
    Carroll's Lessee vs. Maydwell, et al.
    
    Appeal from Baltimore County Court. This was an 1 action of ejectment, brought to recover a tract of land ceiled The Addition, otherwise called Haile’s Addition, otherwise called Addition. The defendants, (now appellees,) took defence on warrant, and plots were made. 1, The plaintiff at the trial, gave in evidence, the certificate and patent of The Addition, surveyed on the lOth of January 1701 for, and granted the 10th of October 1704 to Nicholas Haile-, and also the will of Nicholas Haile, the patentee, dated the 27th of February 1729, containing, among others, the following devises:. “Rem. I will to my beloved wife Frances Haile, my now dwelling plantation called part of Merryman’s Lot, and my new plantation called Haile’s Addition, to her and for her use, without molestation, during her natural life; and after her decease to my son Neale Haile, and my daughter Mary Haile. Item. I will to my son Neale Haile my now dwelling plantation, which is called part of Merryman’s Lot, to him and his heirs for ever; also I will that my son Neale Haile, to have part of that tract of land called Haile’s Addition, adjoining to my now dwelling plantation, and to begin at a great stone standing- by the great run of this tract, and to run with a straight line to a bounded black oak standing on the land called Haile’s Addition, to1 my son Neale Haile, and his heirs lawfully begotten, forever; but and if he die without issue lawfully begotten, then all this land to the next-of kin. Item. I also will that my eldest daughter Mary Haile, shall have all. the remainder part of thac tract of land called Haile’s Addition, to her and her heirs of her Ijody lawfully begotten for eyer; but apd if she die without issue lawfully begotten, then that land to the next of kin J.’ He also gave in evidence a deed tripartite, dated the llfh of April 1771, between Neale Haile, the devisee in the :said will, on the one part, and Joseph Ensor of the other part, and William Cooke of the third part, being a deed leading uses for suffering a common recovery for “docking, destroying and extinguishing, all estates tail, and all reversions, remainders, thereupon expectant or depending, of and in 105 acres of land, lately the dwelling plantation of Nicholas Haile, deceased, being pari of a tract or parcel of land called Nerryman's Lot, lying in Baltimore, county; also SO acres of land lying in the same county, being part of a tract or parcel of land called Haile's Addition, joining to the said dwelling plantation of Nicholas Haile, and which were devised to the said Neale Hailehy his father Nicholas Haile-, and for limiting and assuring the same unto and to the use of the said Joseph Ensor, his heirs and assigns,’? &c. “The said recovery to enfure, and the recorerer to stand seized of the premises to the use of tire Bald Joseph Ensor, his heirs and assigns, for ever.” And also a common recovery suffered of the said lands, by Neale Haile to Joseph Ensor, in the provincial court at April term 1771, in pursuance of the above mentioned deed. He also gave in evidence, that the land called Haile's Addition, in the said will, deed, and common recovery mentioned, and the land called The Addition in the said patent mentioned, is the. same land, and that it was and is commonly knotvn by the pame of Haile's Addition. And also gave in evidence the plots in this cause; and that the locations made thereon by him were true. ITe also gave in evidence a deed of indenture from Joseph Ensor, in the common recovery mentioned, to the lessor of the plaintiff, for tire said lands, dated the 27th of June 1771. The defendants then gave in evidence, by consent, the deposition of Benjamin jiong, taken in a former action relative to the lands claimed in this action. This deposition, (taken on the survey in the case of Metryman an.d others against lUaydvjell, and sworn to in open court on the 15th of November 1788,) states, that he the deponent, (aged 71 years,) bought a tract of land called The Forrest, of if. Worthington, of the cjuantity of 200 acres; that William Carter agreed with the deponent for half the said laud, on conditio» that the said Carter paid to Worthington JllO sterling; before the land was made over to the deponent, Carter exchanged his part with Neale Haile for the land that $aid Haile then lived on, with his mother, which is tire land is dispute. That then Caper moved from the place be then lived to the place that he had of Neale Haile, and Neale Haile moved to the place he had of Carter. That he understood from Ilaile that he gave Carter a bond of conveyance (or the said land. That Haile, about 8^ 10 years after the exchange* told the deponent he did ícnow whether h.e would make over the land to Carter, as he thought the land was worth more than the pepalty of the bond. That Carter, a few months before bis death, told tiie deponent he never gave Haile liberty to make over the said land to Joseph Ensor. That the deponent assisted to build the house shown to the sheriff and surveyor, which house Car,ter moved into and lived with Neale Haile’s mother, until he built a house for himself; and that Carter lived at the s.aid plaice in the hard winter, which the deponent thinks was about 1740, and that he never understood but that the said Carter w§s in quiet and peaceable possession, until his death. The defendant also gave in evidence, that Frances Haile, the wife of Nicholas, Haile, the