Wm. Peterkin and others' Lessee, vs. Wm. Inloes and others, 4 Md. 175

Tuck, J., delivered the opinion of this court. As the present controversy grows out of the same title as that, set up in the case of Hammond vs. Inloes, (ante, 138,) and the suit was defended in the same manner, reference is made to the opinion in that case for a statement of what we-consider to have been settled by the former decisions of this court, and by which some of the questions argued on this-appeal are also to be determined. It is sufficiently shown by the letters of administration on the estate of John and Mary Oulton, that they were dead in the year 1709. 1 Greenlf. on Ev., sec. 550.

He devised "Bold Venture” to Mary Oulton in fee. As evidence that this tract escheated after her death, the plaintiffs relied on the patent of “Rogers’ Inspection,” granted in 1759, which was also- in evidence in the case of Wilson vs. Inloes, 6 Gill, and on the first trial of Casey vs. Inloes, 1 Gill. The plaintiffs offered three prayers and the defendants offered three, identical with those presented in 6 Gill, and the. case of Hammond vs. Inloes, at this term.

If the plaintiffs’ case has not been materially improved, the judgment of this court must be the same in both eases. ■ Objection has been made on the part of the appellees to the title of the plaintiffs, independently of any defence on their part founded upon the grant of “ Bold Venture.” They have also contended, that as the title of the plaintiffs' commenced in 1773 by the legislative grant of that year, (as now insisted by them,) no priority of franchise or right to improve could be claimed by one riparian owner over another, both being such at the passage of that act; and that as the addition to Baltimore town, then made, first included the water line of “Mountenay” and that of “FelPs Prospect” under which the defendants claim, both of which had been previously granted, the owners of these tracts must be considered as entitled, cotemporaneously, to the “immunities and privileges” conferred by that act; that is, the right to impw in the act of 1745: and that “Mountenay^ situation in that respect than “FelPs Prospk it unnecessary to express any opinion uj because we think that the interests of the pf the case should be disposed of by a decision* The first prayer of the plaintiffs was defect?! mitting to the jury to find, whether the addition to Baltimore was made as located on the plats.

If the act of 1745, at the time of its passage, did not affect the property in controversy, because it had not then become a part of Baltimore, the act of 1773 conferred no privileges to the riparian owners, unless it appeared that the addition was made in pursuance of that act. According to the prayer, the jury might have found for the plaintiffs, even if the addition had never been made. But this prayer is defective in not taking notice of the title of “Bold Venture,” for the reasons assigned by us in Hammond vs. Inloes, to which reference is made.

The second prayer asserts that “Bold Venture” escheated before 1745. The evidence shows that Mary Oulton died in 1709. But it does not submit to the jury whether she died intestate as well as without heirs. But apart from this defect in the frame of the prayer, we thiuk that the evidence was not sufficient to warrant the finding of an escheat before 1745. The law does notpsesume that a person dies without heirs. The absence of any claim of title by those representing her is not to be taken against the defendants, when we consider the nature of the property, as we have heretofore said, in Ham mond’s case.

If “Rogers’ Inspection” be relied on as proof of escheat, we must not forget that the Court of Appeals, in 1 Gill, 510, decided that a patent is evidence of escheat at the'.date of the warrant and not before. The other evidence, in our opinion, does not show that the property had returned to the State at an earlier period than April 1759, the date of the warrant for “Rogers’ Inspection.” The third prayer, predicated on the same proof, refers the escheat of “Bold Venture” to 1773, and asserts that it was sufficient to authorise the jury to find that fact as of that time.

We do not think that the further lapse of twenty-eight years from the time of Mary Oulton’s death will, under the circumstances of this case, produce that result. And if “Rogers’ Inspection” is supposed to be evidence of the fact, as of the date of the warrant, it must be taken altogether, as well against, as for, the party offering it in evidence.

And from it it may fairly be inferred, that the State had, previously to the act of 1773, granted all of “Bold Venture;” for that patent grants to Rogers a certain number of acres, “clear of elder surveys,” which must mean elder surveys oí “Bold Venture,” because Rogers was entitled by his warrant to take up the whole of that tract as escheat. This statement in the patent we regard as evidence, upon the authority of this court in 1 Gill, 492, where an ancient certificate of the surveyor was received as evidence, that at that time the premises were in possession of the persons named therein as being in possession.

We are of opinion that this case is not materially different from Hammond vs. Inloes; and for the reasons assigned and upon the authorities cited in both cases, we approve of the refusal by. the court below to grant the plaintiffs’ prayers, and of their instructions to the jury as prayed on the part of the defendants. Judgment affirmed with costs.