Mitchell v. Seipel

• Decision Date: 11 March 1880
• Citation: 53 Md. 251
• Parties: GEORGE W. MITCHELL v. FRANCIS SEIPEL.
• Court: Maryland Court of Appeals

53 Md. 251

GEORGE W. MITCHELL v. FRANCIS SEIPEL.

Court of Appeals of Maryland

March 11, 1880

Appeal from the Court of Common Pleas of Baltimore City.

The case is stated in the opinion of the court.

Exception.--At the trial the defendant offered the following prayers:

1. That the court exclude from the consideration of the jury the paper-writing offered in evidence by the plaintiff purporting to be an agreement between George W. Chandler and Geo. T. Waters, dated June 8th, 1865.

2. That the court exclude from the consideration of the jury, that portion of the evidence of Francis Seipel, the plaintiff wherein said Seipel stated that he received the agreement offered in evidence by the plaintiff from George W. Chandler to George T. Waters, dated June 8th, 1865, and that said Seipel received said paper at the same time he received the original assignment from George W. Chandler to George T Waters, dated June 8th, 1865, offered in evidence by the plaintiff.

3. That there is no evidence in this case to show that the plaintiff had the right and privilege of using the alley mentioned in the plaintiff's declaration, at the time of the impetration of the original writ in this case.

4. That there is no evidence in this case to prove that George T Waters granted or assigned to the plaintiff, the right and privilege of using the alley mentioned in the plaintiff's declaration.

5. That there is no evidence in this case from which the jury may presume a grant of the right and privilege to the plaintiff to use the alley mentioned in the plaintiff's declaration.

6. That if the jury shall find from the evidence in this case, that Alexander Gould, by a lease for ninety-nine years, renewable forever, dated September 23rd, 1839, and recorded among the Land Records of Baltimore City, in Liber T. K., No. 292, folio 368, etc., demised and leased to Daniel Collins, all that lot or parcel of ground situate and lying in the City of Baltimore, and described as follows, that is to say: "Beginning for the same at the distance of sixty feet from the north-west corner of West street and Elizabeth lane, and at the south-west corner of a lot of ground theretofore leased and demised by the said Alexander Gould to George Hitzelberger, and running thence westerly and binding on the north side of West street thirty feet; thence northerly and parallel with Elizabeth lane, eighty feet to Gould lane, twenty feet wide; thence running easterly and binding on Gould lane thirty feet, to said George Hitzelberger's lot; and running thence south and bounding on said Hitzelberger's lot eighty feet, to the place of beginning." And if the jury shall further find from the evidence, that said Daniel Collins departed this life between April 19th, and May 7th, 1844, and left a last will and testament, dated April 19th, 1844, and admitted to probate May 7th, 1844, and that said last will and testament of said Daniel Collins is recorded in the office of the Register of Wills for the city aforesaid, and that said Daniel Collins died possessed of said lot or parcel of ground, and that said Daniel Collins, by his last will and testament, declared it to be his wish and desire that his wife Catharine should retain possession of the property or lot of ground herein above described, for the purpose of raising and educating the children of said Daniel Collins and his said wife Catharine; and if it should become necessary for the purpose aforesaid, said testator wished one of the said houses to be sold and applied as aforesaid, and his wife to have her one-third, and the balance to be used as aforesaid, viz., to raise and educate the said children of said Daniel Collins and his said wife Catharine; and if the jury shall further find that said Daniel Collins, by his said last will and testament, did will and desire that all the remaining property, after raising and educating his said children, and after deducting his wife's thirds, should be divided, share and share alike, among his five children, when they arrived at age; and that said Daniel Collins departed this life, leaving a widow, Catharine, and five children of said Daniel Collins, him surviving; and shall further find that said Daniel Collins, by his said last will and testament, appointed William Reese and George W. Chandler, as executors of said last will and testament, and that said Reese, on May 7th, 1844, renounced all right, title or claim that he had by virtue of said appointment; and that letters testamentary were, by the Orphans Court of Baltimore City aforesaid, granted to said Chandler, upon the estate of said Daniel Collins, and that the Orphans' Court of Baltimore City passed an order on May 24th, 1865, authorizing and empowering said Chandler, as executor as aforesaid, to sell at public sale property hereinbefore described, fronting thirty feet on the north side of West street, and that said Chandler, as executor as aforesaid, and by virtue of said order, did sell said property on the north side of West street, at public auction, to George T. Waters, and that said sale was reported to said Orphans' Court, and was by said court approved; and that the said Chandler, as executor aforesaid, made, executed and delivered unto said Waters, the assignment offered in evidence by the plaintiff, and dated June 8th, 1865, of and for said lot of ground fronting thirty feet on the north side of West street. And if the jury shall further find, that said Waters did make, execute and deliver unto said George W. Chandler, the sublease offered in evidence by the plaintiff, from said Waters to said Chandler, dated June 8th, 1865, for the lot fronting fifteen feet on north side of West street, then the plaintiff is not entitled to recover, and their verdict must be for the defendant.

