesseth that, in consideration of the sum of thirty-two thousand dollars, the said Arthur Pue, as attorney aforesaid of the said Thomas B. D. Pue, doth grant unto James Mackubin all that tract or parcel of land lying and being in Howard county which Thomas B. Dorsey, of Thomas, late of Anne Arundel county, deceased, by his last will and testament, duly admitted to probate, * * * devised to the said Thomas B. Pue, and described as his dwelling, plantation," etc. Then follows a further description of the property, and at the end thereof is the following language: "Reserving, however, for all of the descendants of the said Arthur Pue, the use of...