Kelso v. Stigar

Alvey, C. J.,

delivered the opinion of the Court.

This is an action of ejectment brought by parties claiming to be descendants of Andrew Stigar, long since deceased, against the appellant, the defendant below, for the recovery of certain undivided interests in a parcel of land in the City of Baltimore. The parcel of land sued for is described in the declaration by metes and bounds, courses and distances, and as being the same piece or parcel of land described in a certain deed from Joseph Matthews, and others, trustees, to the defendant, bearing date December 23d, 1882, and which deed was duly recorded in the land record referred to.

The foundation of the claim and supposed right of entry arises, as contended by the plaintiffs, by way of reverter, occasioned by the diversion from the uses and purposes for which the land in question was originally conveyed by Andrew Stigar, the ancestor, to John Oornthwaite and Gerard Hopkins, and their heirs, in trust, by deed dated the 19th of June, 1113.

That deed was made for a consideration expressed, and it declared the uses and purposes of the laird granted to be “for and to the use of and purposes following, that is to say, for the use of the society of Christian people called Quakers, inhabiting and dwelling in and near the town and county of Baltimore, in the province aforesaid, to enclose and keep the same for a■ burying place, to bury or *387 inter those of the same society that may from time to time depart this transitory life, and also to erect or build a meeting-house for the same society of people, for the public worship of Almighty God, or such other improvements as they, the said society, may think proper.” The Quakers entered into possession, and held and used the ground as the property of the society, and conveyances were made from time to time to keep up the succession of trustees; and certain special Acts of the General Assembly of the State were obtained to confirm rights supposed to require such confirmation, and to confer rights as to the use and disposition of the property. Acts 1793, ch. 20; 1812, ch. 158; 1821, ch. 130; 1852, ch. 268, and 1871, ch. 390. In the preamble to the last mentioned Act all the preceding legislation upon the subject is recited, and the Act then, in its preamble, recites:

“Whereas, since the purchase of the burial ground out •of the limits of the city, there have been but few interments, and none of late years, within the burial ground on said property, and no probability of its ever again being used as a place of interment for the 'dead; and,

“Whereas, both of said meetings, the one worshiping in the meeting house on said property, and the other worshiping in the meeting house on Lombard street, •comprising the monthly meeting of said Society of Friends, being desirous of disposing of a portion of said property not covered by the meeting house, for the purpose that out of the proceeds of sale or lease, of giving-education to the children of parents, one or both of whom may be members of the Society of Friends; and,

“Whereas, John O. Turner, William Riley, John Brown and Joseph Matthews, having been appointed by their respective meetings trustees, the legal title to said property is vested in said trustees;” therefore it was enacted that the trustees above named, or their successors, were thereby authorized to sell and convey in *388 fee simple, or lease for ninety-nine years, renewable forever, such part of the property belonging to the monthly meeting of the Society of Friends, in the City of Baltimore, of which they were the trustees, not covered by the meeting house now standing thereon, in such lots, parcels or portions as to them, or their successors, might seem advisable, and to appropriate the proceeds to the purpose in the foregoing preamble mentioned. And all laws inconsistent with the Act were declared repealed.

It was by virtue of authority supposed to be derived from this Act of 1814, that the trustees of the Society of Friends made the deed to the defendant of the 23d of December, 1882. That deed makes special reference-to the deed of Andrew Stigar to the trustees, of the 19th of June, 1113, and recites the fact that the trustees executing the deed were the successors of the trustees named in the deed from Stigar to the trustees in 1113, and also of the trustees named in the Act of 1814, ch. 390; and without which right of succession, of course, there was no right to convey. The deed to the defendant is for part of the lot of ground conveyed and described in the old deed from Stigar to the trustees in 1113, and conveys the estate in fee simple, and describes the part conveyed by metes and bounds, courses and distances, and which description is the same as that set out in the declaration of the plaintiffs. The deed declares in terms that the part conveyed is part of the parcel conveyed hostigar to the trustees, referring to that deed specifically.

The deed to the defendant was accepted by her and was duly recorded, and the defendant entered upon, and has used and occupied the property under the deed; and she still holds possession thereof, and has placed valuable improvements thereon of a nature wholly different from those mentioned in and contemplated by the deed from Stigar to the original trustees. It is because of this diversion from the original purpose of the grant, and the *389 ceasing to use the property for the purposes for which it was originally conveyed to the trustees, that the descendants of Andrew Stigar now claim that they are entitled hy way of reverter to the estate.

