Volume 10 — Maryland Reports

On the 27th of March 1850, the appellant filed his claim for a lien, under the mechanics lien laws applicable to Allegany county, against a house and lot owned by the appellee, and, on the 13th of March 1854, sued out a scire facias thereon, directing the appellee to show cause “why a writ of scire facias shall not issue upon the said claim as provided” by said acts of Assembly.

This was an action at law for dower in a tract of land called “Ruthburgfi,” brought by the appellee, as widow of her late husband, Henry R. Pratt, against the appellants.

Trespass vi et armis, by the appellant against the appellee, then sheriff of Allegany county, for taking and carrying away certain goods and chattels belonging to the plaintiff. The pleas were, 1st, non cul, upon which issue was joined, and six others, which are sufficiently stated in the opinion of this court, and to which the plaintiff demurred. The court, (Perry, J.,) overruled this demurrer and gave judgment for the defendant, from which the plaintiff appealed.

Assumpsit brought by the appellees against the appellant upon an open account, commencing the 8th of May 1845, and ending the 10th of October 1846. Pleas non assumpsit and limitations. Exception. The plaintiffs proved the sale and delivery of the goods specified in the account. The defendant proved, that on the 8th of May 1845, he passed to the plaintiffs his own note for $266.48, the amount of the bill of goods that day made, and certain collaterals amounting to $102.68.

The bill in this case was filed by the appellants, for an injunction to restrain the appellee from further proceedings in an ejectment suit to recover certain lands which he had sold to the complainants.

The bill in this case was filed by the appellant on the 1st of December 1852, claiming dower out of certain real estate of which her liusband Noble Warren was seized during the coverture, and which bad been sold during his lifetime without any relinquishment of her dower therein, and also claiming rents and profits for arrears of dower from the death of her husband.

Appeal fro.m the Orphans Court of Prince Georges county. This appeal was taken by the appellant from an order of the court’ below, passed on the 23rd of May 1855, revoking the letters of administration upon the personal estate of Francis Edelen, deceased, which had been granted to her as widow of the deceased, on the 15th of March 1853, and granting letters of administration pendente lite to the appellee, one of the executors named in the will of the deceased, about which a…

Assumpsit, brought by the appellees as holders, against the appellant as maker, of a promissory note for $1873.69, payable to blank order at four months, and dated the 27th of July 1853. Plea, non assumpsit. Exception. The signature of the maker of the note was admitted, and also that the blank for the name of the payee was filled up with the plaintiffs’ names at the time suit was brought.

Replevin by the appellant, who was appointed administrator ad colligendum of the estate of Samuel Owens on the 23rd of February 1049, to recover a negro slave named. Milly, alleged to belong to said estate. Pleas, non cepit, property in defendant, property in a stranger, and actio non accrevit infra tres amos. 1st Ewception. The evidence in the case on both sides is sufficiently stated in the opinion of this court.

Trespass quare clausum fregit, brought by the appellee against the appellant, to recover damages for throwing down his fences, entering upon his tract of land called “Hoye’s Big Pasture,” and scattering, frightening and injuring his cattle, which were depasturing thereon, during the year 1850. The pleadings are sufficiently stated in the opinion of this court. Isi Exception.

This was an appeal, taken by the appellants after filing their answers, from an order of the court below, (Krebs, J.,) granting an injunction upon a bill filed by the appellees, the allegations of which are sufficiently stated in the opinion of this court. ' •

Assumpsit by the appellees against the appellant, as endorser of a promissory note for i!i>380, made by George Calvert, dated “Baltimore, February 16th, 1854,” payable at six months after date, to the order of the defendant, and endorsed by him. Plea, non assumpsit'. Exception. The plaintiffs having proved the handwriting of the maker and endorser, offered in evidence the notarial protest as sufficient evidence of notice to the defendant to bind him in this action.

The bill in this case was filed by the appellees, to vacate as fraudulent a deed from Daniel M. Stoup to Susan A. M, Taggart, for Lot, No. 14, in the town of Oakland, and to' compel Stoup to convey the same to them, and for an account of the rents and profits from the date of their purchase under execution upon their judgment.

Assumpsit brought by the appellee against the appellant and William Rogers, partners under the name of “Rogers & Boyd,” upon a promissory note for $152.59, dated the 19th of January 1852, payable originally to blank order, four months after date, and signed with the firm name. Rogers failed to appear, and a judgment was rendered against him by default. Boyd appeared and plead non assumpsit. ■ Exception. The proof in the case is fully stated in the dpinion of this court.

