Cheney vs. Ringgold, et al. Lessee, 2 H. & J. 87

\t this term the court pronounced their judgment. Buchanan, J.

The facts stated in the bill of exceptions taken in this case are, that prior to the year 1739,. several manors existed in Maryland, which were the private property of the then Lord Proprietary; that on the 2Sth of June 1731, an order issued from the Lord Proprietary to lay off reseroes on and around all his manors; that an order, the date of which does uot appear, issue:! from Samuel Ogle, the then governor of Maryland, to resurvey for the Lord Proprietary his manor called Conogoi'hiegue Manor, in pursuance of which order, that manor was resurveyed, and a certificate thereof, dated the 25th of October 1730, was made out by the proper officer, and returned to the land office; that a reserve was laid off, on and around the said manor, and that afterwards, oil the, 6th of June 1752, Churlos Cheney obtained a warrant from the land office; in pursuance of which a survey was made by the proper officer for and in his name, on the 15th of November 1752, of a tract of laud called Cheney’s Delight, and a certificate thereof made out, which was examined and passed by the examino? general on the 30th ol March 1754, and returned to the land office on the 17th of April 1762, when the composition money thereon, and the rent to that day were paid, and on the 10th of June 1767, the rent to that time was also paid; that on this certificate a patent was refused, because Cheney’s Delight lay within the reserve of Conogochiegue Manor, and that no grant has ever issued thereon; that on the 7th of March 1769, John Morton Jordan obtained a patent for a tract of land called The Number of Two, being a part of the reserve around Conococheague Manor, from whom the legal title to The Number of Two is regularly deduced to the lessors of the plaintiff, and that Cheney’s Delight lies within the lines of The Number of Two.

That Charles Cheney, for whom Cheney’s Delight was surveyed, and the defendant in the court below, have lived thereon ever singe the survey, using the parts exterior to the enclosures ever since the year 1762, by cutting wood, rails, and other timber thereon, for the use and purposes of the farm; and for more than twenty-seven years next preceding the institution of the suit, have been in the actual possession, by cultivation and enclosure, of a part of the land lying within the lines of Cheney’s Delight, claiming title to the whole; and that the lessors of the plaintiff, and those under whom they claim, have, ever since the grant of The Number of Two, possessed and enjoyed a part thereof by actual cultivation and enclosure, claiming title to the whole, according to their right.

It is contended, that the order to lay reserves around the manors of the Lord Proprietary, dated the 30th of June 1731, was not applicable to the Conococheague Manor, which, as it is said, was surveyed in the year 1736, subsequent to the date of that order; that therefore the reserve on that manor was unauthorised and void, and that a patent for Cheney’s Delight was improperly withheld.

But the certificate of Conococheague Manor, dated the 25th of October 1736, is evidently a certl. ficate of resurvey recognizing an original, and having for its foundation an order from the then governor of Maryland to resurvey Conococheague Manor, and for any thing appearing in the record, the original survey of that manor may have been anterior to the .date of the order to lay off reserves.

But whether anterior or not, a reserve was made around Conococheague Manor, and afterwards the warrant granted to Cheney on the 6th of June 1752, was located, (as appears by the aforegoing statement of facts,) within the lines of that reserve; and for that reason it was ordered and determined, that a patent should not issue on the certificate of Cheney’s Delight. And whether the judgment of the judges of the land office, was correct or not, or whether the reserve laid off on Conococheague Manor v\ as properly or improperly made, is not now for us to decide, nor is it material in the consideration of this case.

A patent did issue, for The Number of 'Two, which does not appear to have been ever vacated; and so long as it remains unvacated, if there is no elder patent covering the same land, or other grant overreaching it in law, (neither of which appears,) it operates to vest in the patentee, and those claiming under him, the title to all the land lying within its lines, whether the order to lay off reserves is applicable to Conococheague Manor or not, and whether a patent for Cheney’s Delight was properly or improperly withheld.

