Catrop's Lessee v. Dougherty 2 Md. 383

GENERAL COURT, (EASTERN SHORE.)

SEPTEMBER TERM, 1789.

William M. Catrop’s Lessee against John Dougherty and Wife.

THIS was an ejectment for a tract of land called Jacob and John’s Pasture, lying in Talbot County, containing 340 acres. The defendants took defence on warrant, and plots were returned.

Verdict for the plaintiff.

At the trial of the cause, a bill of exceptions was taken, bv which it appears that the plaintiff having offered in evL *384dence, that Richard Ratcliff was seised in fee-simple of a moiety or part of the said tract of land called Jacob and John’s Pasture, (which part was located on the plots by the plaintiff and defendants.) then gave in evidence the will of r . , , , , . . Richard Ratcliff, dividing the land between his two sons James and John, as follows, viz. “ I give and bequeath unto my son James Ratcliff, one half of one hundred and seventy acres of land, called by the name of Jacob and John’s Pasture, next to the main road, on the plantation where I now live, to him and the male heirs of his body for ever. Item, I give and bequeath unto my son John Ratcliff, the other half of that tract of land called Jacob and Johti’s Pasture, and next unto Hog Neck, to him and his male heirs for ever.” Which divisions between the said sons’ parts are located on the plots by two different divisional lines, drawn by the plaintiff and defendants.

The plaintiff then read in evidence a deed of bargain and sale, dated the 3d of January, 1775, from Joseph Ratcliff (admitted to be the son and heir of John Ratcliff) to the lessor of the plaintiff, which deed recites that “ whereas the father of the said Joseph was seised in tail of part of a tract of land called Jacob and John’s Pasture, and so seised by his deed of bargain and sale, sold and conveyed the same to James Ratcliff, his brother ; and whereas the father of the said Joseph is since dead, and the said Joseph is issue in tail and heir at law; and whereas the estate conveyed by the said deed of bargain and sale, has ceased and determined by the entry of the said Joseph and death of his father; and whereas the said Joseph hath sold and dis - posed of the said part of the tract of land aforesaid, to the said William Marsh Catrop and his heirs, and means and intends to bar and break off the entail by this instrument of writing, and to convey the fee-simple of the said part of the said tract of land to the said William M. Catrop and his heirs,” &c.

*385The plaintiff also gave in evidence, that the said John Ratcliff was dead antecedent to the execution of the said last-mentioned deed; and afterwards, to make title in the lessor of the plaintiff to the said land devised by the said Richard Ratcliff'to the said John Ratcliff, according to the deed from Joseph to the lessor of the plaintiff, the plaintiff offered to read in evidence a deed of bargain and sale from John Ratcliff to James Ratcliff, dated the 8th of March, 1734, “ for all that part of a tract of land called Jacob and John’s pasture, bequeathed to me by my deceased father Richard Ratcliff, beginning at the end of Thomas Eubank’s south and by west line in a branch; and running thence S. W. 80 perches, thence N. W. 100 perches, thence S. E. and by S. half a point southerly till it intersects the E. S. E. line of the aforesaid land called Jacob and John’s Pasture, thence with the said line till it intersects Thomas Eubank’& part or moiety of the said land, containing and laid out for 85 acres.”

The reading of which deed was objected to on the part of the defendants, because the courses of the said deed were not located on the plots in this cause, Whereupon the court were equally divided, and the deed permitted to be read in evidence for the purpose aforesaid ; and thereupon the defendants by their counsel excepted, &c. according to the act of assembly, &c. The bill of exceptions was signed by H A.RRISON, Ch. J. The record transmitted to the Court of Appeals does notj(state which of the judges sat with the Chief Judge on this trial. The counsel were,

Hayward and Martin, (Attorney General,) for the plaintiff.

Cooke and Tilghmn, for the defendants.

Cooke, for the appellants.

The defendants in the Court below claimed under the deed made by John, the devisee of Richard Ratcliff, dated 8th March, 1734, and they did ' *386not locate this deed on the plots, because they were in possession, and it rested on the plaintiff to shew his title.

The plaintiff below alleged the land was entailed, and purchased it of the heir of John, and without any evidence of a partition, divided the land devised to James and John by a red line drawn on the plots, and the defendants divided by a black line, and the plaintiff, to prove his location, read the deed of John, dated in the year 1734. It is contended, on the part of the appellants, that this deed ought to have been located, otherwise the jury might be led to believe it proved the plaintiff’s location, which it would not do, for the plaintiff’s location differs from the courses of the deéd, and leaves out several descriptions.

The ejectment is brought for the whole tract. The defendants could have no notice of what part the plaintiff claimed, but by his location. The defendants knew, he had no evidence to support his location, and, therefore, as he meant to controvert it, they made a different one. If the plaintiff meant to have offered record testimony to support his claim, he ought to have laid it down, that the defendants might have had notice. The defendants were therefore surprised, and the Jury too were induced to suppose, the deed supported the plaintiff’s location, when it plainly appears if it had been located it would not have supported it.