This appeal was taken from a judgment of condemnation, rendered by the court below, (Crain, J.,) in an attachment case. The pleadings and facts of the case as they appear in the record are fully stated in the opinion of this court.

Ejectment by the appellants against the appellee, for a tract of land in Allegany county, being lot No. 3,978, one of the military lots westward of Fort Cumberland. Plea, non cul. Exception. The plaintiffs offered in evidence the patent for the J.ot, the will of the patentee, Murdock, devising it to his wife, in fee, and a conveyance from her, dated the 10th of May 1830, to George Thistle, who died intestate in 1847, leaving the plaintiffs, his children and heirs at law.

John B. Snouffer applied for the benefit of the insolvent laws, on the 3rd of August 1852, and the appellee was appointed his trustee, and gave bond as such, and under order of the court, sold all the property of the insolvent on the 30th of August 1852.

The appellant was indicted for being the father of an illigitimate child, begotten and born in the State of Pennsylvania, but now with its mother, residing in Allegany county.

<p>Appeal from the Circuit Court for Allegany county.</p> <p>This was a scire facias, issued by the State against the appellants upon a forfeited recognizance, to which they appeared and bled a general demurrer. The court, (Perry, 3.,) overruled the demurrer and gave judgment for the State, from which the defendants appealed. The facts of the case are fully stated in the opinion of this court.</p>

Ejectment by the appellee against the appellant, for a lot in the town of Cumberland. Plea non cut. 1st Exception. The plaintiff offered evidence showing a prima facie legal title to the lot in 'himself, and there rested his case.

Assumpsit, brought by the appellee against the appellant, to recover the value of a load of coal belonging to the plaintiff, which the defendant had taken on board his canal boat to carry from Cumberland to Alexandria.

<p>A testator having devised his home farm to his wife for life, with remainder in fee to his daughters as tenants in common, and his other estate to his son in fee, by a clause in his codicil recited, that since the execution of his will lie had purchased a wood-lot called “Swanston’s Lot,” “as a support for” his home farm “and the estate devised to his son,” devised the same as follows: “Now, therefore, I do give and devise and bequeath the said parcel of land to my said wife, and my three daughters,” (naming them,) “on the express condition, that the same is not, at any time, to be cleared or converted into arable land, but that they are respectively to be allowed to take therefrom as much wood and timber as will be required, and necessary with care for the purpose for which it was purchased as aforesaid.” Held ;</p> <p>That the several devisees took a fee-simple interest in “Swanslon’s Lot,” and not a mere incorporeal hereditament or easement, to cut timber and wood upon it: the attempt to prescribe the mode in which the lot was to be used during all time, is inconsistent with the devise and void.</p> <p>A condition annexed to a devise in fee, that the laud “shall he at all times held together by those who may be entitled to the same, by virtue of” the will, is inconsistent with the devise and void.</p> <p>Two different and distinct interests may be created in different persons to the same land; a right of common, or estovers, or way, may exist in one party, and the absolute right to use the property for all other purposes, in another.</p>

Appear from the Circuit Court for Prince Georges county. Assumpsit brought by the appellant, on the 14tb of October 1853, against the appellees as the administrators de bonis non of Michael B. Carroll, to recover the amount of an account for services alleged to have been rendered by tbe plaintiff as clerk and agent, for the deceased, for the period of eight years and eight months, at $500 per annum, commencing on the 1st of January 1843 and ending on the 31st of August 1851,…

Attachment on a judgment in favor of the appellants against H. G. Buchanan, laid in the hands of the appellee as garnish ee, who appeared and plead nulla bona. The plaintiffs then filed an interrogatory to the garnishee, which, with the answer thereto, is fully set out in the opinion of this court.

The bill in this case was tiled by the appellant against the appellee, to compel the delivery of a negro boy to the complainant, whom the bill alleges she had mortgaged to the defendant, on payment of the mortgage debt. The defence was that the boy was sold and delivered to the defendant by an absolute sale. The allegations of the bill and answer, and all the proof in the case, are fully stated in the opinion of this court.

<p>In an action of trespass for mesne profits, evidence of the net profits made by • the owner of an adjoining farm is not admissible for the purpose of showing what was made upon the land for the profits of which the suit was brought.</p> <p>In this case the decision of the court below, that in an action of trespass for mesne profits, the plea of limitations bars a recovery beyond' three years prior to the suit, was affirmed by a divided court.</p> <p>A prayer, that the defendant cannot deduct the taxes paid by him, “out of the profits” for the years for which they were assessed, until lie has been charged “vnth the profits of the previous years” barred by limitations, is erroneous in assuming the existence of profits during the years barred by limitations.</p>

This appeal was taken from an order of the court below, (Crain J.,) overruling the appellant’s exceptions, and ratifying the auditor’s account rejecting a claim as against the personal estate of Notley Young deceased, filed by the appellant as executor of Martha Young, in a cause in chancery involving both tire real and personal estate of the deceased. The history of the claim, as appears from the record, is this: Notley Young died in July 1846.