devisor and patentee, in the said will mentioned, was alive apd in possession of the said lands, which are part of the same that were devised to her by the will of Nicholas Haile, during her life, at the time when the said common recovery was suffered, and long after. And that Hillijun Carter, owping' two tracts of land in Baltimore county, called The Forrest or The Forrest Besan eyed, did in the fall, of the year 17S9, exchange ami swap the said lands with Neale Haile, for those parts of iiferryman’s Lot, and The Addition, or Llaile’s Addition, which were devis.ed to him by the will of Nicholas Haile, and that each of the said parties respectively delivered to the other the possession of the lands which, they had thus exchanged, in the latter end of the fall of 17§9, or the beginning of the year 1740. That William, Carter, and his family, lived in the same house with Frunces Ilaile, the devisee for life-under the will oi'Nicholas. Haile, during that winter, and in the spring he built himself a house, on said lapd, and began to clear and cultivate the same, and continued in the undisturbed possession of (he same from that time until about, the year 1778, with the approbation and consent of Frances. Haile, the tenant for life, when he removed away, and Joseph Ensor, Under a contract of purchase from Carter, entered.into poa.session of the place. That Joseph Ensor, if he ever paid any part of the consideration which he was to have paid • to Carter for the said land, altogether failed to pay a eon-' sideral»!e portion of it. That about the time of the death of Joseph Ensor, which happened sometime about the year 1779 or 1780, Carter returned and took possession of thé said land again; and that Carter, and the defendants claiming under him, hate beets in the peaceable possession of the lands, for which this ejectment is brought, front that time till the institution of this suit. The plaintiff then further gave in evidence, the deposition of George Chiles, taken by consent, and admitted in evidence, and all and singular the matters therein ¿obtained, (subject to the same legal exceptions which might be made to it, if the facts were given in evidence by tlife deponent in person,) to prove that Frances Haile did Surrender her life estafe in the said lands to Estíle Hallé-, at or before the time of suffering the said common recovery, and that Joseph Ensor entered into and held possession of the said land, under the said common recovery, by and with the assent of Frances Haile, and did pay to her a valuable consideration for the said surrender and assent; and that the said common recovery ^va^suffered, and the said pos session under it taken and by and with the assent of William Carter, in the sa,id deposition of Benjamin Long mentioned, under whom the defendants claim. This deposition of George Chiles, aged upwards of 74 years, was taken on the 4th of May 1807, and stated, “that he was well acquainted with a parcel of land called The Addition, or Haile's Addition, in Baltimore county, which was part of the dwelling plantation ol Adcholas Haile, deceased, and was by him devised, as this deponent understood, to his son A"eale Baile; and that he was also well acquainted, with the said Neale Haile, and with Frances haile the ■widow of the said Nicholas Haile, deceased, -and with Joseph Emor, iate of Baltimore county, deceased, and IVilliam Carter, also of the said comity, <k ceased, whose daughter lie this deponent married. That he knew the Sract of land id Baltimore counfy called .Berryman's Imf, adjoining the tract called The Addition, or Haile's Addition; and that the dwelling plantation of Nicholas Haile was chiefly on the tract called Merryman's Lot, and included, also a part of the tract called The Addition, or Haile's Addition; and that when he first became acquainted wiih the ¡said lauds, and the said Frances Medie, she lived in a house on Merry man’s Lot, which was then said to have been the dwelling-house of her husband Nicholas Haile. That about 36 years ago he first became acquainted with William Carter, who .then resided oh the said dwelling plantation, and claimed it-as his own under a purchase from Neale halle; and he hath frequently heard Carter say that he had never obtained a conveyance froth Neale Haile, some difference havihg arisen between them respecting a tract of land which he had given to Neale Ilaile, in payment or exchange for the said plantation. That about two years or a year atid a half after, he so became' acquainted with Carter, he married the daughter of Carter, and about two jmars after his marriage* went to - live with tlie said Joseph Ensor, as his overseer. That after living with Ensor in this manner one year, Ensor purchased from Carter the aforesaid dwelling plantation, consisting of part of Merry man’s Lot, and part of The Addition, or Haile’s Addition; immediately after which Carter put Ensor into possession of said plantation, and removed away from it; that ÉnSor thereupon put this deponent oe said plantation as his overseer, with two horses, one cow, and one slave, to cultivate,it. That he does not know tvhat sum Énsor agreed to pay for the said plantation, but perfectly recollects, that at the time of the purchase he paid and delivered to Carter a negro woman slave in part pajment, but does not remember at what price. That about one year, or something less, after he went to live on said plantation as overseer, Ensor being desirous of obtaining- a conveyance