« FöregåendeFortsätt »
or impeded by the issues made with others, or himself made liable for costs unconnected with his separate litigation. If he pleads nothing but the general issue, and is found in possession of any part of the land demanded, he is considered as taking defense for the whole. How can he call on the plaintiffs to prove how much he claims, or the jury to find a separate verdict as to his separate holding, when he will neither by his pleading nor evidence signify how much he claims? This was a fact known only to himself, and one with which the plaintiff had no concern and the jury no knowledge. If a general verdict leaves each one liable for all the costs, it is a necessary consequence of their own conduct, and no one has a right to complain.” (Greer v. Mezes, 24 How. U. S.
. R. 268.)
THE ACTION FOR THE RECOVERY OF REAL PROPERTY IN THE SEV
ERAL STATES THE PRACTICE IN MARYLAND, VIRGINIA AND WEST VIRGINIA.
In the state of Maryland, real property is recovered by the action of ejectment; and when a tract of land, or contiguous tracts, lie partly in one county and partly in another, an action of ejectment may be brought for the whole land in the circuit court of one of the counties; provided, if one person is in possession of the whole of the land, and resides in either of the counties where the land lies, the action must be brought in the county where such person resides, and if the person in possession does not reside in either of the counties, the action must be brought in the county where the greater part of the land lies, and in all such actions the court will have the same power to try the same, to order writs of re-survey and award writs of possession for the whole land, as if the whole land lay in the county where the court is held, the writs of possession to go to the sheriffs of the respective counties, and be by them returned to the court issuing the same, and the survey must be made by the surveyor of the county where the action is brought. (1 Code of Public Laws, art. 75, SS 46, 47.)
In the action of ejectment, as in other actions, whatever facts are necessary to constitute the ground of action, defense, or reply, as the case may be, must be stated in the pleading, and nothing more; and any declaration which contains a plain statement of the facts necessary to constitute a ground of action will be suficient, and any plea necessary to form a legal defense will be sufficient without reference to mere form; and it is not necessary to have any formal commencement or conclusion to any declaration or other plea. (1 Code, art. 75, SS 2, 3, 4.)
In any action of ejectment against two or more defendants they may sever in their defense; but, if plats be necessary, there must be but one set returned, which must show the claims and pretensions of all the parties; and where defendants in ejectment sever in their defense, the court must apportion the costs in such manner as may be reasonable and just. In all cases of a joint holding by two or more persons, they may declare on a joint demise whether they hold as joint-tenants, tenants in common, or in any other manner. (1 Code, art. 75, SS 48, 49, 50.) And if, on the trial of an ejectment, title be shown in any one of the lessors of the plaintiff, it will be sufficient to authorize him to recover to the extent of such title, though other lessors may be joined who have no interest, or may have parted with their interest, and on the trial of the action it is not necessary for any party to prove that the lands in controversy have been patented; but a patent will in all cases be presumed in favor of the party showing a title otherwise good. The statute also provides, that an actual inclosure shall not be necessary to prove possession, but acts of exclusive user and ownership, other than inclosure, may be give in evidence to the jury to prove possession. (1 Code, art. 75, SS 51, 52.)
No warrant of re-survey can issue in any action of ejectment, unless the court shall be satisfied that there is a dispute about the location of the lands claimed in the action; and where the parties hold or claim under the same title the lands in dispute, no warrant of re-survey can issue, except in cases where the parties claim different parcels under the same title, and it appears to the court there is a dispute about the location of the divisional line or lines. When the court shall consider a warrant of re-survey necessary, if the same be had at the instance of the defendant, or is made necessary by the defense taken in such case, the defendant must first make his survey; and if the warrant be had at the instance of the plaintiff, he must first make his survey; and if it shall appear to the court at the trial of the cause that a survey was not necessary, then the party requiring the same must pay the costs of the surveys.
Where surveys and plats are necessary, the line or lines (the location of which is disputed) may be located without locating the whole tract; so, where lines of a neighboring tract are necessary for proof or illustration, such line or lines may be located without locating the whole tract. The plats and certificates of survey in every case may be amended at bar; when the locations do not correspond with the variation, the same may be amended at bar to correspond therewith; objects to which the proofs apply may be placed on the plats, and witnesses may be examined who were not sworn on the survey, and a witness may be shown to be interested without locating his interest on the plats; provided, the court shall be satisfied the ends of justice will be attained by such amendment of plats and admission of witnesses. And in no action will plats be considered as pleadings or evidence per se; nor will any counter location be necessary to put the party locating any tract, line or object, on the proof of such location; and the opposite party nay controvert the same without any counter location. (1 Code, art. 75, SS 53-58.)