Assumpsit brought by the appellee against the appellant, for the value of services as overseer. The declaration contained, a count for work and labor, and a quantum meruit count. The defendant pleaded non assumpsit, and also relied upon an account in bar. Exception. The evidence in the case, and the prayer of the defendant, which the court below (Crain, J.) refused to grant, and to which ruling the defendant excepted, are fully stated in the opinion of this court.

Replevin, by the appellee against the appellant, to recover four negro slaves, Sophia, Anthony, and the children of Sophia, Mary and John. Pleas, non ccpit, property in defendant, and properly in a stranger. Exception. The controversy in this case was as to the proper construction of a marriage contract between Henry M. Chew and Elizabeth Ann Haw, executed on the 14th of January 1833.

- A scire facias, under the mechanics lien Jaws, was issued at, the instance of the appellees, from the court below, on the 1st of June 1852, reciting that the appellees, trading under the firm and style of “Brown and, Poultney,” on the 15th of May 1852, filed in said court a claim against ¡Samuel UesSj for the sum' of $876.10, against a certain lot of ground, particularly described, on Portland street in the city of Baltimore; improved by the erection of nineteen houses…

Trespass on the case, brought by the appellant against tlie appellee, to recover the value of a negro slave killed by the defendant’s cars, through the alleged negligence, mismanagement and carelessness of its agent, the conductor. Plea, non cul. 1 si Exception.

<p>A contract between G. and R. & T., provided, that “in consideration of $10,000, paid” by the latter to the former, G. agrees to give R. & T. “full power and authority to take from” his mine, “one thousand tons of cinnabar ore, of such quality as they or their agents shall select, and the same to smelt on the premises, or ship it away” for that purpose, “upon condition that they give” him “their obligation to pay over to” him one-third of the “net proceeds” of the ore if smelted on the ground, and one-third of the ore itself if shipped away, less expenses to the point of shipment which were in that case to be paid by him. It also provided, that “proper and legal papers” should “be drawn up as soon as may be, and signed by the parties,” when this “memorandum of agreement” is to be can-celled. Upon demurrer to a bill by R. & T., for the specific execution of this contract: Held,</p> <p>1st. That it cannot be specifically executed, because it is not mutual, fair, just, certain and reasonable, in all its parts: the fact that a substantial consideration was paid, cannot vary the construction of the instrument, or supply essentials in which it is deficient.</p> <p>2nd. But as the demurrer admits the allegations of the bill, that the complainants were deprived of the benefits of the agreement by the fraudulent contrivances of the defendant, he must be held to the confession and not allowed to answer, and compensation will be decreed by the court, without an issue of quantum damnificatus, the measure of damages being the amount paid with interest from the date of the agreement.</p> <p>Where a decree dismisses a bill so far as it seeks specific performance, but retains it for compensation, and the defendant does not appeal, he cannot, in the appellate court, complain of the provision in the decree for compensation; yet the complainants may so complain on their appeal, if being entitled to compensation, the decree does not go far enough in that behalf.</p> <p>A decree dismissed the bill as to specific execution, but retained it for compensation, “upon condition” that the complainants, within a certain time, filed the original contract in court to be cancelled, “otherwise the bill to stand dismissed. ” Held:</p> <p>That this condition did not take from the complainants their right of appeal, and if they had filed the agreement without any protest, they might have appealed and claimed a reversal or modification of the decree to suit the equity of the case.</p>

