Gent v. Lynch

Bartol, J.,

delivered the opinion of this Court:

This action was instituted by the appellee. The first and second counts of the declaration are in case for slander of the plaintiff’s title to a parcel of land situate in Baltimore county, containing about twenty-three acres, being part of a tract called “Stansbury’s Plains,” and distinguished by the name of “Nackey Ford’s Lot.” The third count is in trespass, for breaking and entering the same land, and cutting and carrying away wood. The defendant pleaded “Not Guilty.” The jury found a general verdict for the plaintiff.

At the trial below the'plaintiff offered one prayer, which was granted, and the defendant twelve, of which the 1st, 4th, 8th and 10th were granted, and the others refused; the defendant excepted.

The 8th, 9th and 12th prayers refer to the first two counts of the declaration, and will first he considered.

*63 The 9th prayer asserted that the plaintiff bad failed to offer any evidence of malice upon the part of the defendant in forbidding the sale, or want of probable cause in the defendant making the declarations offered in evidence in reference to said sale. This makes it necessary to refer to the proof.

Evidence was given that the plaintiff offered the property for sale at public auction in 1859, that the defendant was then present and forbid the sale, declaring that the plaintiff’ had only a dower interest in the land, and had no right to sell it, and that it belonged to him.

It further appeared from the evidence that the defendant had been advised by Mr. Boarman, his counsel, to forbid the sale. Evidence was given that the land had been sold by a constable, and the defendant had bought it; but Mr. Boarman testified that his advice was given upon the representations made to Mm by the defendant,. “ that he had purchased the property and owned it, and that the sale made to him by the constable had been reported to the Court and ratified; which statement he, Mr. Boarman, af-terwards found, by an examination of the papers, to be false; the sale by the constable had not been ratified, but had, in fact, been rescinded and set aside.” Mr. Boarman further testified that “when he afterwards informed the defendant of the true state of the case, he said he had been altogether misinformed, but admitted he had never paid the purchase money.”

Upon this proof we think the Circuit Court was right in submitting to the jury the question of malice and bonafides on the part of the defendant. This was done by the 8th prayer, granted by consent; and there was, consequently, no error in rejecting the 9th prayer.

In our opinion the 12th prayer was properly rejected also; the law upon the subject was correctly given to the jury in the 8th prayer.

It is stated in the bill of exceptions that the plaintiff offered in evidence a deed from the heirs of George Lynch to- *64 the plaintiff. The deed itself is not contained in the tran - script, the clerk certifying that it is not on file in the Court below. In the absence of the deed, it must be presumed that the rulings by the Circuit Court, with regard to it, are correct, and therefore this Court cannot say there was error in rejecting the 2nd and 3rd prayers.

There remain for our consideration the 5th, 6th, 7th ahd 11th prayers, and the instruction granted to the jury, on the prayer of the plaintiff.

(5th.) The 5th prayer asserts the proposition that the plaintiff, being only tenant in common of the land, could not maintain the action without joining her co-tenants.

The general proposition that in personal actions, as for trespass to lands, tenants in common must join, is supported by the authorities cited by the appellants on this point, and is no doubt well established. The rule is correctly stated in 1 Glvitty PI., 65. The same author, page 66, says: “Tn actions in form ex delicto, and which are not for the breach of a contract, if a party who ought to join be omitted, the objection can only be taken by plea in abatement, or by way of apportionment of the damages at the trial." See also note 1, same page, and 1 Wins. Saund., 291 ⅞, and 291 to, note (4.) We conclude that there was no error in rejecting the 5th prayer.

The only remaining question to be determined, is whether the facts offered in evidence by the defendant, operated a disseisin of the plaintiff, which bars her right of action, notwithstanding the title to the land is in her ? This question arises upon the 6th, 7th and 11th prayers of the defendant, and the prayer of the plaintiff.

Upon this question an examination of the authorities has brought us to the following conclusions:

1st. The gist of the action of trespass, is the injury done to the plaintiff’s possession. • In order to maintain the action, therefore, possession by the plaintiff is necessary. This possession may be either actual or constructive, a mere right of entry on lands is not sufficient, if they be in *65 Hie aetual possession and occupancy of a disseisor. The law is correctly stated by Greenleaf, in his excellent worh on Evidence, Foh 2, see. 619, where it is said: “A dis-seisee, though he may maintain trespass for the original act of disseisin, cannot have this action for any subsequent injury until he has acquired the possession by re-entry.”

2nd. Though “at one time it was doubtful whether the' action of trespass q. c. /. would lie at all v/here there was no actual possession, and the locus in quo “was in a wild, unoccupied state, yet it has long been settled, in this country, from the necessity of the case, not that the action will lie without possession, but that it will lie upon that possession which the law implies to be in the owner of land, when no other person is, in point of fact, on it. , In such case the owner has, constructively, the possession.” Ruffin, C. J., in Cohorn vs. Simmons, 7 Iredell, 190.

This is the meaning of the general expression used by the Court in Norwood vs. Shipley, 1 H. & J., 295 , and in several other cases cited in argument: That in order to maintain the action, it is necessary for the plaintiff to prove title to the land, or that he “was in the actual possession at the time of the alleged trespass.

Upon an examination of the proof in this case, a majority of the Court are of opinion that there was no such evidence of the disseisin of the plaintiff, or of the adverse possession of the land by the defendant, as to defeat the action.

The evidence is, that the land was an outlying, unenclosed lot, not at any time in the actual possession of the defendant, in such manner and by such acts of exclusive user and ownership as to establish an adverse possession in law, necessary to constitute an ouster or disseisin of the owner. The only possession proved, is that “ the defendant has cut and sold wood off it from time to time.” These Were mere successive acts of trespass, nothing more. The title being in the plaintiff, the constructive possession was' in her, and she was therefore entitled to maintain the suit.

*66 (Decided May 5th, 1865.)

Finding no error in the action of tbe Circuit Court, the . judgment will be affirmed.

Judgment affirmed.