In the trial of the case below, the plaintiffs in support of their claim of title and right of entry, offered and read in evidence the two deeds — the one from Andrew, Stigar to Cornthwaite and Hopkins, trustees, and the other from Matthews and others, trustees, to the defendant. The first of these deeds came under consideration of this Court in the recent case of the Second Universalist Society vs. Dugan, 65 Md., 460 . The trustees for the Society of Eriends or Quakers in Baltimore, by authority of the society, and under the supposed power conferred by the Act of 1852, ch. 268, disposed of a part of the ground acquired from Stigar, and which, hy mesne conveyances, became vested in the appellant in that case, and the latter contracted to sell the same to the appellee in that case, and the question was, whether a good, marketable title could be made. And this Court, mainly upon the authority of the previous case of Reed, Howard, et al. vs. Stouffer, 56 Md., 253 , held, that the title was not such as the appellant in that case could sell, as a clear marketable title, by reason of the defeasible nature of the titles conveyed by the two deeds in question there, the one from Stigar to the original trustees of the Quakers, and the other from Deaver to the same trustees for the same purposes as those declared in the deed from Stigar. In that case, this Court said: “ There having been a clear diversion of the property from the uses to which it was devoted by the original deeds, the rights of the heirs-at-law of the original grantors of the property, who, from the great lapse of time, may be supposed to b e dead, to have the land again hy reverter, have arisen and cloud the title of the appellant. It does not appear that the heirs of Stigar or of Deaver have, failed, or that *390 the reversion had escheated to the State before the Act of 1852. ” It was further held that the Act of 1852 could not have the effect of divesting vested rights of individuals, and thus make the alienations pursuant to that Act effectual in conferring a good and indefeasible title.

It is certainly true, that that decision is not to be treated as at all binding upon the defendant in this case, otherwise than as a mere precedent, affording persxrasive reason to the same conclusion. The defendant not being a party to that case, nor to the deed made by the trustees, under the Act of 1852, is in no manner concluded by that decision; and if we saw sufficient reason for coming to a different conclusion in this case, we should not hesitate to give the defendant the benefit of that conclusion. But we perceive no such reason as would justify a different conclusion in this case; and the Act of 1814, ch. 390, equally with the Act of 1852, ch. 268, was wholly incompetent to clothe the trustees with power to make a conveyance which could have the effect of divesting vested rights of property of others than those represented by the trustees.

The plaintiffs in this case claim to represent and to be entitled to recover fourteen undivided eighteenths, the whole into eighteen parts to be divided; and they offered proof in support of their claim; and the defendant offered certain deeds, among-them the deed to herself from the trustees of December 23d, 1882.

The defendant contests the alleged right of the plaintiffs to recover upon several grounds: they will be considered in their order.

1st. That the parcel of ground sued for is not sufficiently identified and located as being part of the lot of ground conveyed by the deed of Andrew Stigar to Oornthwaite and Hopkins, trustees. And this question has been raised on locations made under a warrant of resurvey issued at the instance of the defendant.

*391 It appears that on the application for the warrant of resurvey the plaintiffs objected, because, as they contended, a survey was unnecessary; but the objection was overruled, and the warrant was issued. Under the warrant very extensive and complicated surveys were made, and plats returned, which were produced and offered at the trial, for the alleged purpose of showing that the lot or parcel of land described in the deed of Matthews and others, trustees, to the defendant, (and which description is set out in the plaintiffs’ declaration,) is not within the lines of the deed from Andrew Stigar to Oornthwaite and Hopkins, trustees. To this offer the plaintiffs objected, as they had objected to the issuing of the warrant of resurvey; but their objection was overruled, to which they excepted. And though this exception is taken by the appellees in this case, who obtained the judgment below, by the Public Local Law for Baltimore County, where the case was tried, it is made the duty of this Court to consider and decide the question raised by the exception. Code of Public Local Laws, Art. 3, sec. 22.

In the ruling as stated in this exception there was manifest error; and error, too, that involved the trial of the cause in great and unnecessary perplexity and confusion, as is amply shown by the record and plats produced in this Court.