<p>A deed conveyed real and personal estate to certain trustees, and the survivor of them, and the heirs of the survivor, in trust to “sell, convey and dispose, of all or any portion” of said real and personal estate, “either at public or private sale, for cash or on credit,” as the trustees might think expedient; and from the proceeds to pay the debts of the grantor, and to hold the surplus for the benefit of the grantor during his life, and after his death it was to go as he should direct by will, and in default of a will, to his heirs and representatives : Held ,</p> <p>1st. That under this deed, the trustee had power to sell and convey the whole real estate to other parties, in consideration of their assuming to pay the debts of the grantor specified therein, and such conveyance is, in the absence ■of fraud, valid as between the grantees and the heirs at law of the grantor in the original deed of trust.</p> <p>2nd. That the circumstances, that the grantor in the original deed, urged the execution of the subsequent conveyance, and recognized the title of the grantees therein, by frequently stating to purchasers from them of portions of the land, and to those who applied to him to make such purchases, that ho was only a tenant at sufferance, that he had only a life estate in the property, that the foe was in the grantees, and that he was glad he was free from difficulty, because tho grantees had agreed to pay his debts for the property conveyed to them, amount to an estoppel in pais and binding on his heirs.</p> <p>A grantor is estopped from denying a title recognized in a deed under which he claims: a grantor is estopped from denying tho title of bis grantee; and a title acquired by the grantor after he has conveyed, by warranty, land to which he had no title, enures to the grantee by estoppel.</p> <p>Where a person having title to real estate, acquiesces in the sale of it by a person pretending to have title and having color of title, he is bound by such sale, provided no fraud was practiced.</p> <p>One of two grantees who has accepted the deed by acting under it, in executing conveyances for parts of the land, is estopped from denying the title of his co-tenant in common, and cannot claim the whole by a title paramount that under which his co-tenant claims.</p>

Assumpsit brought by the appellee against the appellant upon a promissory note, for $195.31, dated the 1st of March 1852, drawn by the defendant, payable one day after date, to the appellee or order, which was endorsed, “pay the contents of the within to J. P. Roman or order,” (Signed) “Wm. G. Furlong.” The writ was issued in the name of Furlong as plaintiff, whilst the declaration is drawn in the name of J. P. Roman as plaintiff, and endorsee of the note.

Appeals from the Circuit Court for Prince Georges county. This was a petition for freedom, fled on the 11th of September 185A, in the Superior Court of Baltimore city, by the appellants against Campbell, who, on the 2nd of December of that year, came in and disclaimed title, and on the 9th of the same month, the appellee filed his petition claiming title to the petitioners, as administrator d. b. n., c. t. a., of Walter Chew, exhibited his letters of administration, and…

Replevin, brought by the appellant against the appellees, for the recovery of certain goods. The defendants avowed the taking under a distress for two quarters’ rent due Mrs. Ebsworth under a lease from her to one Joseph Tucker.

Caveat by the appellant against probate of the will of Catharine Jennings, upon the ground that from extreme age and infirmity of body, she became insane and non compos mentis, and whilst, in this condition, the appellee, her son-in-law, procured the execution of the will by her. The will is dated the 7th of January 1853, the testatrix being at that time ninety-six years of age.

The will of Samuel Neilson, executed on the 19th of February 1840, contained the following legacy: “I devise and bequeath to the honorable John Purviance, his executors and administrators, the sum of $4000, in trust and special confidence, however, to be distributed and paid in such amounts, and to such persons, as tny friend, Richard Lemmon, shall direct and name, in accordance with the instructions given by me to him, and who will explain the reasons for my making this…

Superior Court of Baltimore city. This appeal was taken from an order of the court below, (Frick, J.,) overruling the demurrers of the appellants to a bill filed against them by the appellee. Each defendant filed a separate demurrer upon the ground of multifariousness.

Assumpsit brought by the appellees against the appellants, to recover the amount of certain drafts and a promissory note, drawn and made by Labe & Co., and endorsed by the defendants, dated respectively the 5th of December 1842, and the 6th of February 1843, and assigned by the Union Bank to the plaintiffs. Plea non assumpsit. Exception. The facts of the case are fully stated in the opinion of this court.

This was a scire facias under the mechanics’ lien laws, issued on the 11th of April 1855, upon a claim filed the day preceding, by the appellees against the appellant and Jacob F. Kridler, for materials alleged in the claim to have been furnished to Kridler as contractor, builder and architect, of a house erected on a lot, of which the appellant was at the time of their delivery the owner or reputed owner.

Attachment on warrant, issued at the instance of the appellee, to affect the goods, chattels and credits of Dewey.

On the 1st of May 1853, the appellant executed to “The American Homestead Association of the city of Baltimore,” a mortgage of a leasehold interest in a lot of ground in the city of Baltimore.

Apbbai, f?ow the equity side of the Circuit Court for Baltic prore county.

The bill in this case was filed by the appellees, the wife and infant children of Charles R. Taylor, on the 11th of December 1856.

Error, to the Circuit Court for Allegany county. The plaintiffs in error were indicted in the court below, for feloniously, wilfully and unlawfully, setting fire to and burning fia certain building, used as a brewery for the manufacture of beer.” The indictment is sufficiently set out in the opinion of this court.