7. If the jury shall believe from the evidence in this case, that Daniel Collins, during his life-time, was possessed of the lot of ground fronting thirty feet on the north side of West street, and described in the assignment offered in evidence by the plaintiff, from George W. Chandler, as executor of said Collins, to a certain George T. Waters, and dated June 8th, 1865, and that said Chandler, as executor as aforesaid, executed and delivered said assignment to said Waters; and that the said Waters executed and delivered unto said Chandler, the sublease from said Waters to said Chandler, dated June 8th, 1865, offered in evidence by the plaintiff; and said Chandler made, executed, acknowledged and delivered unto Thebedeaux Chandler, the assignment from said Chandler to said Chandler, dated December 10th, 1868, and offered in evidence by the plaintiff; and that said Thebedeaux Chandler and William Edward Chandler, her husband, if the jury find the latter to be the husband of the former, did make, execute and deliver unto Elizabeth A. Kessler, the assignment dated July 24th, 1872, from said Thebedeaux Chandler and her said husband, to said Kessler, and offered in evidence by the plaintiff; and that said Kessler and her husband, if the jury find the latter to be husband of the former, did make, execute and deliver unto the defendant, the assignment from said Kessler and her husband to the defendant, dated October 13th, 1874, and offered in evidence by the plaintiff, then the plaintiff is not entitled to recover, and their verdict must be for the defendant.

The court (Brown, J.,) granted the defendant's first and second prayers, and rejected his third, fourth, fifth, sixth and seventh prayers, and gave the following instruction to the jury:

The court instructs the jury, that if they find that Daniel Collins was lessee from Alexander Gould, of the lot mentioned in the evidence, situated on the north side of West street, in the City of Baltimore, and that said Collins built two houses on said lot about forty years ago, with an alley between them, running from West street to the rear of said houses, with one gate opening from said alley into the yard of one of said houses, and another gate opening from said alley into the yard of the other of said houses, and that said alley was made and designed by said Collins for the common use and benefit of both said houses, and was so used by the occupants of said houses so long as Collins continued to be the owner thereof, and ever since, until it was obstructed by the defendant in such manner that all beneficial use thereof by the plaintiff was prevented; and if they further find that the plaintiff was in the possession of the westernmost of said houses under the deed of assignment to him, given in evidence, at the time when said alley was obstructed by the defendant, then the plaintiff is entitled to recover.

And the plaintiff offered the following prayer, which was granted by the court:

That if the jury, upon the instruction given by the court, find their verdict in favor of the plaintiff, they may award such damages as will compensate him for the inconvenience he has sustained, if any, because of any interference by defendant with the reasonable use and enjoyment of said alley by the plaintiff, and they are also at liberty to consider the motives of defendant in so obstructing said alley, and if they find he acted wilfully and wrongfully in so doing, and with intent to injure the plaintiff, they may award the plaintiff such sum as will in their judgment punish the defendant for his wilful acts.

The defendant excepted, and the verdict and judgment for $500, being for the plaintiff, the defendant appealed.

The cause was argued before BARTOL, C.J., BRENT, GRASON, MILLER, ROBINSON and IRVING, JJ.

Arthur W. Machen and R. J. Bouldin, for the appellant.

From the prayers of the defendant which the court rejected, and more particularly from the court's own instruction, it is apparent that the judge...