.The supposed difficulty in the locations that have been made do not arise in the location or identification of the land claimed and described in the declaration, but in regard to the location of the beginning line of the deed from Stigar to the trustees. That beginning, according to the call, is at the end of John Deaver’s N. 13° E. 10 perches line of one acre of ground, and where there was at the time of the deed made, a stone put down, and running from said stone N. 13° E. 12 perches, &c. There has been no effort to show what has become of the *392 stone, or where it stood. But the defendant has. undertaken to arrive at this beginning by locating in a particular way certain lines of two deeds of prior dates, of different parties, and for other land. The first of these deeds is that from Sligh to Young, dated Bov. 8, 1759, and the other is from Sligh to Stigar, dated the 16th of March, 1765, the latter deed calling to bound on the land of the former deed reversely two courses, viz., N. 2° 45' E. 27 perches; N. 58° 30' W., 3¿ perches, (this latter being the first line in the deed from Sligh to Young,) unto the end of the S. 17° E. 22 perches line of a part of Mountaney’s Beck, by conveyance of that date, made by Sligh to John Deaver; thence bounding on that part B. 17° W. 22 perches, to the end of the B. 73° E. 10 perches line of the said parcel of land; thence bounding on that line S. 73° W. 10 perches, and then north by a straight line to the beginning.

The whole apparent difficulty, as made by the location of the defendant, is in the manner of locating the course of the first- line of the deed-from Sligh to Young. That directs the course north, without call for any object at the end of the line, nor is there any call at the end of the second line, which calls to run south; whereas, according to the actual survey made of the ground, having ■regard to all the other calls, courses and distances of the deed, the course of such first line should be south instead of north; and this, according to the testimony of the surveyors who made the survey, is the only mode of location by which to embrace the area, and gratify all the other calls, courses and distances of the deed. The defendant did not attempt to locate and define the area of ground conveyed by the deed of Sligh to Young, but only located the two first lines thereof, without any attempt to close the survey, to test the accuracy of the location of the two lines surveyed. Bow, according to well established principles of location in this State, as *393 well as elsewhere, where there is manifest error in the grant in regard to descriptions of objects, courses or distances, the Court will enquire into the probabilities of mistake, as to the objects or courses called for, and look to the consequeneés which would result from rejecting the one or the other. And in this respect there is no difference between the weight to be ascribed to a call for a boundary, or matter of description thereof, when referred to as the beginning of a tract or as the terminus of one of its lines. An error of description in a survey, says this Court in Wilson vs. Inloes, 6 Gill, 121, 165, 166 , adopted in a patent or grant, manifestly founded in mistake or falsehood, is insufficient to control other calls and expressions inconsistent therewith, and where the assumption of mistake in a single description, harmonizes all the rest of the grant, the Court will make such assumption. lb. And the same principle is fully sanctioned in the case of White vs. Luning, 93 U. S., 514 , where it was held, that as it. was manifest, from actual survey, that there'was error in the course given, in such case, in order to close the survey and maintain the grant, a course that was described as east should he read tuest. It must be borne in mind that the north 58° 30' E. 18 perches line, in the deed to Young is nota call made in the deed from Stigar to the trustees in 1773, nor is that line mentioned in this latter deed, nor is the deed for adjoining land: hut that line is resorted to and attempted to be located by a north course'; and when locating the subsequent deed from Sligh to Stigar, in which that first line in the deed to Young is referred to, as furnishing the course reversely for one of the lines in the later deed, the defendant disregards the course, and treats the course as erroneous in the later deed of Sligh to Stigar. In thus reaching the end of John Denver’s north 73° E. 10 perches line of the one acre of ground convéyed to John Denver, referred to in *394 the deed from Stigar to the trustees, as the beginning of the lines of that deed, according to the defendant’s location, the result would he to throw the lines of the lot conveyed by Stigar to the trustees some twenty perches further north than they'really are; and thus show that the ground in question is not, by what is denominated legal locations, embraced in the lot conveyed by Stigar to the trustees.

We have thus fully stated the principal question made on the locations, and which was much discussed by counsel at the bar; but we are at a loss to perceive in what respect the locations that have been made are material or necessary to the fair trial of this case. This is in no sense a case of disputed boundary or of a divisional line of the land claimed, as contemplated by the statute law of this State.

Prior to the Act of 1852, ch. 177, our system of location of controverted land titles had become exceedingly artificial and technical, and in many cases not only produced delay and embarrassment, attended with onerous costs in preparing cases for trial, but often offered the means of defeating the efforts to attain justice. To remedy this evil in our practice and procedure, the Legislature-, by the Act just referred to, and the subsequent Acts of 1872, ch. 346, and 1882, ch. 372, now embodied in the Code, adopted provisions with a view of simplifying the former practice of location, and of restricting the occasions when warrants of resurvey should issue.