- The appellant filed a petition in the court below, alleging that in September 1853, he had in his hands $4650 of his ward’s money, which he desired to invest in a mortgage upon real estate; that Jacob F. ICridler, then regarded as a respectable and thriving business man, applied to him for the loan of this sum, upon the security of a house and lot worth from $8,000 to $10,000, upon which was a prior mortgage of $2500, which Kridler agreed to have released; that deeming…

Appeals from the Circuit Court for Anne Arundel county. This was an application, by the appellee, for a rule upon the appellant to show cause why a mandamus should not issue, commanding him to surrender to the petitioner the office of State Librarian, and is the fourth time the case has been brought to this court. The facts and proceedings in the case, and the previous adjudications threon, are reported in 5 Md. Rep., 423 ; 7 Do., 466, and 9 Do., 83.

This is an appeal from an order granting an injunction and appointing a receiver, passed by the court below, (Lee, J.,) ¡upon a bill filed by the appellees against the appellants. The allegations of the bill are sufficiently stated in the opinion of this court.

These two appeals were, by agreement, taken up and argued together.

<p>An act of the Legislature, authorising a court of equity, upon the application or petition of the defendant in a certain cause, and “upon the establishment of a satisfactory prima facie case, to open any decree or order” which had been passed against him in said cause, to the end that he “may account fully, fairly and equitably for the estate” which had been under his management, and for á settlement of which the suit was instituted, “provided the said court shall be satisfied that justice will be promoted by opening such decree or order, and provided it be opened upon such terms,” as to costs, the nature of the defences tobe relied on, the taking of testimony, &c., “as to the court may seem consistent with equity, it being the design of this act to remove any legal impediment to the granting of such application and to afford the defendant such redress, upon the principles of justice and equity, as he may show himself entitled to, when relieved from the operation- of any technical or rigid rule of law,” is constitutional.</p> <p>This act does not impose on the court, as a duty, primarily to decide whether or not the defendant will be able vltimutely to make out his defences, but only that he shall exhibit a mlitfuctary prinw/ucie case.</p>

The mother testified that the child was illegitimate, and that when about six months old, she gave her to the appellant, in whose possession she now is, and who, at that time, kept and now keeps a house of ill-fame; and that she is willing the child should be bound to the appellee. It was also proved that the appellee is a woman of excellent character, and has means of taking care of the child, and giving her proper maintenance and schooling.

This is an appeal from an order granting an injunction and appointing a receiver, upon a bill filed by the appellees against the appellant.

, ' Appeal from the Circuit Court for Baltimore city. This appeal was taken from an order of the court below, (Krebs, J.,) dismissing the petition of the State, filed in the case of Elizabeth Smith vs. John S. Gittings, and others, pending in that court, in which certain property of Lambert S. Norwood, late clerk of the court of Common Pleas, conveyed to John S, Gittings, in trust, to indemnify the sureties upon his official bond' as clerk, had been sold and the proceeds…

■ On the 16th of January 1834, William H. Freeman executed a mortgage to the General Insurance Company of a house and lot in the city of Baltimore, to secure an indebtedness of $15,000. This mortgage was executed under the provisions of the act of 1826, ch. 192, and acknowledged, but was not recorded until the 2nd of April 1834.

This was an action for a malicious prosecution, brought by the appellee against the appellant. The declaration was in the usual form, except that it omitted to aver that the alleged malicious prosecution was “without probable cause.” Plea, non cul. 1st Exception.

the Circuit Court for Baltimore county. This appeal was taken from an order of the court below, (Price, J.,) granting an injunction, upon a bill filed by the appellees, to restrain the appellant from making a road upon the land of the complainants.

By the act of 1853, ch. 376, entitled, “An act for supplying the city of Baltimore with pure water,” power is given to the Mayor and City Council of Baltimore to “agree with the owner or owners of any land, real estate, spring, brook, water or water-course, earth, timber, stone or other materials, which the said Mayor and City Council of Baltimore may conceive expedient or necessary to purchase and hold, for the purpose of introducing water into the said city,” and if they…

<p>A deed of trust for the benefit of creditors was admitted to he void, and an attachment upon a judgment recovered by a creditor against the grantors was laid in the hands of the trustee, as garnishee, who was also a creditor of the grantors to an amount exceeding that of the fund in his hands, derived from the property conveyed by the deed. Held, that the garnishee had a right to set-off his own claim against the fund so in his hands.</p>

The appellant in this case claimed the sum of $>162.07, with interest .thereon, from the 14th of September 1830, as legatee under the will of Samuel J. Meekins, who died in October 1854.