COURT OF APPEALS, JUNE TERM, 1821.
Bowie vs. O’Neale, et al. Lessee.
A defendant ift specimen t being in possession of the lamí ibr which the suit is brought, bolding'the same by a claim of title adverse to that of the plaintiffToi* twenty years or more, is not necessarily entitled to a verdict.
Tiie will of a husband does not Ítass bis wife’s and, and no possession of __ the same, by a devisee, under the will, can create a presumption of title.
The evidt-nee given by a deceased witness in a former trial of the same cause, and on the same issue, may be proved in. a subsequent trial, but not the letal efjfectoi such evi-
The depositions of witnesses on the survey, where they are dead, are competent evi dence, and the surveyor is a eompf-teut witness to prove where ->uch witnesses wire swon.» on the sur-
Appeal from Prince-George’s county court. Ejectment brought in the name of Lawrence O’Neale’s lessee against John F. Bowie, on two demises; one for a tract of land called Twinn, or Trivifer, or Twiforcl, lying in Prince-George's county; and the other for a moiety of the same land. Lawrence O’Neale having died, his heirs and widow were made parties, lessors of the plaintiff; and John F. Bowie having also died, his devisee was made defendant; defence was taken on warrant, and plots made and returned.
1. At the trial, the plaintiff read in evidence a patent granted to George Collins, for the tract of land called Twiver, dated the 1st of August 1673, for 440 acres of land, and the will of George Collins, dated the 20th of December 1683; in the will no mention was made of the land. He also read the will of William Selby, dated the 5th of November 1698, whereby he devised, amongst other property, unto his daughter Amie Hucker, the tract of land called Twyford, containing 100 acres. Also the will of Robert Hooker, dated the 20th of April 1711, devising to his son Samuel Hooker 100 acres of land, part of Twiver, willed to his wife Amy Hooker by her father William
*227
Selby. A deed from Samuel Hooker, and wife, to George Pouncey, dated the 15th of March 1720, for the land called Twyford, containing 245 acres. A deed from George Pouncey to Paul Hoye, dated the 19th of February 1722, for the land called Tioiford, containing 440 acres. The will of Paul Hoye, dated the 7th January 1727-8, devising the land, called Twifer to his eldest son James Hoye. A deed from Cephas Hoye to Thomas Contee,Bowie, dated the 25th of January 1791, for the land called Tioyver, containing 112 ácres, which had belonged to his father Dorset Hoye. A' deed from Thomas Contee Bowie to Lawrence O'Neale, the original lessor of the plaintiff in this cause, dated the 26th of December 1796, for the last above mentioned land called Twifer. Also the plot and explanations returned in the cause, together with the depositions of Thomas Contee, Thomas Barley, Josqjh Ryan, Grace Hoye, and William Sanbury, all of whom were admitted tobe dead. And the depositions of John MiGill, surveyor of Prince- George’s, to prove where the said witnesses were sworn, as marked on the plots. He also gave in evidence a copy of the rent rolls for Prince-George’s county to wit.
Acres, yearly rent
440 17 4 Twiver surv. 26th May 1 678, for George Collins, at a bounded white oak near adjoining to the land Barme, Possessrs. 30a. Jos. Harris. 50a. Thomas Palmer. 100a. Robt. Hooker. 100 Wm. Rodery. 100a. Robert Bowan, to be paid by Jos. Harrison. 70a. WinRons, to be paid by do. Twiver surv. 26th May 1678, for George Collins, at a bound white oak near adjoining to the land called Orchard, in a line of the land called Farme. Possessrs. 150—0 6 0 Robert Hooker’s heirs. 132—0 5 3g Jaines Russell. 100—0 4 0 Thomas Hodgkin. 150—O 6 0 Samel rlyde’s heirs. 100—0 4 0 Wm. Deacon, 30—0 1 2^ Thomas Dorsett.
['Alienations.]
George Harris, from Wm. Austin & wife, 1 43 1’ 9 Aug. 1706.
¿54 6 2 17 Jno. Bradford from Wm. Austin & wife, July 1710.
Robt. Bradley from Jno. Taney Hill, 15 Nov, 1710.