By section 77 of Art. 75 of the Oode, it is provided: icNo warrant of resurvey shall 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 said action; nor shall any issue in other actions, unless there is a dispute about the location of the lands, for the injury of which damages are claimed; or unless the Court shall be satisfied that plats are necessary for illus *395 tration.” In the next section of the same Article it is provided: “Tn any action where the parties hold or claim under the same title the lands in dispute, no warrant of resurvey shall 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.” The statute then provides that the party upon whose application a warrant of resurvey shall issue in any action, shall first make the location of his claim and pretension, and such other location as he may think necessary to bring the cause fairly to trial. And in the following section it is provided that if either party shall make any surveys or locations which the Court may deem .unnecessary, such party may he required to pay the cost thereof. ■

From these provisions of the Code, it is very clear that it is incumbent upon the party applying for a warrant of resurvey to furnish evidence satisfactory to the Court of the fact that there is a bona fide dispute about the location of the property claimed, or the divisional line thereof, and that the Court ought not to grant the warrant of resurvey unless such satisfactory evidence he furnished. And if the warrant be issued, in the execution thereof, it is incumbent upon the party upon whose application it is issued, first to make location of his claim and pretension, and such other location as may he deemed necessary to a fair trial of the cause, before the opposite party can be required to proceed. Here, in the nature of the case, there could he no necessity for the issue of the warrant or the surveys thereunder. The description of the land sued for is identical with that claimed by the defendant under the deed to her from the trustees, and which she locates, and about the location of which there is no conflict or dispute whatever. That the land embraced by the deed to her from the trustees is pari of the land conveyed by the deed of Stigar to Oornth *396 waite and Hopkins in 1113, is a fact expressly stated on the face of the deed under which she holds, and in regard to which there is no question or dispute as to the location of any divisional line, between the two parts. Both parties derive their claim of title from and through one common source, and hence there is no necessity or requirement of tracing the title hack of that of Andrew Stigar at the date of the deed from him to the trustees. There is no proof of any paramount title in the defendant; and as the holding of the latter is under and by virtue of the deed from the trustees of the Quakers, they deriving title under the deed from Stigar, and the location of the deed to the defendant being undisputed, we can perceive no reason or propriety for the use of locations as means to effect a fair trial; the whole and only question being who had the better title to the lot described in the deed to the defendant. On the contrary, such locations as have been made were well calculated to confuse the jury. We think they were immaterial to the fair trial of the cáse, and should have been rejected. They simply raised collateral and immaterial issues.

2dly. It is next contended that the estate by reverter sued for never vested in the heirs of Andrew Stigar, the original grantor, but that the right of entry for such estate is outstanding in some third party — the same having been transferred, as contended, by certain insolvent proceedings had for the relief of Andrew Stigar in his life-time.

The supposed foundation for this contention is afforded by the Act of Assembly of 1188, ch. 11, passed for the relief of Andrew Stigar and others, who were then confined in jail for debt; and by the Act the parties were declared to he entitled to the relief prayed by complying with the terms and provisions prescribed by the preceding insolvent debtor's Act of 1114, ch. 28. By the terms of the Act, of 1114, it was provided “ that all the *397 real and personal estate of such prisoner, either in possession, reversion, remainder, or in trust for him or her, or in or unto which he or she has any claim or interest whatever, or which in any ■manner, may, can, or might be subjected to the payment or satisfaction of creditors, and also all causes of action whatever, &c., shall be vested in the sheriff,” as assignee; and the sheriff was then empowered and required to proceed to “sell and convey the lands, tenements and hereditaments for such estate, use, interest, right or title as aforesaid.”

The first question naturally suggested is, whether the provisions of this Act of 1774, ch. 28, contemplated and embraced a prospective uncertain estate by reverter, such as that which has subsequently accrued under the terms of the deed from Stigar to the trustees? And this question makes it necessary to enquire into and define the nature of that estate. And in doing this we cannot do better than by resorting to approved text-writers for the définition given of the estate.