of the said land and plantation from Neale Haile, applied to Carter for his consent that such a conveyance should be made, to which Carter consented, observing that Haile'1# deed or conveyance would be as good as' his own; on which Ensor answered, that it would be better. That this deponent was called as a witness to this conversation, which took place at Ensor1 s house. That Ensor at the same time informed Carter that Haile demanded from him á?30 for making the said conveyance, which he thought very hard, as the land had already been Sold to him; to which Carter replied, that he could not help it; and that he Ensor and Haile must settle that matter between them. That soon after this transaction, Neale Haile came to the house of Ensor for the purpose of going with him to Annapolis to make the above mentioned con¡peyance. That Frances Haile, who then resided on the said plantation, and in the house which had been her said husband’s dwelling house, as this deponent always understood, and who was then, as this deponent understood and believes, upwards of 90 years old, went with them to Baliimore-Umn, on their way to Annapolis, for the purpose, as this deponent understood, of making over, before a magistrate, her rigid to the said land and plantation, so as to enable Neale Haile, her son, to convey it to Ensor. That this deponent did not go before the magistrate, but knows that Neale Haile, Ensor and Frances, did go together for the above purpose, as they 3aid; and that this deponent’s wife, who was the granddaughter of Frances, together with several other of her grandchildren, did accompany her. That they went, as this deponent understood, before fFil/iam Aisquith, then a justice of the peace for Baltimore county, and now deceased. That this deponent saw them return, and understood from th<?m that a paper bad been signed by Frances, before the said magistrate, for the above mentioned purpose. That after their return Frances went back to her house; and Ensor end Neale Haile, with this deponent, and several other persons, then proceeded to Annapolis to have the conveyance completed, which however was not done at that time, which, as well as this deponent recollects, was in tlse fall of the year; and that in the spring following, they went again to Annapolis for the same purpose, when the said conveyance was executed, for which Ensor agreed to pay Haile 3S5, Haile having increased his demand from ¡£30 to £35. That while Carter lived on the said plantation, after this deponent became acquainted with him, Prances Haile had a separate part of the .land in her sole occupation, which she usually rented out; and that all the rest of the land was held and occupied by Carter. That when Carter sold to Ensor, and Ensor placed this deponent on the plantation, he took the whole of the land into his possession, and directed this deponent to pay her 35 per annum, to go to mill for- her, to bring and cut her fire-wood, and to render her other services of this nature, as long as she should live, and choose to remain there. That In pursuance of these orders he did, for three years, pay her £5 per annum in necessaries, which he purchased for her use, and did perform for her the said services to the value, as he believes,, oF £10 per annum more. That she always rteceived tine said payments and supplies, of which this deponent kept an account; but never Heard her say, nor mentioned to hei particularly, what they were for; nor does lie know that the said directions were given to him by Ensor in consequence of any agreement with her; and that at or about the end of the said three years, her house was burnt down; on which her son Georgé Haile came and took her away; and after which the said payments, supplies and services, were discontinued, Ensór being then dead. That some, time before the death of Ensor, and after they went to ■Jhmapolis the second time, when the conveyance was made by Neale Haile to Ensor; he heard Carter apply to Ensor for payment of the balance due to him for the said land; on which Ensor asked him how much was dué, and he re* plied £70; and that Ensor then said, that lie could not pay till the fall, biit Would then discharge the whole debt; That after Ensor’s death he remained on the said planta* tion about three or four years, as a tenant, and paid vent to the guardian of Ensor’s sons; and that at the end of this time, Carter came and took possession of the place, alleging that £70 of the purchase money was due to him from Ensor, or his heirs, and that he Would keep the place till it was paid. That he does not recollect the year or precise time at which any of the above mentioned events took place,,further than he hath stated above, And further, that when he, on going to live on the said plantation* as above stated, took possession of the whole of it for Ensor, including that part which liad before been solely occupied by Frances Haile, she made rio objection thereto, nor did she ever afterwards object thereto, but always re - ceived the above mentioned payments and services as her right ” The defendant then prayed the court to direct the jury, that the plaintiff had not made title to the lands in. question. And the Court, ['Nicholson, Ch. J. and Jones, A. J.] did direct the jury, that the common recovery was defective, there being no legal surrender of the life estate, and of course that the plaintiff had not made title, and could not recover in this action. The plaintiff excepted.,
    
