
    Stevenson vs. Howard, surv. of Pennington's Lessee.
    Appeal from Baltimore County Court. This was an action of ejectment, brought on thé 21st of September Í808, fidr part of a tract of land called Salisbury Plains, described by metes and bounds,-on a joint demise for the whole of such part by J. E. Howard and J. Pennitigton, and on separate' demises by teach of them; for aia undivided moiety of said .part. The defendant, (now appellant,) took defence on warrant, and plots were made. The death of Pennington, one of the lessors of the plaintiff, was suggested after the-issue was joined. At the trial the 'plaintiff gave in evidence a patent'for Salisbury Plains# granted to 'Thomas Pert and Robert Benger on the 10th of July 1-671, and that he had truly located the same on the plots in this cause. He also gave in evidence, that Thomas liuttei, (the first,) -was seized and possessed of Salisbury Plains, and died so seized in 1746, having by his will, dated the 26th of September 1744, devised to his son Tho■mas Butter, in tail, after his mother’s death, all the remainder part of Salisbury Plains. He also gave in evidence, that Thomas Rutter, (the -second,) the son of the said devisor, entered in possession of that part of Salisbury Plains devised to him by the said will; and so being possessed thereof did, on the 23d of February 1780, convey a part of his said part of Salisbury Plains to Benjamin Griffith, containing a lot of near four acres, &c. And also gave in evidence, that the location of the said deed, by the plaintiff on the plots, was correct. He further gave in evidence a deed from Aim Griffith, daughter of Benjamin Griffith, to John Eager Howard, one of the lessors oí the plaintiff, dated the 2d of September 1801, for all her right, &c. in the same land conveyed to her father by Tliornas Rutter. That Benjamin Griffith died intestate on or about the year 1800, leaving six legitimate children, who are now living, one of whom was the said Ann Griffiths He also gave in evidence a deed from John E. Howard, to JoSias Pennington, the other' lessor of the plaintiff, dated the 25th of November 1801, for one moiety or undivided half part of part of Salisbury plains, stated to have been conveyed to the said Howard, by Thomas VP. Griffith, on the 28th of October 1801, and which was conveyed to Benjamin Griffith by Thomas Rutter on the 23d of February lf'80. The defendant then prayed the court- for their direction to the jury, that the plaintiff had not made title to the land mentioned in the declaration, or any part thereof, so as to entitle him to recover. This direction and opinion the Court,, j'Nicholson, Ch. J. and Hollingsworth, A. J] refused to give The defendant excepted. Verdict for the plaintiff for one undivided twelfth part of all that part of Salisbury Plains which is included in the following lines: — Beginning, &c. The defendant moved the court in attest of judgment, and assigned the following reasons: J. That the jury were sworn io try the issue joined between Jacob Goodtille, (who claims by a joint demise from John E Howard and Josias Pennington, for the whole land mentioned in the declaration,) and the defendant, and the verdict was for an undivided twelfth part of said land'. 2. That the jury were sworn to try the issue joined between Jacob Goodtille, (who claims under a several demise from John E. Howard and Josias Pennington, for one undivided moiety by each of them of the land mentioned in the. declaration,) and the defendant, and there was a general verdict for an undivided twelfth part. 3. That the jury were sworn to, try the issues between Jacob Goodtilles_ (who claims under a joint aud several demise from John E. Howard and Josias Pennington,) and the defendant. That the, death of Josias Pennington was suggested, and admitted on tiie record, and there was a general verdict without specifying under what issue the jury found. 4. That the verdict was not sufficiently certain for the court to render a judgment upon it. 5. That there were various uncertainties and contradictions, by reason of which no judgment could be entered. The county court overruled the motion, and entered judgment on the verdict for the plain-. tiff, and the defendant appealed to this court.
    
      ; : . ’ ; In an action of ejectment on the joint demise of J H and J P, to the plaintiff,fora part v of a tVact of land, and on , separate demises by each of them, ioran undivided moiety of such part, the death of J P was sugge-ted after the issue was joined, and a verdict was rendered for the plaintiff for one Undivided twelfth part of the 1 met, described by lines on the plots. A motion in arrest Of judgment was ovemi ed, and judgment entered on the verdict for the plaintiff.
    ; ¡ The plaintiff in deducing his title to the land in. question, gave in' evidence a grant for the land in 1671 toT P and R B,and that T R was seized and possessed of the land, and died so seized in 1746, having by his will in 1744, devised the land in tail to his son F R. after hie mother's death, F U in 1780, being in possession, conveyed' the land to B G. who died intestate in 1800, leaving six cliil dren, one of whom conveyed all his ' interest to the lessor of the plaintiff Held, that, the life estate set up to defeat the action, must, from the length oftime that had elapsed (1746 to 1803,) be considered as having expired before the ejectment was ‘ brought, and that the plaifltiff was entitled to reco* Ver,
    
      The cause was argued before Chase, Ch. J. and Bn«manan, Earle, Johnson, and Martin, J.
    
      Martin arid Winder, tor the Appellant.
    1. The verdict does not state on which of the counts in the declaration it was found; and as there were several counts, two of them on the demises of several lessors, the verdict not describing under which count it was found, was so uncertain that ao judgment could be entered on it.
    
      S» By fee will of’ T. Rutter a life-estate was gnen to Wa wife, and there was bo proof »t the trial that she was dead, or that she had conveyed away her life-estat» to the I'ísmws ©ft the plaintiff, or those, antler whom ihyy claimed, ¡ía line devise to the son, after his mother’s depth,, there is wo description of what part of the tract was devised in lihn. The son could not convey such an estate at; «wold cnabto the plaintiff to recover, as it shall be intended that the. devisee for life was alive, unless the. chairar; in shown. 12 Vin. Ab. tit. Evidence, 124. a. b. 56. Nor was the deed from T. W. Griffith to J. E. Howard, recited in the one from Howard to Pennington, offered in evidence ■ !', Griffith having-died intesiafe, leaving six cbilrfepu, lib r-vi3 ©state descended to the whole of fnesn under the put of 1786, ch. 45, and no one of the children had c<ny right to the land, unless allotted to such child under thto act. Whether an action of ejectment can bo brought by any u&o ©f them, or by any person claiming under any such child j Is a question not decided*
    Harper, for the Appellee.
    I. No other verdict could be given. But if it be erroneous, it is cured by the act of 1809,, eh, 558, s 2, which provides, that if there is one good couni to which the evidence will apply, and there is a genera! verdict, it is to be supposed the verdict meant to apply to that count.
    2. The question respecting the devisee for life was not oefc up or thought of in. the court below? if ii had it could have been easily proved that she was dead. The devise was to her in 1744, when she was at least 25 years of age, haying been married, and was the molher of four children, as appears by the will. If she had been living at the trial, ■she would have been upwards of 90 years of age. She must, therefore, from the length of time, be presumed to be dead.
   The Court

affirmed the judgment of the County Court, On the second point raised, they said that, the liie-omfe,, set up to defeat the action, from the length of isme feat ?tad elapsed before the suit v as brought, roust be covr-Uered as having expired before the ejectment was brought

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