The deed from Stigar to the trustees, as we have already seen, conveyed the estate in fee, but for a special and particular use and purpose. This Blackstone (Bk. 2, p. 109) defines as a base or qualified fee, and which must determine whenever the qualification annexed to it is at an end. This he illustrates by an example: “As, in the case of a grant to A. and his heirs, tenants of the Manor of Dale;in this instance, whenever the heirs of A. cease to be tenants of that manor, the grant is entirely defeated.” This estate is afee, says the author, “because by possibility it may endure forever in a man and his heirs; yet as that duration depends upon the concurrence of collateral circumstances, which qualify and debase the purity of the donation, it is therefore a qualified or base fee.”

And so Chancellor Kent, in his Commentaries (vol. 4, p. 9,) gives the same definition of a base or qualified *398 fee. He treats the subject under the head of qualified, base or determinable fee. Within the definition stated, the author says, “the proprietor of a qualified fee has the same rights and privileges over the estate as if he were a tenant in fee simple; all the estate is in the feoffee or grantee, notwithstanding the qualification, and no remainder can he limited over, nor any reversion expectant thereon, other than the possibility of a reverter when the estate determines, or the qualification ceases.” And to the same effect is Preston on Estates, vol. 1, pp. 431, 481.

It is clear therefore that after a conveyance of a base or qualified fee, as in this case, the grantor retains no such reversionary interest as will give him any control of or right to interfere with the land granted. All that remains in him is the mere possibility of reverter. And whether that mere possibility of reverter to Andrew Stigar or his heirs was such an estate or interest in reversion, remainder or trust, or in which he had any such claim or interest as might have been subjected to the payment of his debts, under the terms of the Act of 1174, ch. 28, would seem, upon principle, to he a question of great doubt. Looking to the manner in which the grantees, and subsequent Legislatures, • have regarded and dealt with the estate, it may well be presumed that neither the assignee of Stigar, nor those represented by such assignee, ever regarded such mere possibility of reverter as constituting any part of the available assets of the insolvent debtor. Dor while the real estate of the insolvent appears to have been sold and conveyed by the assignee, as required by the statute, there does not appear the slightest trace of any attempt to sell or deal with this mere possibility of reverter, in any manner or form whatever. It is clear the assignee took no beneficial interest in the estate; and if he had dealt with this possible reverter, and had sold it as part of the estate of the *399 insolvent, a deed of conveyance would have been necessary, and, under the law, it would have been necessary to Tecord that deed; and such deed would be the bnly evidence of the transfer of title to a purchaser. But no such deed is found or produced, and no one has been designated as having acquired such title. And from the great lapse of time, now more than a century, the trust under the insolvent Act must be presumed to have been long since closed, and this mere right of possibility of reverter left in the original grantor. That such presumption ought to be made is clearly established by decided cases. Syester, Trustee of Cushwa vs. Brewer, et al., 27 Md., 289 ; Kip, et al. vs. Hirsh, 103 N. Y., 565 . The defendant having set up this supposed outstanding title or right of entry as a defence, it is incumbent trpon her to establish the existence of such outstanding title or right of entry, by clear and definite evidence. As has been said by this Court, it is not incumbent on the plaintiff to negative the existence of such outstanding title, but it is the duty of the defendant to make its existence clear and certain, in order to make it available as a defence. Lannay’s Lessees vs. Wilson, 30 Md., 546 ; Greenleaf's Lessees vs. Birth, 6 Pet., 302 . In the last case mentioned, that reported in 6 Pet., 302 , the defence was there as it is here, that the title was divested and outstanding, by virtue of an insolvent proceeding had under the Act of this State of 1798, ch. 64, respecting insolvent debtors; hut because the deed of assignment was not duly recorded, as required by the laws of this State, it was held that the deed was a nullity, and that the title was not divested out of the insolvent, (Greenleaf); and therefore that there was error in admitting the proceedings under the insolvent laws, and in instructing the jury that the proceedings showed a legal title out of the plaintiff, (Greenleaf,) and precluded a recovery in the suit. It is clear, therefore, that the insolvent *400 proceedings relied ón, under the Act of 1788, ch. 17, furnished. no legal ground of defence, and that the Court below was entirely correct in rejecting the'eleventh and twelfth prayers of the defendant.

