
    Hawkins's Lessee vs. Gould.
    Appeal from Queen Jlnne’s County Court. Ejectment for a tract of land called Macklinborough. Defence on warrant, and plots returned. At the trial the plaintiff, (now appellant,) read in evidence the certificate and patent of the tract of land called Macklinborov.gh. He also traced his title from tire patentee to a certain Judith IIoivden, who he proved to have intermarried with one Thomai Wyatt,', and then read the following deed from Thomas ■ Wyatt, and Judith his wife, to John Parsons, to prove an alienation of her title to Parsons, and his heirs, for ever, viz. “Among the land records of Talbot county, among ether things the following is enrolled, to wit, Thomas Wyatt, and Judith Wyatt his wife, the said Judith being first privately examined as the law requires, come before the court, and did acknowledge this following deed of sale unto John Parsons: This indenture made the 16th day of November, in the eighth year of the Dominion of Charles, absolute Lord and Proprietary of the Provinces of Maryland and Avalon, Lord Barron of Baltimore. &c. 1683, between Thomas Wyatt, and Judith Wyatt his wife, of the one party, 'and John Parsons of the other party, both inhabitants in Talbot county, in the aforesaid province of Maryland\ — Witnessed), that Thomas Wyatt, with the' consent of Judith Wyatt his wife, for and in consideration of five thousand and eight hundred pounds of tobacco, to him iti hand already, before the sealing and delivery hereof to the said John Parsons, the recept whereof he doth acknowledge, and for every part thereof doth hereby absolutely and clearly exonerate, acquit and discharge, the said John Parsons, his heirs, executors, administrators and assigns, and by these presents hath given, granted, bargained, alienated, sold, enfeoffed and confirmed, unto him the said John Parsons, his heirs and assigns, for ever, a parcel of land lying and being in Chester river, and in Talbot county, and in the said province of Maryland, beginning at,” &;c. ‘‘containing and now laid out for one hundred and ninety and nine acres, more or less; to have and to liold the said lands for ever, together with all ways, easements and privilledges, to the same belonging or appertaining, together with all writing, deeds, charters, devidehts, touching or concerning or any part or parcel thereof, to have and to hold the said parcel of land according io the bminds above mentioned, together with all meadow or feeding pasture grounds, underwoods, water courses*, tubing, fowling ways, profits, commodities, commons of pastures, hereditaments whatsoever, to the said lands, the Said lands being lately in the tenure or occupation of the said Thomas Wyatt, and also all the estate, right, title and interest, use or possession, property, claim and demand whatsoever, of.him the said Thomas Wyatt, oí, in and to, the same, with all writings, .and all deeds, evi-> deuces, charters, transcripts, fines, patients, court Voiles» excripta and muniments whatsoever, touching and concerning (lie premises, or any part or parcel thereof, to have and to hold, and shall and will, forevermore, warrant and defend by these presents; and the said Thoryas Wyatt, at the time of ensealing and delivery hereof, of these presents, is and standeth, is, and until a good pure and perfect and absolute estate of inheritance of all and singular the before granted premises, and every part thereof, shall be fot-, ly vested, settled and executed, in and upon the said John Parsons, and his heirs, according to the true intent and meaning of these presents, shall remain, continue and be,seized, pf and in the said lauds, and all and singular other the premises, in and by these presents grantee), bargained and sold, with all and every of these rights and appertetiances, and memhers, of a good, perfect and absolute estate of inheritanced, in fee simple, without any condition nr limitation of any use or user, or estafes, in or to any person or persons whatsoever, to alter, chatige, defeat, determine, or make void the same; and that tile said Thomas Wyatt,, at the time of ensealing and delivery of those presents, bath full power, good right, and lawful authority, to grant, bargain, sell, and convey, and all and singular the before hereby granted or mentioned premises to be granted, premises with their and every of their rights and appertenances, unto the said John Parsons, h(s heirs and. assigns, in manner and form aforesaid; and that he the Said John Parsons, his heirs or assigns, and every of, shall and inav, by force and virtue pf these presents, from time (t> time, and pf alt times hereafter, lawfully, peacably and quietly, have, hold, oepupy, possess and enjoy, the said, lands, and all and singular the bef°r$ granted premises, “with their and every of their fights, members and nppertelianccs, to have, receive and take, the issue and profits thereof, to his and their own proper use and behoof for ever, without any jett, suit, trouble, denial, interruption» eviction pr dii.fbrlj.4nce, the said Thomas WyQtt, his heirs or assigns* or of any other person or persons whatsoever, lawfully claiming from or by, or under him, or any of them, or by his or their means, act or consent, title, interest, privity or procurement, and that free and plear, and freply and dearly acquitted, exonerated and discharged, or otherwise, from time to time well and sufficiently save and keep harmless by the said Thomas Wyatt, his heirs, executors pr administrators, of and from all manner of fines, or other gifts, grants, bargains, sales, leases, mortgages, joynfers, dowers, title of dower, statute merchants, and of staple, recognizance, extents, judgments, executions, uses, entailes and issues, with all other titles, troubles, incumbrance whatsoever. In witness whereof the before named Thomas Wyatt, and Judith Wyatt his wife, of the one party, and John Parsons of the other party, hath interchangeably set their hands and seals the "day and year above written.
    
