Morrill v. Gelston's Lessee

• Decision Date: 02 June 1871
• Citation: 34 Md. 413
• Parties: GEORGE E. MORRILL and MARY E. MORRILL, his Wife, v. HUGH GELSTON'S LESSEE.
• Court: Maryland Court of Appeals

34 Md. 413

GEORGE E. MORRILL and MARY E. MORRILL, his Wife, v. HUGH GELSTON'S LESSEE.

Court of Appeals of Maryland

June 2, 1871

APPEAL from the Superior Court of Baltimore City.

Ejectment instituted by the appellee against the appellants, to try the title to and obtain possession of a lot of ground on Lombard street, in the city of Baltimore. Plea "not guilty" and issue thereon.

Exception: At the trial of the cause, the lessor of the plaintiff to sustain the issue on his part, offered in evidence to the jury the admission of the defendants by their counsel in open Court, that the premises described in the declaration had been duly granted by the State of Maryland by patent, and that by regular transfer of title from the patentee, the seizin in fee of the said premises was, on the 18th of February, 1858, in John S. Donnell William Donnell and James J. S. Donnell; and further offered in evidence, subject to exceptions to be thereafter taken, a volume of the Land Records of Baltimore city, containing the record of a lease of the premises for the term of ninety-nine years, renewable forever, from the said Donnells to William M. Willis, made the 18th of February, 1858, also a mortgage of the same date from said Willis to the said Donnells, also a release of said mortgage by the mortgagees at the foot of the mortgage on said record, and a mortgage from the said Willis to Hugh Gelston, dated the 8th of April, 1858.

The lessor of the plaintiff then offered in evidence the original papers and docket entries in the case of Gelston vs Willis, ex parte, on the equity side of the Superior Court, under the laws relating to mortgages in the city of Baltimore, for the purpose of foreclosing the mortgage from Willis to Gelston--said original papers consisting in part of the petition for the sale of the mortgaged premises, the original mortgage from Willis to Gelston, and an account, verified by Gelston, of the amount due under the mortgage, the decree for the sale, the bond of the trustee duly approved, the report of sale by the trustee, the order of ratification nisi, together with the order of final ratification, and the deed from the trustee to the purchaser, the plaintiff's lessor.

The defendants offered no evidence.

And the lessor of the plaintiff then offered in evidence a deed from the trustee to Gelston, executed the 1st of March, 1861, and purporting to be made in pursuance of the decree in the case of Gelston vs. Willis.

Whereupon the lessor of the plaintiff offered the following prayer.

If the jury find from the evidence [the grant by the State of Maryland of the premises in the declaration mentioned, and the seizin in fee of John S. Donnell and others, parties to the lease to William M. Willis, being admitted,] the execution of the mortgage from Willis to Gelston, the lessor of the plaintiff, and the passing of the decree of the Superior Court of Baltimore City, upon the petition of said Gelston, and the sale to him and the final ratification thereof, and shall also find the execution of the deed from John H. Ing, trustee, to said Gelston, notwithstanding they shall also find the execution of the mortgage by said Willis to said John S. Donnell, and others, provided they find the release of the same, that then they ought to find their verdict for the plaintiff.

The defendants offered the following prayer:

That there is no evidence in the cause to sustain the plaintiff's right of action, and the jury must render their verdict for the defendants.

The defendants, under the right to except as reserved, urged three objections, to be found in the opinion of the Court, to certain evidence of the plaintiff's lessor.

The Court (DOBBIN, J.,) overruled these objections, rejected the prayer of the defendants, and granted the prayer of the lessor of the plaintiff. To this ruling of the Court, the defendants excepted, and the verdict and judgment being against them, they appealed.

The cause was argued before BARTOL, C.J., STEWART, MAULSBY, GRASON, MILLER and ALVEY, J.

Orlando F. Bump and J. Montgomery Peters, for the appellants.