      íí H bv bis will in 1729, devised a$ •ibUows, “ítem- I will to mybelpved wife, F, my no.w i •dwelling plantati* 1 on eailed part of» 'APs Lot, ar\d my new plantation called Ü’s Additi• J •on, to her and for die;- use without inolesfaijon, during her natural life; and after lu-r decease to my son H,aml my daughter M “Item, I will to my son II my now dwelling; plantation which 5» cabed part of AVs Lot, to him and his heirs for ever. Also I will that my son H to have part of that tract of land call*, jprt Addition, adjoining; to my flow dwelling plantation, and to begin, at,” fee» ‘to my son H and his heirs, lawfully begotten, for evet; but and if he die without issuelawi'ul begotten, then áll thi< land to the next of kin.’ The remaining part of IPs Addition:- he. devised in tail to Jiis daughter AT. In 1771 a common recovery was suffered by H for docking the estate tail vested in htm in ÍWV ¿etapd H’s Addition by the will ofhis father (NW, anp f'°r limiting- and assume; the same to the tise of .1 $5. P, the wife of N H, was alive and in possession oflhe lands devised IQ her for life at the time when the’ pommon i*ecovery was suffered, and, continued‘in possession unt)l her death, which happened after the death oí J E, and that J E. and those claiming under him, were piso in possession of the lands during the Ufe oí F. — Held, that P, the wife of N II, took ii life estate id thé 'hinds devised to her, ynii W, the son, took an estate tail in remainder — •HeWako, that the common recovery suffered bv H wall defective there being up lega]-surrender of the life estate; and that the fuels* mid circumstances disclosed fvtré not a sufficient ioundation, to presume that there had. been a surrender of the life estate bv the tenant for life. V .... . . J 1
    