100 4 0 Josiah Wilsqn from Wm. Rolhery, 7 Mar. 1710.
*228180 7 2 Jereh. Sampson from Josiah Wilson, 15 Mar.-1714.
180 7 2 Roger Boyce from Jereh. Sampson, 15 ApL. 1717.
245 9 10 George Pouncey from Sami. Hooker, et ux. 15 Mar. 1720.
Joshua Cecil from Won. Collins, 29 June 1706.
28 1 1| Gunder Errikson from Isaac Cecil, 4 Aug-. 1722.
337 6 9 Rd. Read from Roll. Hooker, 7 Deer. 1724.
59 2 4i Rd. Read from John Bowen, 6 May 1725.
150 6 0 Sami. Heyde from Jno'. Bradford, 11 Feb. 1733.
Resd. into Reed’s Farm,
Resd. into part of Twiford, folio 105.
Resd. into Twiford, folio 111.
Resd. into part of Twiford, folio 120.
100 0 4 0 Formerly escheated by Rd. Read and. John White, & called Read’s Pasture, but never patented; now escheated by Colmore Beanes & called Beanes’ Pasture.
150 0 6 0 Won. Mackey from Edward Tilghman, 27 Dec. 1756.
Thos. Contee from Paul Hoye.
35 0 1 51 Resd. & Escheated into Hamson’s Lot__. John Haorison from Thos. Contee & Wife, 20th October 1767.
Also a copy or extract taken from the assessment books of said county for the years 1789, 1790 and 1796, viz.
Amt, Assesst.
Hoye, Cephas 57 10 10i
Quantity. Pr. Amt.
Thos. Contee Bowie,—pt. of Twiver 112116 64 8
He also proved, that the patent and deeds above mentioned were correctly located upon the plots. The defendant then read' in evidence, a deed from Robert Hooker to Fielder Bowie, dated the 27th of March 1778, for all his right to a tract or parcel of land, being part of a tract called Twiver, containing by patent 440 acres, and patented in the name of George Collins, and being the northennost part of said land called Twiver, and containing 200 acres more or less; and'gave evidence that the same was correctly located upon'the plots. He altso offered in evidence *229a deed from Robert Hooker to Richard Read dated the 7th of December 1724, for all his right to all or any part of a tract of land formerly called Twiford, lately resurveyed by Richard Read, and called Reed’s Farm, and containing 357 acres more or less. Also a deed of mortgage from Fielder Bowie to John F. Bowie, the original defendant in this cause, dated 20th of October 1789, for all the land purchased of Robert Hooker; and also offered pi-oof that a decree for the sale of the mortgaged premises in said deed mentioned, having been passed by the court of chancery, Thomas C. Bowie ivas appointed trustee for making said sale, and that the same was sold in pursuance of said decree, and the original defendant in this cause became the purchaser; and that a deed was executed to him by said trustee, dated the 7th of September 1808, for Reed’s Farm, part of Twyver, purchased by said Fielder Bowie oí Robert Hooker. The defendant then prayed the court to instruct the jury, that upon this evidence the plaintiff was not entitled to recover. But the court, [Key and Plater, A. J.] refused to give the direction; but were of opinion, and so instructed the jury, that if they should believe from the evidence that the deed from Robert Hooker to lielder Bowie was correctly located upon the plots, and that Fielder Bowie, and those under whom he claimed the land in question, were in possession thereof, and used and occupied the same by a title or claim of title adverse to that of the plaintiff, for twenty years or upwards before suit brought, that then they ought to find a verdict for the defendant for said land, or so much thereof as they should find to have been so held. The defendant excepted.
2. The plaintiff then, to prove that Bor sett Hoye died in possession of the land located by the plaintiff, and during his life possessed and cultivated the same, offered in evidence the depositions, taken on the survey and returned with the plots, of Thomas Contee, aged upward of 80 years, Thomas Early, Joseph Ryan, Grace Hoye and William. Sansbury. All of whom it was admitted w'ere dead. The defendant objected to this evidence, but the court overruled the objection, and permitted the depositions to be read.
The plaintiff then swore John Mi Gill, the surveyor of the county, to prove where said witnesses were sworn—The de*230fendant also objected, to Ms testimony; but it was admit-, ted, and the whole of it delivered to the jury.