The jurisdiction of a Court may be inquired into when its judgment is brought in question in a collateral action. Williamson vs. Berry, 8 How., 495, 540; Harris vs. Hardiman, 14 How., 334; Elliott vs. Piersol, 1 Pet., 328, 340; Hollingsworth vs. Barbour, 4 Pet., 446, 471; Shriver vs. Lynn, 2 How., 43, 60; Hickey vs. Stewart, 3 Howard, 750, 762; Webster vs. Reid, 11 How., 437; Wernway vs. Pauling, 5 G. & J., 500, 507; Boswell vs. Otis, 9 Howard, 336, 348; Harrington vs. People, 6 Barb., 607; Bloom vs. Burdick, 1 Hill, 130; Woodruff vs. Taylor, 20 Vt., 65.

In summary proceedings, where a Court exercises an extraordinary power under a special statute, the facts which give jurisdiction must appear upon the face of the record, and the proceedings stand on the same footing as those of a Court of inferior jurisdiction. Thatcher vs. Powell, 6 Wheat., 119, 127; Wickes vs. Caulk, 5 H. & J., 43; Shriver vs. Wilson, 5 H. & J., 130, 132; Owings vs. Worthington, 10 G. & J., 283; State vs. Merryman, 7 H. & J., 79; Corning vs. Deming, 11 Wend., 647; Striker vs. Kelly, 7 Hill, 9; Simon vs. De Barre, 8 Abb. Prac., 273; Kundolph vs. Thalheimer, 17 Barb., 506.

Section 782, of Article 4 of the Code of Public Local Laws only applies to mortgages executed after the adoption of the Code.

The Act of 1833, chapter 181, only authorizes an ex parte decree when the mortgage contains an assent on the part of the mortgagor sufficient to authorize the passing of a decree before his default. Kenly vs. Wierman, 18 Md., 302; Black vs. Carroll, 24 Md., 251, 257.

Statutes conferring special authority and contracts involving a forfeiture must be strictly construed. Shriver vs. Wilson, 5 H. & J., 130; Jackson vs. Silvernail, 15 Johns., 278; 2 Parsons on Contracts, 510, note y.

A deed executed by a trustee under a power must pursue the terms of the power. 4 Kent's Comm., 330, 333; 1 Sugden on Powers, 250; Dolan, et al. vs. Mayor & C. C. of Balt., 4 Gill, 394, 405.

The power conferred upon the clerk of the Court to record conveyances, is a special statutory power, and the Court cannot take judicial cognizance of such records made by its clerk. Code, Sup., Art. 18, sec. 51.

The production of the original record alone, is not sufficient proof of the release of a mortgage made at the foot of the record. Code, Art. 37, sec. 58; Code, Art. 18, sec. 1.

Record books are not admissible in evidence without proof of the loss of the original deeds. Brooks vs. Marbury, 11 Wheat., 78, 82, 99; Fox vs. Lambson, 3 Halst., 275, 280; 2 Phillips on Evid., ( Cowen & Hill's Notes,) 584.

The only record books which are admissible as original evidence are those which, instead of being mere copies of instruments that are original evidence, are themselves the original and best evidence of the facts they contain, and even then they must be proved to be the record books. 1 Greenl. Ev., secs. 483, 485.

John H. Ing and Attorney General Jones, for the appellee.

The equity proceedings do show the special jurisdiction upon their face. They are the same proceedings which were fully considered by this Court, upon the full record, at April Term, 1870, in the case of Mary E. Morrill, one of the appellants in this case, against Hugh Gelston (vide 32 Md., 116.) The Court found no defect in the proceedings, and reversed the order of the Court below in that case, awarding the writ of habere facias possessionem, solely on the ground that that summary remedy was not applicable under the circumstances of that case. Whilst the equity papers in that case were lost or mislaid, the present action of ejectment was instituted. When they were found, the case of ejectment was put upon the stet docket till the decision of the Court of Appeals upon the said order in equity. After which the ejectment case was duly put upon the trial docket, and with the result shown by the record now before the Court.

The trustee's deed was duly executed in exact accordance with the directions of the decree, to wit: "On obtaining the Court's ratification of the sale, and on the payment of the whole purchase money."

The production of the original records, and reading therefrom to the jury the several title papers offered in evidence, was sufficient legal prima facie evidence of every requisite to give validity to the said instruments. The clerk of the Superior Court of Baltimore city is the custodian of the books and papers pertaining to his office; and it is his duty to record all deeds, mortgages, &c., required to be recorded in said...