
    Maydwell et al. Lessee vs. Carroll.
    Appeal from Baltimore County Court. Ejectment brought by the appellant to recover a tract of land called Merryman*s Lot, on separate demises of one fifth part by each of the lessors The defendant, (now appellee,) took defence on warrant, and plots were returned.
    
      1. At the trial, the plaintiff read in evidence a patent granted to Charles Merryman and Nicholas Haile, on the 6th of May 1689, for Merryman’s Lot, containing 210 acres, more or less. It was admitted that Merryman and Haile divided the said tract of land between them, and -that Merryman received all that part: which lies to the N E of a line drawn on the plots, and Haile received all that part which lies to the S W of the same line, (this latter part being the land in controvery,) and that they took possession of their said respective parts, The plaintiff also' gave in evidence, that Nichblas HaiU died in 1730, háving tnatle his last will and testament, devising his said part of Merry-man’s Lot. £See the devises set out in the case of Carroll’s Lessee vs. Maydwell et al. ante 292.] The plaintiff further gave in evidence, that Frances Haile, the devisee for life, and Neale Haile, the devisee in remainder, of said part of Merryman’s ÍM, lived together thereon until about the year 1740. That a certain Benjamin Long purchased of a certain William Worthington a tract of land called Fhe For r CM, in fee simple, and that Long agreed to let William Carter have one half of the said land, tipon his paying the sum of ten pounds sterling, which said sum of money he accordingly paid, and himself and Long entered upon and were possessed of said tract of land, before and in the year 1740, bitt Obtained no deed or conveyance for it at that time. That Neale Haile and PFilliam Carter¡ being so possessed and entitled to the said parts of the tracts of land called Mernjrrian’s Lot and The Forrest, did, by parol agreement, mutually exchange said parts of said tracts of land, and in pursuance of said exchange, in the year 174CÍ, Neale Haile removed to and took possession of Carter’s part of The Forrest, and continued in the undisturbed and peaceable possession of it until his death in the year 1796, and also devised the sanie, by his last will atid testament, and that, his devisee continues to this'day in the undisturbed and peaceable enjoyment and posses- ( sion thereof; and that Carter removed to and tool? possession of Neale Haile’s part of Merryman’s Lot, in conjunction with Frances Haile, by her permission and consent,to whose daughter he had been and then was married, and lived in the same house with Frances Haile, the devisee for Jife of Nicholas Haile, during the winter of the year 1740, aud in the spring he built himself a house on it, and began to clear and cultivate the same, and continued in the undisturbed possession of it from that time until 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 in possession of the place. That Ensor, if he ever paid any part of the consideration which was to have been paid to Carter, for the said land, altogether failed to pay a considerable part thereof; and that about the time of the death of Easor, which happened about the year ITTQpr ITSO, Carter returned and took possession of said land again; and that Carter never gave any tlsed or conveyance for the said iapd to En.sor; and that Garter, and those claiming under him, were from thenceforth in the peaceable possession of the sail! lands, until they were ejected therefrom by David M-Mechen and Elijah Merryman, getingas trustees of Joseph Ensor, a lunatic, and son of the said Joseph Bnsor, deceased. That Carter died in 1782, having by his will, daied the 21st of December 1781, devised the said part of Merryman’s Lot to James Maydwell, who married his daughter Temperance, This devise was ns follows; “Item, Now whereas I was possessed of a tract ofland, being part of IJerryman’s Lot- and part of Haile’s Addition, as expressed by Nicholas Haile’s will, which land was willed by the said Nicholas Haile, to his son Neale, for which I chang.» ed another tract in ¿he Forest, and made the said Neale a lawful right, and he now refufes to make me a right. Now I do hereby give unto my son-in-law, James Maydwell., full and ample authority to sue for the same, to all i»tepts¡ and purposes, as I could do myself if I was in being and there present; and if'be recovers the same, it is my will and desire, that my dear and well beloved wife Anne, shall have her living* in or on it during her life, provided she dies a widow, but in case she marries* again, then she shall quit all claim or privilege thereto, and the right to descend to, and become the right of my said son-in-law, the husband of my daughter Temperance, and their heirs, for ever; and in like manner after her decease if she dies a wldo.w.” That Temperance and James died before the institution of this suit, intestate, leaving the lessors of the plaintiff their* only children and heirs. That at the time of the exchange between Neale IMile and Willi e/m Carter, the said Neale Jflaileg&ve his bond of conveyance to Carter, for the conveyance of said part of Merryman’s Lot,, in pursuance of said exchange, which bond was not now in possession of the plaintiff, and was proved to have been lost. Thai William Worthington, in pursuance of said exchange, by deed of bargain and sale regularly executed on the 10th of September l.7él} conveyed all the said land called The Forre.sk 