The action of ejectment will not abate by the death of either or any of the parties to the same, but upon the death of any defendant the action will be continued, and the heir or executor of the defendant, or other person interested on the part of the defendant, may appear to such action, and in case the proper person to defend do not appear at the court at which the death is suggested, the plaintiff may issue a summons, returnable to the next court, directed to the proper person to defend such action, and, upon such summons being served, the person summoned must appear; and if such person fail to appear upon being summoned, the court must issne an attachment of contempt against him, and compel him to appear to such action; and if the person suunmoned shall refuse or neglect to appear to such action by the fourth day of the court next after the court to which he may be summoned to appear, then the court may cause the appearance of such person to be entered, and there will be the same proceedings therein as if such person had voluntarily appeared, and all the proceedings had before the death of the party will be considered as proceedings in the action, and such further proceedings must be had to bring the cause fairly to trial as the court may deem proper.
. If the plaintiff in the action of ejectment die before judgment is given, the heir, executor, or other proper person to prosecute
such action, may appear and prosecute the same; but if such person do not appear to prosecute such action at the court at which the death is suggested, then the defendant may issue a summons returnable to the next court, directed to the proper person to proseente such action; and if such person, upon being summoned, shall fail to appear, the court must, upon being satisfied that the person so summoned is the proper person to prosecute such action, issue an attachment of contempt to compel an appearance of such person; and if the person so summoned do not appear to prosecute such action by the fourth day of the court next after the court to which such summons may be returned served, judgment of nonsuit will be entered, and such judgment will be as valid and have the same legal consequences and effect as if the same had been entered against the original plaintiff in the action; and if the person so summoned to prosecute shall appear to such action at any time before judgment of nonsuit shall be entered, all proceedings in the action, and such other proceedings will be had to bring the cause fairly to trial, as the court may deem proper. (Code, art. 2, SS 1, 2, 3.).
The action of ejectment in the state of Maryland, with such exceptions as the statute herein stated, is prosecuted about the same as at common law; and the action seems to be still brought in that state in the name of a nominal plaintiff as at common law.
In a case which recently came up to the supreme court of the United States upon a writ of error, to revise the judgment of the circuit court for the district of Maryland, in an action of ejectment brought by the plaintiff in error against the defendant to recover certain lands lying in that state, the former court laid down the following propositions:
In Maryland the distinction between common law and equity, as known to the English law, has been constantly preserved in its system of jurisprudence.
The statute of George the Second, which made lands in the American colonies liable to be sold under a fieri facias issued upon
. a judgment in a court of common law, did not interfere with this distinction; and under it a legal estate only, and not an equitable interest, could be seized under a fieri facias.
In 1810 an act of assembly was passed making equitable interests subject to the process of fieri facias; but the purchaser at the sale of an equitable interest under this process only buys the interest which the debtor had, and thus becomes the owner of an equitable
and not a legal estate; and it is not every legal interest that is made liable to sale on a fieri facias. The debtor must have a beneficial interest in the property, and not a barren legal title held in trust.
In the action of ejectment in Maryland the lessor of the plaintiff must show a legal title in himself to the land which he claims, and the right of possession under it, at the time of the demise laid in the declaration and at the time of the trial. He cannot support the action upon an equitable title, however clear and indisputable it may be, but must seek his remedy in chancery.
When there was a deed of land to a debtor in trust, which conveyed to him a naked legal title, he took under it no interest that could be seized and sold by the marshal upon a fieri facias; and the purchaser at such sale could not maintain an action of ejectment under the marshal's deed. But the plaintiff in the ejectinent suit offered evidence to prove that the trusts in the deed were fraudulent, and that the debtor purchased the land and procured the deed in this form, in order to hinder and defraud his creditors; and this proof was offered to show that the debtor had a beneficial interest in the property, liable to be seized and sold for the payment of his debts. This parol evidence could not be introduced . to enlarge or change the legal estate of the grantee against the plain words of the instrument. If the evidence were admissible, the fraudulent character of the trusts, as against his creditors, could not enlarge his legal interest beyond the terms of the deed. Although the debtor may have paid the purchase-money, that circumstance did not establish a resulting trust in his favor. The lessors of the plaintiff had a plain and ample remedy in chancery, where all the parties interested could be brought before the court. The instruction of the court below was, therefore, correct, that the plaintiff could not recover in the action of ejectment upon such a state of facts.
These propositions were laid down and discussed by Mr. Chief Justice Taney, himself a Maryland lawyer, and they are undoubtedly in accordance with the true policy of the state. (Lessee of Smith v. McCann, 24 How. U. S. C. R. 398.)
The state courts of Maryland hold that, to enable the lessors of the plaintiff to sustain the action of ejectment, it is essential that they be clothed with the legal title and the right of possession at the time the action is instituted. The plaintiff must always, in