Carroll v. Lessee of Carroll
57 U.S. 275 (1853)

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U.S. Supreme Court

Carroll v. Lessee of Carroll, 57 U.S. 16 How. 275 275 (1853)

Carroll v. Lessee of Carroll

57 U.S. (16 How.) 275

Syllabus

By the common law of Maryland, lands of which the testator was not seized at the time of making his will could not be devised thereby.

In 1850, the legislature passed the following act:

"Sec. 1. Be it enacted &c., that every last will and testament executed in due form of law, after the first day of June next, shall be construed with reference to the real estate and personal estate comprised in it, to speak and take effect as if it had been executed on the day of the death of the testator or testatrix, unless a contrary intention shall appear by the will."

"Sec. 2. That the provisions of this act shall not apply to any will executed before the passage of this act by any person who may die before the first day of June next unless in such will the intention of the testator or testatrix shall appear that the real and personal estate which he or she may own at his or her death should thereby pass."

"Sec. 3. That this law shall take effect on the first clay of June next."

In 1837, Michael B. Carroll duly executed his will, making his wife Jane, his residuary legatee and devisee. After the execution of his will, he acquired the lands in controversy, and died in August, 1851.

The lands which he purchased in 1842 did not pass to the devisee, but descended to the heirs.

The cases upon the subject examined.

A distinction is to be made between cases which decide the precise point in question and those in which an opinion is expressed upon it incidentally.

Evidence that the name of the tract of land, conveyed by a deed, was the same with the name given in an early patent, that it had long been held by the persons under whom the party claimed, and that there was no proof of any adverse claim was sufficient to warrant the jury in finding that the land mentioned in the deed was the same with that mentioned in the patent.

The lessee of the plaintiffs having claimed in the declaration a term of fifteen years in three undivided fourth parts of the land, and the judgment being that the lessee do recover his term aforesaid yet to come and unexpired, this judgment was correct.

This was an action of ejectment brought by the defendants in error, as heirs of Michael B. Carroll, to recover three undivided fourth parts of all of three several tracts or parcels of plantable land called, for the first of said three tracts, "Black Walnut Thicket" and "Content," contiguous to each other, lying and being in Prince George's County, in the State of Maryland, containing seven hundred acres, more or less, and called, for the second of said three tracts, "Addition to Brookfield," situate, lying, and being in Prince George's County aforesaid, containing one hundred and fifty acres, more or less, and called, for the third of said three tracts, "Lot No. 1," being part of a tract of land called Brookfield, containing four hundred and fifty acres, more or less.

Page 57 U. S. 276

Carroll made a will in 1837 in which, after some legacies, he devised all the rest of his property, real, personal, and mixed, to his wife, Jane M. Carroll.

In 1850, the Legislature of Maryland passed a law, which is recited in the syllabus at the head of this report and also in the opinion of the Court.

In August, 1851, Carroll died, upon which the present action of ejectment was brought by three of the four branches of his heirs to recover three undivided fourth parts of the lands mentioned in the beginning of this report. The claim to the two latter tracts did not appear to have been prosecuted, but the controversy turned exclusively upon the title of the plaintiffs below to "Black Walnut Thicket" and "Content."

Upon the trial in the circuit court, the plaintiffs offered in evidence to support their title:

1. The patent for "Black Walnut Thicket," dated at the City of St. Mary's on the 27th September, 1680, and the patent for "Content," dated on the 10th of August, 1753.

2. A deed from W. B. Brooks and others, to Michael B. Carroll, dated on the 29th of January, 1842, which purported to convey all those tracts, parts of tracts, or parcels of land lying and being in Prince George's County, called "Black Walnut Thicket" and "Content," contiguous to each other, and contained within the following metes and bounds, courses and distances, namely ___ (these were not identical with those of either patent).

3. The plaintiff then proved possession by Carroll of the parcel of land described in the deed to him, from the date of that deed until his decease, and also proved possession of the same by those under whom Carroll claimed from 1809.