3dly. We are next presented with the contention by the defendant, that though it may he that the ground in controversy is part of the lot conveyed by Stigar to the trustees in 1773, and that the insolvent proceedings under the Act of 1788, ch. 17, did not operate to divest Stigar of the piossibility of reverter under his deed to the trustees, yet, by the operation of the Declaration oH Rights of this State, adopted in 1776, the deed hv Stigar to the trustees was nullified, and the. trustees of the Quakers thenceforth held the ground adversely to Stigar and his heirs, and therefore the heirs of Stigar have lost their right of entry for a diversion- of the use of the property granted by the deed of 1773.

There is certainly no foundation for this contention. In the first place, the quantity of land conveyed by the deed of Stigar to the trustees in 1773, was only 102-J- square perches of land; and this deed was first in point of time that was made to the Quakers, according to the recitals of title as made in the deed of Hopkins and others, trustees, to Isaac Tyson and others, trustees, dated the fourth of April, 1880. And by the provision of the Declaration of Rights, there was an express exception made from the general declaration, that all gifts, sales or devises of land, for the use of any religious sect or denomination, should be void, without the leave of the* Legislature, of “any sale, gift, lease or devise of any quantity of land not exceeding two acres, for a church, meeting or other house of worship, and for a burying ground, which shall be improved, enjoyed or used, only for such purpose; or such sale, gift, lease or devise, shall be void.” There is no suggestion made, or proof to show, that the Quakers did not improve and use the *401 premises conveyed, for the purposes specified in the deed. But if there had been delay or omission in that respect, the Act of 1793, ch. 20, would seem to be ample, by fair construction, to cure the omission or eifect of delay.

But supposing that not to be so, the deed of Stigar to the trustees was made before the adoption of the Declaration of Rights, and when there was no prohibition as to sales, gifts or devises for the use of religious sects or denominations; and unless the terms of the Declaration of Rights be given a retroactive operation, they can have no application to the deed of Stigar to the trustees, made in 1773.

The terms in the clause of the Declaration of Rights were certainly very general and comprehensive, and a literal reading of them would not confine their operation to the then future; but a construction that would divest vested rights ought not to be adopted in any case, except upon the most imperative language; and the rule is too well established to admit of question, that a retroactive operation of the language of constitutions or statutes, when vested rights may be impaired, will always be avoided if possible. This is well illustrated by cases occurring immediately after the enactment of the Statute of Frauds. The language of that Statute is, that no. action shall be brought to charge any person on any agreement made in consideration of marriage, unless the agreement be in writing; and it was held not to apply to an agreement which had been made before the statute was passed. Gilmore vs. Shuter, 2 Lev., 227; Ash vs. Abdy, 3 Swanst., 664. And so in regard to the Mortmain Act, on terms even stronger than those of the Statute of Frauds, in their application to past devises, it was held not to apply to a devise made before the Act was passed. Atty-Genl. vs. Lloyd, et al., 3 Atk., 551. We think it clear, therefore,” that the clause in the Declaration of Rights has no. application to the deed from Stigar to the *402 trustees made in 1113; and consequently there is an unbroken privity of estate between the defendant and the grantor in that deed. And that being the case, and the defendant tracing her title through the trustees of the Quakers, as derived by them from Andrew Stigar, the recitals in the deed under which she entered and holds possession of the land are binding upon her; and those recitals show how and under whom she claims.' It is not necessary in this case to hold that these recitals have the effect of a technical estoppel operating upon the estate, but they are solemn admissions furnished by the muniments of title under which the defendant entered and holds possession of the property. In other words, they point to the source, and display the power and authority under which the title was conveyed 'to the defendant. The cases upon this subject are fully collected, and the doctrine well stated, in 3 Washb. on R. P., pp. 93 to 100 inclusive. The deed by the trustees to the defendant, having been fully authorized to be made by the Act of 1814, ch. 390, referred to in the deed, was valid so far as the grantors were concerned, and they were concluded thereby; and the defendant having accepted the deed, entered into possession, and is still holding under that deed, without the slightest ground for a pretence of having acquired a paramount title, she is not at liberty to deny the validity of the title conveyed by the deed. Where both parties assert title from a common grantor, and no other source, neither can deny that such grantor had a valid title when he executed the original conveyance under which both parties claim. The grantee cannot enter and hold under a deed, and at the same time repudiate the title thereby conveyed. Cowell vs. Springs Co., 100 U. S., 55, 61 ; Robertson vs. Pickrell, 109 U. S., 608, 615 . It follows that the Court below committed no error in refusing to grant the first, sixth, seventh, eighth, ninth, and tenth prayers offered by the defend *403 ant. And while the interest in reverter was a mere possibility, non-claim on the part of the heirs of Andrew Stigar in no way operated to their prejudice; and it was ■onlyafter the deed made, and actual diversion of'theuse of the property, in 1882, that the estate by way of reverter accrued, and the right of entry became perfect. No actual entry upon the premises, or demand of possession thereof, before action brought, was necessary. The bringing of the suit for the property by the proper parties is all that was required by way of demand. Gwynn vs. Jones, 2 G. & J., 173, 183 ; Ruch vs. Rock Island, 97 U. S., 693, 696 .