    
      Hnld also, that the deed ot 1771 for leading uses for suffering the common recovery and vexing the estatem J E, did not pass to and vest in J E, y base feésimple \n the lands, notwithstanding H heinr dead,and though there was no proof of entry into the lands, or Action to claim thou* for by his issue, or any person claiming under them. * 7 1
    ‘/feW also, that the deed of confirmation in 1789. by H to M.isho was appointed by an act of assem* ply a trustee of LE, an ideot. son *of J 30. and the deed in 1794, by M, to the lessor of the plaintiff, wet© pperative in law to vest in the leg.or ofthe plaintiff an estate in’lee simple in the land-
    
      Qwr$' Whether or not lands tyiilpass by a paroi exchange?
    
      2. The plaintiff then gave in evidence, that Frances Haile died while Ensor, and those claiming under him, were in possession of the said lands. And the defendants .gave in evidence, that Frances Haile continued in possessiufi of the said land until the time of her death, which happened after the death of .Ensor. The plaintiff then prayed the opinion of the court, and their direction to the jury, that the deed of indenture tripartite, of the 11th of April 1771» passed to and vested in Joseph Ensor a base fee simple in the lands in the declaration mentioned; and that Neale Haile being now dead, and there being no proof of an entry into the said lands, or action to claim therefor by his issue, or any person claiming under them, the said base fee passed to the plaintiff’s lessor by virtue of the said deed of indenture from Ensor to him, and will enable the plaintiff to maintain this action. This opinion the court refused to give. The plaintiff" excepted,
    3. The plaintiff" then gave in evidence an indenture of and for the lands in the declaration mentioned, from Neale Haile, the devisee in the will of ¿fichólas Haile, to Elijah Merryman and Eavid MiMechenrX dated the 5th of September 1789, and also a deed of indenture of and for the said lands,, from said David MjMechen and Elijah RErryman, to the lessor of the plaintiff, dated the 1st of May 1794. The former of the said deeds, recited» tbatAWe Haile, in the year 1771, did convey to Joseph Ensor, in fee simple, part of two tracts of land situ,ate in Baltimore county, one called Merryman’’s, .hot, and the other Addition, commonly called Haile’s Addition. That the said Merryman and MiMechen were appointed trustees of Joseph Ensor, an idiot, the son of the first named Jo\ seph Ensor, by act of assembly, and. t,he said lands were vested in them by the said act. Tha.t th.ere were de» fects in the said deed from the said haile to the said Emsor, and doubts whether the fee in the said lands was not still remaining in the said Haile; and for confirmation of the said title, and. aid defects, and to bar the estate in tail, the said Neale Haile agreed to execute the said deed, lie did. therefore, in consideration of the premises, and of five shillings, &c, grant, &c, the said lands, &c. unto the said Merryman and MlMechen, in trust for the said Joseph Ensor, the idiot, and subject to a mortgage from the said Joseph Ensor to the lessor of the plaintiff". The defendant then gave in evidence an act of assembly, passed at April session 1783, ch. 13» appointing the said Merryman ami M‘ ¿lechen trustees of the person and estate of Joseph Ensor» m idiot, the son and heir at law of the said Joseph Ensor, 
      deceased. Whereupon the plaintiff prayed the direction of the court to the jury, that the said last mentioned deeds are good and operative in law to vest in the lessor of the plaintiff an estate in fee simple in the lands aforesaid. Which opinion and direction the court also refused to give. The plaintiff excepted j and the verdict and judgment being for the defendants, he appealed to this court.
    The cause was argued at June term 1811,
    before Chase, Ch. J. and Buchanan, Earle, and Johnson, J.
    
