Parker v. Wallis

• Decision Date: 08 March 1883
• Parties: CHARLES PARKER v. HARRISON WALLIS.
• Court: Maryland Court of Appeals

60 Md. 15

CHARLES PARKER v. HARRISON WALLIS.

Court of Appeals of Maryland

March 8, 1883

Appeal from the Circuit Court for Prince George's County.

The case is stated in the opinion of the court.

The cause was argued before Miller, Alvey, Robinson and Irving JJ.

Marion Duckett and Daniel R. Magruder for the appellant.

C C. Magruder, Jr., and Frank H. Stockett, for the appellee.

Irving J., delivered the opinion of the court.

This was an action of trespass quare clausum fregit, brought by the appellee against the appellant, for the breach of the appellee's close, which is described in the declaration as called "Taylorsburg," and lying in Prince George's County, and described in a deed from Margaret E. Lowrie and Emmerline Sheriff, dated July 28th 1866, duly recorded.

The defendant pleaded not guilty. Under this plea, and issue joined thereon, the defendant contended, that the plaintiff was remitted to an action of ejectment, to recover the possession of the land, before he could bring trespass, because he was not in the actual possession thereof, having been ousted, as defendant contended, by him who had entered and was in possession by title paramount to that of the plaintiff. If the appellant was able to maintain this construction by satisfactory proof, there can be no doubt that the verdict should have been in his favor. In fact, it needs the citation of no authority for the further position, that if the defendant could show, by legally sufficient evidence, that the locus in quo, alleged to have been invaded, did not belong to the plaintiff, and he was not in the actual possession of it, the defendant would not be liable in this action, although he failed to show title in himself. In other words, the rule is undeniable that a plaintiff in trespass quare clausum fregit, must recover on the strength of his own title, or actual possession against a wrong-doer. Norwood v. Shipley, 1 H. & J. 295, etc.

The plaintiff in this suit holds by deed set out in his declaration. His deed is by courses and distances, and he traces title back to Benjamin Lowndes, who took deed from William Stewart, July 27th, 1804. Both the Lowndes and the Lowrie deed called the land "Taylorsburg," and they both confessedly covered the same land. The defendant admitted of record the plaintiff's title to "Taylorsburg," and his own witnesses proved as a matter of fact, that the locus in quo was within the lines of the plaintiff's deed, and within the lines of "Taylorsburg." This was testimony of defendant. In fact, there seemed to be no contention on that score, but both below, and in this court, the contention was based on the ground that the defendant claimed under holder and better title, which overlapped upon the plaintiff's paper title, and took the locus in quo from him.

It was admitted that the plaintiff was in possession of part of the land covered by the deed. This admission was made at the hearing; but independently of the admission, the plaintiff established by proof actual possession of part of the land embraced in his deed. But the defendant as a matter of fact denies that he was in possession of that part of it, whereon was the locus in quo. The plaintiff does not contend, that he ever cultivated the part in dispute, or enclosed it; but rests his claim to possession on the actual possession of part and certain acts with reference to the locus as proving actual possession, which acts, or the evidence of them is excepted to. With the view we have of the case, however, it will not be important to decide upon the admissibility of the testimony objected to.

Here then we have a plaintiff holding under paper title apparently good, to a parcel of land described by name, courses and distances, and in the actual and undeniable possession of part of the land. In such case, possession of part is a possession of the whole of the land covered by, or embraced in his title papers. Gibson v. Martin, 1 H. & J. 545; Casey v. Inloes, 1 Gill, 496; Gent v. Lynch, 23 Md. 58.

Such title, with such possession as this plaintiff had, therefore, were sufficient to maintain this action against a trespasser; and unless the alleged trespassing defendant had paramount title, or had acquired such actual possession as amounted to an ouster of the plaintiff from the part of the land included in plaintiff's deed, which is the subject of dispute against him.

We are all clearly of opinion, that there was no such disseisin of the plaintiff, by the defendant, and possession of the same by him, as to defeat the action of trespass by one having title, and either actual or constructive possession. The land, of which the defendant claims to have obtained possession and ousted the plaintiff, is an outlying unenclosed lot, known as the sand lot. Since this action was brought, the defendant has built a shop on it; but when the alleged trespasses were committed, the defendant did not occupy the land, did not cultivate it, and had not enclosed any part of it. All that he had done was to dig sand on and from it; from time to time and to sell the same. The entries thereon for that purpose were but successive acts of trespass against the true owner, if he was not owner himself. We are unable to distinguish it from Gent v. Lynch, 23 Md. 65, in this respect. It appeared that the defendant had at one time obtained injunction against somebody for getting sand on this lot; but the plaintiff was not a party, and not in any way affected by it. The statement of a witness that since the injunction the defendant was the only person in possession controlling the land, does not establish possession without indicating the acts of possession. It could only refer to his acts of getting and selling sand from the lot in question, which are the only indication he gave of a claim to the land, being the same kind of acts of which the plaintiff testified himself, and proved by others he (plaintiff) was doing, selling sand therefrom. To work an ouster, the acts must be such as indicate to the world a claim of right to the land--acts of exclusive and continuous possession, open and notorious; and unless under color of title, must have continued for twenty years. We will now inquire whether the defendant had such paramount title to the locus in quo, that the alleged acts of possession may be referred to a lawful possession under such title.

The defendant claims the land under deed from Jane C. Penn, dated April 1st, 1881. This suit, it may be mentioned here, was brought in September following. The defendant's deed is not by courses and distances, but by calls, starting, it says, from the end of third line of "Yarrow." After giving the general direction of the lines and calls, it then adds, all "lands owned by Hanson Penn" not already conveyed away by his executors or the grantor. The will of Dr. Hanson Penn was also offered in evidence by the appellant to show Mrs. Penn's title. By that will, in respect to his real estate, Dr. Penn directs as follows: "My will and desire is, that all my real estate shall be sold by my executrix and executor hereinafter named, or either of them for such price or sum of money, and upon such terms as they, or either of them, shall think best, whenever my dear wife shall desire a sale thereof, and the proceeds of sale of said real estate invested by my executrix and executor hereinafter named, or either of them, in some safe and productive fund for the sole and exclusive use and benefit of my dear wife." Mrs. Jane C. Penn and Nicholas Carroll Stephen were appointed executors. It appears Mrs. Penn renounced the executorship, and letters testamentary were granted to N. C. Stephen, the other executor, sold all the land of the testator, and conveyed the same to the purchaser, James P. Magill. This very clearly appears from the bill in chancery, filed by...