      to Beale Haile and Benjamin, Long, containing 200 acres, for the consideration of ¿18 sterling money. That the share or interést oí Benjamin Long in The Forrest, came by regular and legal conveyance from said Long to Joseph Taylor; and that Carter and- L*ong held each one half of that tract, as in severalty, before the exchange between Haile and Carter,■ and that after- Haile made said-exchange, and took possession of his part of The Forrest in pursuance of the exchange, he and Long held each one half said tract . in severalty, until Long sold and conveyed his part thereof, and the same came as aforesaid to Joseph Taylor; and that Taylor and Haile thereupon did, by deed regularly executed, acknowledged and recorded,-confirm said division,, and holding in severalty, and djvjded thereby the said land between themselves, in pursuance of and according to said holding. That although Joseph Ensor, the father, died possessed of considerable property real and personal,-yet the same was greatly insufficient to pay his debts, and that Carter, nor his representatives, have pver been paid the balance remaining due as aforesaid for the pure hasp of said land, from Joseph Ensor, or any other person; and that Frances Haile, the tenant for- life, died some time in the year 1774. The defendant then rpad in evidence, by consent, the depositions of Benjamin Long and George Chiles. [See them set forth in the before mentioned case of Carroll’s Lessee [us. Moydwell et al. ante 292-3 Pie also gave in evidence an indenture, executed on thp 11th of April 1771, by Neale Haile, with a certain William Cooke, to the said Joseph Enspr, of and concerning (he said land called Merry man’s Lot; and also a common recovery, suffered by said Neale Haile, to said Joseph Ensor, of and concerning the said land, with a writ of seizin thereop, and the return of the said writ; and that the said indenture was made, and common recovery suffered, with the knowledge and consent of the said William, Carter, and in pursuance of the permission given by him for that purpose, as stated in the said deposition of said Chiles. [See the deed and common recovery ip QprroU’s' Lessee vs. Maydwell, et al. anie299,.~\ That in or about the yearl7£9, Joseph Ensor died, leaving a very considerable reaf estate, pnd also leaving an infant son, Joseph Ensor, his heir' at Iaw? who was an ideot, and a daughter, Mary Ensor; and i}jat after the depth of Joseph Ensor, ‘the father, and dy,rjngthe infancy of Joseph Ensor, the son, William Carter, alleging that seventy pounds, part of the sum agreed to be paid to him by Joseph Ensor, the father, for his right to part of Merryman's Lot, still remained due and unpaid, re-entered into the said land, and possessed himself thereof, and died so possessed, having first made his will, as stated and proved by the plaintiff. lie also gave in evidence an act of assembly appointing Elijah Merryman and David Mi Mechen trustees of the person and estate of the said Joseph Ensor, the infant, passed at May session 1783. And that after tire passing of the said act, and the death of William Carter, and during the life of Joseph Ensor, the infant, Merryman and M*Mechen, under the authority in the said act contained, brought an action of ejectment in the general cojirt against Janies Maydioell, then in possession of the said part of Merryman's Lot, tinder the will ef William Carter, tp recover from him the said iand, in which action the aforesaid deposition of Benjamin Long was taken on the part of the defendant, and filed in the cause; and there’ was a verdict for the plaintiff in May ■term 1789, a writ of possession issued to flciober term 1790, and possession thereof duly delivered to Merryman and MiMechen, on the 18th of September 1790. lie also gave in evidence a deed of mortgage front the said Ensor, the father, to Charles Carroll, of Carrollton, duly executed, acknowledged and recorded, dated 37th of June 1771, for, amongst other land, 105 acres of land, lately the dwelling plantation of Nicholas Haile, deceased, being part of a tract or parcel of land called Merrymem's Zo/; also SO acres, being part of Haile's Addition, &c. redeemable on payment of ¿¿G76 19 9 sterling money, on the SOth of June 1777. Also a deed from Neale Haile to Merryman. and M>Mechen, dated the 5th of September 1789, for Merry-man's Lot, and Addition. commonly called Haile's Addition, stating the conveyance from Haile ip Joseph. Ensor in the year 1771, in which conveyance it is stated there were defects, &c. He also gave in evidence, that after the said possession, Merryman and Ml Mechen conveyed the said land to Charles Carroll, of Carrollton, by deed duly executed, acknowledged and recorded, dated the 1 si of May 1794 — consideration, in part payment ofhis mortgage, and of 5 shillings, &c. And that’the said land, through vari9U$ conveyances, passed from the said C, Carroll¡ of Car-
      jolfton, fir the defendant, in oy about the year 1801, whr<¿ since that time, and before the institution of this suit, made improvements thereon to the’value of &4Q,000, and upwards; and that James SJifydwell, in his life-time, and the lessors of the plaintiff before and since his death, resided in the neighbourhood of the said land, and were fully apprised of thp said improvements. The plaintiff th^p prayed. the opinion of the court, and thety direction to, the jury, that if they believed tire matters so offered in evidence by the plaintiff, that then he had made title to the land mentioned in the declaration, and was entitled to recover, although they may also believe the evidence of the defendant; and that if a deed was necessary from Neale Haile to William Carter, to perfect farter’s title to the said parí pf Men yuan’s Lot, that the jury might and ought to presume that such deed was regularly and duly made. This direction the Court, [_Nicho.lson,'Ch. J.3 refused jo give. The plaintiff excepted.
    
