Deery v. Cray - 77 U.S. 263 (1869)
U.S. Supreme Court
Deery v. Cray, 77 U.S. 10 Wall. 263 263 (1869)
Deery v. Cray
77 U.S. 263
1. A deed which referred to a plat of the land for one of the lines of the boundary, may be read in evidence to the jury without the production of the plat, subject to an identification of such line by competent evidence during the progress of the trial.
2. A deed which refers to such a plat for one line, or which authorizes the line to be run by a certain person according to such a plat, is not void for uncertainty on its face.
3. In case of such a deed made a great many years ago, though the plat is not produced, it is competent to show by other proof, written or parol, or both, that such a line existed and where it was located.
4. This may be shown by long possession on each side of the line evidenced by a fence, by the parol declarations of the parties holding under the deed on each side of the line, or by any facts which clearly establish the existence of such a line and its location.
5. The erroneous instruction of the court in regard to the effect of a deed of mortgage on the plaintiff's title, is no ground for reversal, when this
Court can see that the plaintiff had no title on which the jury could have found in his favor.
Eliza Deery brought ejectment October 12, 1863, in the court just mentioned to recover from one Cray an undivided fifth part of the southern half of Kent Fort Manor, an
ancient manor in Kent County, Maryland. This manor was an irregularly shaped piece of land, whose longest direction is mainly north and south, surrounded entirely by water except on the northern line, which crosses a rather narrow
neck of land. The diagram illustrates roughly, and without various indentations from the waters which run up into the body of the manor, its outline forms and will make obvious the fact -- a fact necessarily belonging to the division of a piece of land thus shaped -- that if the manor were divided into two nearly equal parts by a line running from the western water boundary to the eastern, all of the southern half would be surrounded by water, except the short line separating it on the north from the other half.
The plaintiff having established on the trial a title to the whole of the manor in Samuel Lloyd Chew, one of the ancestors, further traced the title by descent to Lowman Chew, who died in 1862 childless and intestate, leaving five heirs of whom she is one. The defendants, on the other hand, introduced conveyances from Samuel A. Chew, the father of Lowman Chew, for a large part of the northern half of the manor, and, it was conceded that the plaintiff had no controversy with the tenant in possession of the remainder of the northern half not conveyed by Samuel A. Chew.
The controversy was thus limited to the southern half, of which, as already said, the plaintiff claimed an undivided fifth part, and to which she had shown a prima facie title.
To defeat this, the defendants introduced a deed dated October 22, 1787, from the said Samuel Lloyd Chew (from whom the plaintiff derived title) to his mother, Elizabeth Chew, which was asserted to be a conveyance of the fee of this south half of the manor.
The description of this land in this deed was in these words:
"All that moiety or half part of a tract of land called Kent Fort Manor, lying and being in Kent Island, in Queen Anne's County, being all that part of said tract of land which lies to the south westward of a line beginning on Northwest Creek and running an easterly course, agreeable to the plat of said land made by William Brown, of Anne Arundel County, in such manner as to comprehend one-half of the number of acres of the whole tract, the said line to be run and ascertained under the direction of John Thomas, Esquire, of Anne Arundel County. "
The plaintiff -- objecting to this deed that the description of the land conveyed by it was so uncertain as to render the deed void -- excepted to the introduction of it unless the plat which the deed referred to as made by Brown was produced and its lines shown. The court, however, permitted the deed to be read, subject to the right of the plaintiff to exclude the same hereafter, if upon the closing of the testimony it should not have been legally and sufficiently applied by the defendants to the maintenance of the issue on their part.
The defendant then, in order to apply it, or in other words, show that this northern line had an existence, so as to enable one to determine what was the south half of the manor, introduced certain evidence, as follows:
A map of the Kent Fort Manor, which was admitted to be part of a record of a chancery suit in Maryland, filed in 1802, and the location on the said map of Susanna Tait's moiety, admitted to be a correct location of the share of said manor assigned in said court to Susanna Tait, as sister, and one of the heirs of Arthur Bryan, in the partition of his real estate. This map had figures and lines on it showing a division of the manor into two equal parts of 1002 1/2 acres each, and that the division was made by a straight line from a point on Northwest Creek, projecting far into the body of the tract, in a course a little south of east, to the eastern shore of the island.
Deeds showing conveyances of Elizabeth Chew (grantee in the deed whose admission in evidence we have already stated was objected to) to one T. M. Foreman, from Foreman to Philip Barton Key, and from Key to Arthur Bryan, of the same land, describing it either as the land on the said manor, purchased by Elizabeth Chew of her son Samuel, or as Elizabeth Chew's half part of the manor.
Proof by a witness over seventy years old that he knew Robert Tait, the husband of Susanna, and Kent Fort Manor, since he was eleven years old. That a fence then divided the north and south part of the manor, and said Tait held up to that fence. That after Samuel A. Chew, the father of
Lowman Chew, came to live on the north half of the manor, he and Robert Tait changed the location of the fence, and that both recognized it as the boundary between them. And there was other testimony showing the holding under these parties by this line from that day to this.
Upon the deed thus admitted and the evidence just mentioned, the court below charged (the plaintiff excepting) that the defendants were entitled to the verdict if they should find that during the life of Samuel Lloyd Chew, or after his son Samuel A. Chew acquired the interest in the tract, and before his death, and more than twenty years before suit brought, a division line or fence or boundary between the upper and lower moieties of the tract was established by the common consent, or with the common acquiescence of the said Samuel Lloyd, or Samuel A., and Elizabeth Chew, or those claiming under her, and that the said line, fence, or boundary was so established and recognized by and between the parties as and for the upper line of the lands intended to be conveyed to the said Elizabeth, by the said Samuel Lloyd, and had thenceforward and for more than twenty years before suit brought so continued to be, and that possession had ever since been continuously held by the parties possessing and claiming title on both sides of the line in recognition of and in conformity with said decision.
The introduction of the deed of 1787 from Samuel Lloyd Chew to Elizabeth Chew, and these instructions of the court on the effect of it and the title under it, made the principal point in the case, the plaintiff's position being that the deed ought not to have been admitted and that the charge was wrong.
And there was a minor matter. The defendants gave in evidence a deed of mortgage from the plaintiff Eliza Deery to one Scott of
"all her undivided interest in a tract of land lying in Queen Anne's County, and containing six hundred acres, more or less, being the same land and all the lands of which Lowman Chew died seised, the said Eliza being one of the heirs of said Chew."
This mortgage was executed February
7th, 1863 -- that is to say, ten months before the institution of this suit, and contained no provision for possession by the mortgagor till default. The instrument being thus in evidence, the defendant asked the court to charge that by its execution, the plaintiff had parted with her legal title to the real estate on Kent Island, of which Lowman Chew died seised prior to the institution of the suit, and could not recover, which charge the court gave, the plaintiff excepting.
Verdict and judgment having gone for the defendant, the other side brought the case here.