
    Ford, Terretenant of Preston, vs. Gwinn's Adm'r.
    Appeal from Harford County Court. This Was a writ of scire facias sued out on a judgment rendered in that court in August 179?, in favour of the appellee’s intestate against Preston. The defendant, (now appellant,) pleaded, two pleas — l. That Preston was not seized of the lands of which he the defendant was returned tenant, &c. 2* That the plaintiff ought not to have execution of the lands, &c. because before suing out the scire, facias a ca. sa. issued against Preston, who was arrested and brought into court, and committed to the custody of Robert Jlmos, junior, the then sheriff. That Preston escaped from the custody of the said sheriff. That the said Gwinn brought suits on the said .Amos’s bond as sheriff, for the said escape. That in March 1800, a judgment Was rendered oh the said bond against Amos, and his securities, for damages and costs sustained by reason of the said escape, &c. Issue was joined to the first plea, and a general demurrer, and joinder in dermlrrer, to the second. The county court gave judgment on the demurrer for the plaimiff.
    
      J ti obtained a judgment against 24 l\ on which a scire facias was issued against his terre-tenaut, who pleaded — t That 15 P was not seized of the land of which he was returned tenant. 2, That before the Xcire facias was issued a ca sa bud. issued against B ,who was taken in execution, and committed to R A the sheriff; that B P escaped, and suits were broúght bv J <3* on R A’s bond as sheriff, for the escape, aud judgments' obtained against & A, and his sureties, A demunrr to the last plea was ruled (rood.
    To show that B P was in 1797* at the tíme when a judgment was rendered against him. seized of the land of which- J F was-, on a scire facias issued <m the judgment, returned tenant, evidence was given of a devise of the land to B P in 1766. bv his faiher ,f p, who had been, in possession a considera» ble time before his death; a conveyance by ft P to ,F L in May 1797; a conveyance by ,T I» to .V K m June 1799; and a eonveynnee from -T ÍI to .F F, the terretenant, in 1801 — fold, that such evidence* was npt sufficient to prove a seisin iu B F in the land in question, at the tipie the judgment was obtained against him1.
    
      In the trial of the issue in fact, the plaintiff read in evidence the will of James Preston, dated the 17th of September 17G6, devising to his son. Jumes Preston’s son Jhnjamin, a tract of land called Plumb Point, and part of Hog Neck, and Robinson's Chance, &c. to him, his heirs and assigns, for ever. Also a deed from Benjamin Preston to Josiith Lee, dated the 17th of May 1799, for the lands called part of Hog Neck, part of Plumb Point, and part of Mate's Addition. Also a deed from Josiah LfC in James Lytle, dated the 19th June 1799, for the said lands. Also a deed from James Lytle to Joseph Ford, dated t'ue 18fh August 1801, for the said lands. And also gave evidence, that the lands by the will aforesaid devised to Benjamin Preston, were by him sold to said T.ee, and that the same lands were purchased by the said Ford from the said Lytle. That the said lands were in possession of James Preston, the devisor, a considerable time before his death, and are the same of which the defendant was returned terretenantj and that Benjamin Preston, the devisee, was the person against whom the original judgment was obtained. The defendant then objected to this proof as insufficient: in law to support the issue on the part of the plaintiff, and prayed the court so to direct the jury. But the Court, [Nicholson, Ch. .T.j was of opinion, and so directed the jury, that the proof was evidence of •the seisin of Benjamin Preston, unless the defendant showed that he held the lands in question under some other title; that after the, plaintiff had shown that the defendant derived his title from Preston, the court would not compel the plaintiff to show Preston's title, which the defendant was estopped from questioning, unless he the defendant could show that he held by some other title. The defendant excepted; and the verdict and judgment being against him, he appealed to this court.
    The cause was argued before Chase, Ch. J, and Busiiasas, Eahle, and JoKítsoíí, J,
    
      
      tlaÍJ, ■ for the Appellant,
    referred to Saunders, terrt. of Duley vs. Webster, (ante 432.)
    
      ¿Montgomery, (Attorney Uenerál.) for the Appellee,
    io»' sisted that Saunders vs. Webster was distinguishable front fee preseftt case. That the ju.dgme.nt of the Court below ought to be affirmed, although this coUrt should differ from the court below in the reasons on which the judgment was formed; and although the court below determined that the plaintiff ought to recover, because the defendant was es-topped from controverting the title 6f the person against whouit the judgment was rendered, inasmuch ás he appeared to claim under him; yet if thére éxisted sufficient evidence to presume a grant, then there was no need to re* sort to thé doctritie of estoppel, inasmuch as (he seisin would then be proved» There was presented to the court a case of possession for more than 44 years apparent title, derived through a will and several deeds, a contest arising between the persons, all claiming under the same title, in which it is néw contended that one of them, in a contest about the land, must produce the gra!nt for the land to the person uiider whom all the parties claim. It would seem that the' gra'nt ought to be' presumed, and this court gave such a decision in Bradford's Lessee vs. M‘Comas, (ante 444,) which cannot be distinguished from the present ease, where the parties claim' under J. Prestan, and the seisin in him ought to be presumed; but ás that cannot exist without the grant, it should be presumed the time is longer, the conveyances more numerous, and the relative situation of the parties the same.
   The Court

affirmed the judgment of the County Court on the demurrer , but dissented from the opinion of that as expressed in the bill of exceptions.

JUDGMENT REVERSED, AND PROCED'SND0 AWARDED, 
      
       See Freeman vs. Ruston, 4 Dall. Rep. 214.
     