The defendant, by her counsel, then prayed the court to instruct the jury

"That there was no sufficient evidence in the cause from which the jury could properly find that the land embraced in said deed from said Walter B. Brooks and others to said Michael B. Carroll, offered in evidence by the plaintiffs, is the same land or parcel of the same lands embraced in the said patents or in either of said patents. But the court refused said prayer, being of opinion that there was evidence in the cause proper to be left to the jury to determine whether the said land mentioned in the deed was the same or part of the same granted by the said patents. To which opinion of the court, and to the refusal of said court to grant the aforesaid prayer of the said defendant, the said defendant, by her counsel, prayed leave to except and that the court would sign and seal this first bill of exceptions according to the form of the statute in such case

Page 57 U. S. 277

made and provided, and which is accordingly done this fourth day of December, 1852."

"R. B. TANEY [SEAL]"

"JOHN GLENN [SEAL]"

"Defendant's second exception. The defendant then offered in evidence the last will and testament of Michael B. Carroll, dated on the 10th of September, 1837, by which, as has been before mentioned, he made his wife, Jane, his residuary devisee. Thereupon, upon the prayer of the plaintiff, the court gave the following instruction to the jury."

"If the jury find that the plaintiff and those under whom he claims have possessed and held the land called Black Walnut Thicket and Content, described in the deed from Walter B. Brooke and others to Michael B. Carroll, dated ___ 29, 1842, and that the said Michael B. Carroll died seized thereof August 30, 1851, and the lessors of the plaintiffs are his heirs at law, and that the said land is the same, or part of the same land mentioned in the patents for Black Walnut Thicket and Content, offered in evidence by the plaintiffs, then the plaintiffs are entitled to recover the land mentioned in the said deed, and that the same did not pass to the defendant by the said will of Michael B. Carroll."

"To the giving of which said instruction the defendant, by her counsel, prayed leave to except, and that the court would sign and seal this second bill of exceptions, according to the form of the statute in such case made and provided; and which is accordingly done this fourth day of December, 1852."

"R. B. TANEY [SEAL]"

"JOHN GLENN [SEAL]"

Upon this instruction the jury found the following verdict.

"Verdict. Who being empanelled and sworn to say the truth in the premises, upon their oath do say, the defendant is guilty of the trespass and ejectment in the declaration mentioned upon the tracts of the land therein stated, called Black Walnut Thicket and Content, in manner and form as the said lessee, John Doe, complains against her, and which is contained within the metes and bounds, courses and distances set out and described in the paper hereto annexed, and made for that purpose a part of this verdict, being a deed from Walter B. Brooke, of Prince George's County and State of Maryland, Alexander Middleton and Elizabeth A. Middleton, his wife, of Charles County, and said state, to Michael B. Carroll, dated the 29th January, eighteen hundred and forty-two, and they assess the damages of said John Doe, lessee, by occasion of the trespass and ejectment aforesaid at one dollar, and as to the other trespasses and ejectment

Page 57 U. S. 278

upon the other tracts or parcels of land in said declaration, also mentioned, they find that the said defendant is not guilty."

(Then followed the deed.)

Upon which verdict the court entered the following

"Judgment. Therefore it is considered by the Court here that the said lessee, as aforesaid, do recover against the said Jane M. Carroll his term aforesaid yet to come and unexpired, of and in the said tracts of land called 'Black Walnut Thicket' and 'Content,' with the appurtenances in the district aforesaid, wherein the said Jane M. Carroll is by the jurors above found to be guilty of the trespass and ejectment aforesaid, and the sum of one dollar his damages by the said jurors in manner aforesaid assessed, and also the sum of ___ by the court now here adjudged unto the said lessee for his costs and charges by him about his suit in this behalf expended, and that he have thereof his execution &c. "

Page 57 U. S. 279

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