      An exchange of lands cannot be proved by patrol evidence
    
      2. The plaintiff then gave in evidence, that after Em $or’h death, Carter,, and tlms.e who claim under hiqi, were in the peaceable and quiet possession for ten years, of the land for which this suit was brought. The defendant then gave in evidence, that the possession of Carter, and those claiming under him, was during- the infancy of Joseph En~ sor, (lie son, and was terminated by the recovery in ejectment by Merryman and ■ÉPMeuheh, and the obtaining of possession under the same. The plaintiff then prayed the court to direct the jury, that he was entitled to recover the sai,cl. land against the defendant, unless he the defendant can show a good title to the same. But the court refused to give the direction. The plaintiff excepted; and the verdict arid judgment being against him, he' appealed to this court.
    ■ The cause was argued before Chase, €1}? J. and Buchanan, Earle, and Johnson, J. by
    
      Marlin, for the Appellant; and by
    
      Harper, for the Appellee.
   Chase, Ch. J.

delivered the opinion of the court, stating, that in the case of Carroll's Lessee vs. Maydwell, et al. (ante 292,) whjch was, very fully- argued by the counsel con- • cerned, the cuu.rt had, formed an opinion on the- question as fo the exchange ¿t the lands, and which was, tíiat such án exchange cannot be proved by parol evidence,, and ihejr were therefore of opinion, in this case, that the appellant had not made title to the land in dispute. The court consequently concurred in the opinions declared by the court below in each of the bills of exceptions.

JUDGMENT AFFIUMED.  