- The defendant then offered to prove by a competent and legal witness, that when a jury was formerly empannelled to try this cause, Eversfield Bowie who had been examined on the survey and who is since dead, and who was sworn in court at the time, stated that the land had been in the possession of and cultivated by Fielder Bowie for a number of year's, and as far as the witness could remember, that he died in the seisin and possession thereof, and that it descended to his son Allen Bowie, who also took'possession, cultivated it until his death, and died seised of it, and that after his death the same being descended to his infant son, Thomas C. Bowie, his guardian entered upon the land, cultivated it for his ward, and continued in the possession of it until it was sold under a decree of the chancery court as before stated. But the court was of opinion that the whole of this last testimony was illegal, and would not suffer any part of it to be offered to the jury. The defendant excepted.
' 3. The defendant then pz-ayed the court to instruct the jury, that the wills of William Selby and jRobert Hooker, (the latter dated in 1711,) did not pass to the devisees the estates of the wives of the respective testators, and that no possession by the devisees mentioned in said wills, under said wills, of a part of Twiver, can create a presumption of title; and that the presumption arising from the possession was rebutted by the wills. But the court refused to give the instruction. The defendant exceptéd, and the verdict and judgment being against him he prosecuted this appeal.
The cause was argued before Buchanan, Earle and Horsey, J .
.
Magruder, for the appellant,
cited 1 Phillip’s Evid 199.
Stephen, for the appellee.
Upon the first bill of exceptions cited 1 Bac.Ab. tit. Baron Feme, (J.) 496. Plummeret al. Lessee vs. Lane et al. 4 Harr, fy MiHm. 72. Carroll et al. Lessee vs. Norwood, 4 Harr. M‘ Hen. 287; and Lewis’s Lessee vs. Waters, o' Harr. MiHen. 480, 433. On the second bill of exceptions he cited 1 Phillip’s Evid. 174,199. *231'He afterwards admitted that the opinions in the first and third bills of exceptions were erroneous.
Dorset, J.
delivered" the opinion of the court. The counsel for the appellee having admitted that there was error in the opinions of the court below, as declared in the first and third bills of exceptions, it is only necessary for the court to decide on the second—and we have no doubt, that if a witness who has been examined in the trial of a cause should die, and a new trial should be had in the same cause, and on the same issue, after his death, the testimony which he gave on the first trial may be proved on the second.
The necessity of the case renders the admission of such proof indispensable, and no injustice can result from the adoption of the rule, as the testimony of the deceased witness was not only given under oath, but was given judicially in the trial of the cause between the same parties and on the same issue, and the person to be affected by the testimony enjoyed the invaluable right of cross examination. The rule is accompanied by limitations, which render it subservient to the purposes of justice alone. The evidence given to the jury by the deceased witness, must be proved, and it will not be sufficient that .the witness should give his own inference, or depose to the legal effect, -as the jury alone are competent to draw conclusions of fact from testimony.
In this case, the appellant below offered to prove by a competent and legal witness, “that when a jury was formerly empannelled to try this cause, Eversfield Bowie, who had been examined on the survey, who is since dead, and who had been sworn in court on the said trial, proved that the land had been in the possession of, and cultivated by Fielder Bowie, for a number of years, and that, as far as the witness could remember, he died in the seisin and possession thereof,” and so forth.
It is most evident then, that the witness was not produced for the purpose of proving the effect of the testimony given by the deceased witness, but to declare on oath what he did actually prove.
•' Whether the testimony -which the witness would have given, if the court had permitted him to have been sworn and examined, would have been legally admissible, it is *232impossible to- anticipate, but as lie was tendered for the purpose of giving testimony which was legal, he ought to have been heard, and then his proof, be it what it might, would have been a fair subject for judicial examination.
The court do not mean to intimate an opinion, whether any of the facts which the appellant offered to prove in the manner stated in the bills of exceptions, were or were not legally the subject of traditional proof.
The court therefore dissent from the opinion of the county court; as expressed in the second bill of exceptions^ and reverse their judgment.
JUDGMENT REVERSED, AND PÍIOCEDENDO AWARDED.