4th. We are next brought to the question raised by the defendant, that the plaintiffs have not proven themselves to be heirs-at-law of Andrew Stigar, and entitled to the estate by reverter, according to law and the ■established rules of evidence.

There was evidence certainly tending to prove the descent of the plaintiffs from Andrew. Stigar, deceased, ■and that they were heirs entitled to claim. But whether the proposition was putto the jury in such form •as would properly guide them in the inquiry, is another question. The jury were instructed by the plaintiffs’ first prayer that if they found the plaintiffs to be descendants and heirs-at-law of Andrew Stigar,' and that said Stigar made the deed of 1773, etc., then the land reverted to the heirs-at-law of Andrew Stigar, and the plaintiffs were entitled to recover such undivided interests as the jury might find they represented as heirs-at-law.

This instruction was greatly calculated to mislead the jury. Descendants might not be heirs-at-law capable of making entry; and the jury might infer that any descendants were heirs. Of the plaintiffs• claiming here, some are of the third, fourth and fifth generations. Who were heirs entitled to recover was strictly a question of *404 law to be determined by the Court ; and the facts only upon which their respective claims rested should have been submitted to the jury. The principle is, that the plaintiff in the action of ejectment, when suing as heir-at-law, must prove his descent from the ancestor from whom he claims, and must show that all the intermediate heirs are dead without issue. The case of Sprigg vs. Moale, 28 Md., 497 , was a case founded upon collateral descent, but the general principle there stated applies in this case. The plaintiffs must remove every possibility of title in another person, in the line of descent before he can recover; no presumption being’ admitted against the person in possession. “In order to show the death of all nearer heirs, it is necessary to negative the coming into existence of those who would be such. That without the establishment of the non-existence of issue as a distinct species of fact from that of death, the proof of heirship would be defective, will thus appear: If A. be a nearer heir than the claimant, and it be proved that he died, having had two children, B. and 0., and the deaths of these children be also proved, the claimant is not entitled to succeed if issue of either B. or 0., or if other issue of A. be extant. Evidence may be adduced of the deaths of all the known members of senior branches through successive generations, and still the task will follow of satisfying those who are to decide, that no issue exists of the lowest or latest descendants, added to that of establishing of each individual member that he had no other children than those who have been accounted for.” Subbaclc, Law of Succession, 199.

We think the first prayer of the plaintiff's should not have been granted in the form in which it was offered; and we also think the fourth prayer of the plaintiff's was too general, and was calculated to mislead, and should therefore have been rejected.

The motions of the defendant to strike out the testimony of witnesses Shuter and McLean, were properly *405 overruled. And so the motion by the defendant to strike out the name of Ellis Skillman, one of the plaintiffs, upon the ground as asserted, that he had not authorized the use of his name in bringing the suit, was properly overruled. Unless there had been fraud or imposition practiced, or the party himself had made objection to the use of his name, the Ckmrt will not assume that the attorney bringing the suit had acted without authority. It lias long been the established practice in this State, as it has been elsewhere, that when an attorney brings a suit or takes upon himself to appear for a party, the Court will not look further, hut act upon the presumption that the attorney has authority for his action. Jackson vs. Stewart, 6 John., 34 .

(Decided 15th March, 1892.)

With respect to the rulings excepted to in the third, fourth and fifth bills of exception by the defendant, on the theorjr upon which the case was tried below as to locations, we think there was error. It was certainly not competent or allowable to a surveyor to assume the function of the Court,' and to give an opinion as to how a deed should he construed, with a view to a proper location of it, or what was the proper location of a particular deed or grant, having reference to other deeds in the case. That was a question of law for the Court.

Upon review of the whole case it follows from what we have said, that the judgment must he reversed, and a new trial awarded.

Judgment reversed, and new trial awarded.