      A deed exeeuf* ed,in 1683, and stated to be made between T W, and .T W his vife0 of the one part, and J P of the other part, and that T W, with the consent of J W his wife, in consideration otV &e. granted, See, to J P, and his heirs, a parcel of land, and signed and sealed by T W atí<l j W 1m wife, and aelcntowledged by them in open' court, ‘‘the said J being ‘first privately exa= ‘joined as the law ret¿'4ÍeevWf¿W u> fes ír opewtfive to paji a fee ífmu f \V lo J she aofc being a '¿rfi/puy the deed»
    
      Signed, sealed and delivered, in the presence of us. John Punowes, his Jiichd. M Bridge.” mark > his Thomas M Wyatt, [Seal.] \ mark. ' her Judith ¡xj Wyatt, [Seal.J mark
    This deed was certified by the clerk of Talbot county court to .be copied from one of the land records.of that county. The plaintiff also read in evidence a dee<j from John Parsons to John Hamer, and one from John Parsons and Dameras Parsons his wife, to John Hamer. He then read in' evidence the will of John Hamer, devising his dwelling plantation to his daughter Mary Hamer, and proved that a certain Mary Hamer married one John Chaires, and by him had two sons John Chaires and James Chaires, of whom John Chaires was her eldest son arid heir at law; that she survived her said husband Chaires, and intermarried with a certain Solomon Clayton, and after his death she became the wife of on e Edward Downes, and died the widow of Downes in the year 1779. The plaintiff also proyed by a witness, that he, the witness, was at the funeral of the said Mary Downes, and when he had returned home with .her mother, who is now dead, he was informed by her, that the maiden name of the said Mary Downes was Hamer, but that .hg did not remember to have understood from her that -ÍW said Mary Dowrtes was the daughter of John Ilamer. The plaintiff also proved by said witness, that the late John Chaims, deceased, who was sometimes called Preacher John, was 1he eldest son of the above named,John Chaires, son of the said, Mary Downes, and that the said Mary Downes, ftt her decease* was a very old woman. By another witness — that many years ago he lived in the family of the above named Mary Downes, and that he constantly understood From her and others, that preacher John Chaires was her grandson, the son of her eldest son John Chaires, at that time deceased; and that the plantation in Johny Cake Neck, held by the said Mary Downes, she delivered up to her said grandson in her life-time. Which last mentioned evidence was offered, not to prove a possession jii the plantation aforesaid, büt merely to show that John Chaires, preacher* was grandson and heir at law of Mary Downes, The plaintiff then read in evidence a deed from the said preacher Jo/iñ Chaires, to the lessor of the plaintiff. "When the plaintiff had thus traced his title from the patentee, the defendant moved the coúrt to instruct the jury, that the above mentioned deed from Thomas Wyatt and Judith his wife, to John Parsons, was inoperative to pass a fe<3 from Judith Wyatt to John Parsons, she not being a grant-'d1 in that deed, and that there was a chasm in the evidence, and that the plaintiff, who is to recover on the strength of bis title, could not therefore support his ejectment. The court, \_Purnell, A. J.j was of opinion, and did so state to the jury, that the said deed from Thomas Wyatt and Judith his A’ife, to John Parsons, was ineffectual to pass the fee simple estate to John Parsons, the said Judith not being a grantor in the said deed, and that the title of the plaintiff was not fully made out. The plaintiff’excepted; and the verdict being against him, he appealed to this court.
    The cause was argued before- Polk, Nicholson, and Johnson, J.
    
      Girmichael, for the Appellant,
    contended, that a different construction will be given to a deed of 1688 from what would be given to a modern deed; and although the deed in question would be invalid if a recent one, it was valid as an ancient deed. He referred to 2 Blk. Com. 298, 379, 380, Wright vs. Kemp, 3 T. R. 470; and Langdon vs. Goole, 3 Lev. 21. In the deed, the name of Judith Wyatt is inserted in the premises. Lord Say and Seal's case, 10 Mod. 46. That if the deed was originally invalid it was made valid by the acts of 1674, ch. 2, s. 4, and 1715, ch. 47, s. 4.
    
      Kerr, for the Appellee
    The deed is incompetent to pass?, the fee in the land from Judith Wyatt, either at common law or under the acts of assembly. It does not, on the face of it,- purport to pass any interest except that of the bus-fend. 1. Judith Wyatt has not granted. 2. If she did, yet. the deed was not properly acknowledged.
    1. Judith Wyatt doth not grant either in the premises, or in the habendum, 2 Blk. Com. 298. If the deed can operate, it must be as a deed of bargain and sale; It cannot operate as a bargain and sale, for there is no money consideration. 1 Blk. Com. 464. Gittings's Lessee vs. Hall, 1 Harr. & Johns. 14. Chaney's Lessee vs. Watkins, Ibid 527. The words of the conveyance,, must express the extent of the interest to be passed. Wood's Convey, 228, 239. The deed must be sealed and delivered by the party contracting. Co. Litt. 35, b. There must be a grantor, grantee, and a tiling granted. 2 Blk. Com. 296, 297. Wood's Convey, 236.
    2. The deed was not executed and acknowledged by Judith as the acts of assembly required. 1 Bac. Ab. 467. Wood's Convey, 167, 169. Webster vs. Hall, 2 Harr. & M‘Hen. 19. Flanagan vs. Young, Ibid 38. Lewis vs. Waters, 3 Harr. & M‘Hen. 430. Mayson's Lessee vs. Sexton, 1 Harr. & M‘Hen. 276; and Hammond's Lessee vs. Brice, Ibid 323, 333. It is not stated when the deed was recorded.
    
      Carmichael,
    
    in reply, The deed was acknowledged in open court, and therefore the form of the acknowledgment need nt>t appear. It is also aided by the act of 1807, ch.52. The deed was recorded in time, for having been acknowledges! in court it was left with the clerk to be enrolled, and lii$ omission of the time of enrolment will not invalidate it.
   JUDGMENT AFFIRMED.  