      Key and Harper, for the Appellant,
    contended, on the. first bill of exceptions, 1. That Frances Haile had not a life estate under the will of Nicholas Haile, but that Neale Haile took an immediate estate tail in possession. 2. That the common recovery was valid, because the life estate of Frances Haile, if she took such an estate, ought, in point of law, to be presumed to have been surrendered by her to Neale Haile, orto Carter, and extinguished; or that it should have been left to the jury for them to presume, whether or not there had been such a surrender, from the facts and circumstances disclosed in evidence. Upon the doctrine of presumption, they referred to Warren vs. Greenville, 2 Stra. 1129. Goodtitle vs. Chandos, 2 Burr. 1065. Earl vs. Baxter, 2 W. Blk. Rep. 1228. Mayor of Hull vs. Horner, Cowp. 104, 105. Eldridge vs. Knott, Ibid 214, 216. Wilkinson vs. Payne, 4 T. R. 469. England vs. Slade, Ibid 682, Doe vs. Sybourn, 7 T. R. 2, 3. Campbell vs. Wilson, 3 East, 297. The King vs. The Inhabitants of Long Buckby, 7 East, 45. Daniel vs. North, 11 East, 371, 374, (note). Bull. N. P. 110. 1 Esp. Dig. 254. 2 Esp. Dig. 173. Beedle & Beard's case, 12 Coke, 4, 5; and Gittings's Lessee vs. Hall 1 Harr. & Johns 18.
    The second bill of exceptions was waived.
    On the third bill of exceptions, they referred to the act of 1782, ch. 23, under which a common deed of bargain and sale may dock an estate tail, and cited Laidler vs. Young's Lessee, 2 Harr. & Johns. 69. Jones et al. vs. Jones, ibid 281. Saunders vs. Simpson, 2 Harr. & Johns. 82, (note).
    
    
      Martin and Winder, for the Appellees,
    on the first bill of exceptions, Contended, 1. That Nicholas Haile devised a lifa-estat,e to his wife Frances Haile, with Remainder, /jn tail to his son Neale,
      
       2. That presumptions have always been made to confirm and not to disturb possession. That in this case there was not the requisite possession to lay the foundation for presuming a surrender. That the court were correct in not directing the jury, or in leaving it to them, to presume the surrender, even if they thought there had been one. It was for the court to say ■whether the facts found amounted in law to a surrender. They referred to Carroll, et al. Lessee, vs. Norwood, 4 Harr. & M‘Hen. 287; and 2 Blk. Com. 150, 158.
    On ¡he third bill of exceptions, they contended, 1. That the conveyance to Merryman and M‘Mechen was to them as trustees of JSnsor, the idiot, and that they were not authorised by the act of April 1783, ch. 13, appointing them trustees, to part with the estate, except in the mode pointed out by that act. 2. That Neale Haile contracted with Carter by way of exchange; and that a tenant in tail couid part with his estate by exchange; and that Carter, by the exchange with Neale Haile, obtained a legal estate in tire lands. To prove that an exchange might be by parol, they cited Co. Litt. s. 62. Perkins, s. 244, s. 279, s. 285 Co. Litt. 50, b, s. 64, 66, 51. a. 10 Vin. Ab. 128, pl. 4, 129, 132, pl. 12, 134, 138, pl. 1, 4, 5. Machil vs. Clerk, 7 Mod. 25. Jenkins, 124, 249; and The Stat. Frauds, 29 Car. II, ch. 3, s. 1.
    
      Key and Harper,
    
    in reply, as to exchange of lands by parol, referred to Coke Litt. s. 62. 2 Blk. Com. 294, 297; and 4 Bac. Ab. 494.
    
      Curia ado. vuli.
    
    
      
      
        ) C-hass, Ch. J. The Court are satisfied that Mr.-;. Haile took a life-estate in the whole lands devised to her; and that ¡Atale llailss the son,, ¿oak hu estate tail in ram aindor.
    
   Chase, Ch. J.

at this term, delivered the opinion of the court, stating that the court concurred with the County Court as to the opinions in the first and second bills of exceptions, but dissented as to the opinion in the third bill of exceptions.

JUDGMBKT REVERSED, AND'PROCEDENDO AWARDED.  