To recover The Number of Two, this suit was instituted, and defence was taken for Cheney’s Delight, which, it, appears, lies within the lines of The Nwaber of 'Two, and for which no patent ever issued. Therefore the defence taken, was not on title derived by grant, but grew out of the possession in the defendant, and Charles Cheney, under whom he claims, of a part of Cheney’s Delight, by actual enclosure for more than twenty years before the time of bringing this suit, with a continued enjoyment from the year 1762, of the parts not enclosed, by cutting timber, &c. exterior to the enclosures.

Hence the only question is on the operation of the act of limitations upon that possession. I shall not go into an examination of the questions, whether twenty years exclusive and nmnixed possession of a tract of land by cultivation and general use, without an actual enclosure, is such a possession as will bar a recove rj in an action of ejectment? Or whether twenty years possession of a part of a tract of lend by actual cultivation and enclosure, with an exclusive and immixed enioyment of all exterior to the enclosure by spars'™ ' '<>• and general user, will bar a recovery in ejectment oi the parts not enclosed?

For although they are questions of considerable importance in this state, and whatever ev opinion touching them may be, yet as they are not involved in this cause, it is not necessary, nor perhaps would it be proper, to decide upon them now.

The question in the court below grew out of the faene ®xistmg in the cause; and that the opinion, from which this is an appeal,, was given upon those facts, and with a, view to the particular case then under consideration, n; evident from the opinion itself, which is in these words? “Nothing less thali twenty years adverse possession by actual enclosure will bar or defeat the title of the plaintiffin this case.” And I concur with the general court in that opinion, admitting all the facts stated' in the bill of exceptions to be true.

This is a case of two conflicting claims, in which the pretensions of both parties are set out. The lessors of the. plaintiff with title, having possession by enclosure and. cultivation of a part of the tract of land in dispute, claiming the whole; and the defendant without title, having possession by enclosure of a part of the same tract of land, with the use (by cutting timber, &c.) of other parts not enclosed.

As to that part of the land which was in the possession of the defendant, and his ancestor-, Charles Cheney, by actual enclosure for more than twenty years next preceding the bringing of this suit, the plaintiff is bound by the act of limitations; but not as to the parts used by the defendant exterior to the enclosure. When two are in mixed possession of (he same laud, one by title, and the other by wrong, the law considers him having the title as in possession to the extent of his right.

The act of limitations did not atta.ch or run against the Lord Proprietary on any possession of vacant lands; and even if it could have run against him as to the land in question, he was not barred by the possession of Charles Cheney on the 7th of March 1769, the date of the grant of The Number of Two.

And whatever might have been the effect in law of the use made by the defendant, and his ancestor, of those parts of The Number of Two, claimed by tliem exterior to the enclosures by sparsim cutting, for twenty'years next preceding the institution of this suit, in case the purchaser had never entered and obtained possession before or due ing that user, and no mixed possession had followed; yet in this case it is stated, that John Morton Jordan, the grantee of The Number of Two, and those claiming under him, did immediately after the date of the grant, and túllan SO years from the commencement of any possession in Cheney, enter upon and take possession of a part of Thi Number of Tif>,\ij actual enclosure and cultivation, claiming title to the whole, and have ever since so possessed and claimed; and the possession of part, gives in law •a constructive possession of the whole.

This principle may be extended to both parties in this case, and each may be considered as having been in possession of the land claimed by him, according to his right, and the true extent <*f his lines, with the exception of the parts enclosed by the other — the defendant of Cheney’s Delight, and the lessors of the plaintiff oí The Number of Two, which includes all Cheney’s Delight-, or in other words, the defendant of a part of The Number of Two-, according to certain alleged lines, and the lessors of the plaintiff of all The Number of Two, except the parts thereof enclosed by the defendant.

Their possessions, therefore, of those .parts of Cheney’s Delight not enclosed, or rather of the unenclosed parts of The, Number of Two, claimed and used by the defendant, (for there appears to bé no such grant as Cheney’s Delight,) were mixed or conflicting possessions, on which the statute of limitations could not attach or run, so as to bar a recovery by the plaintiff, who, If the facts slated in the bill of exceptions are true, is the 'legal owner.

Even if the defendant’s possession by enclosure commenced first, which is not stated to be the case, that, and rMs cutting timber exterior to ihe fences, could not have 'prevented the constructive possession vesting by operation of law, in Jordan, of all the unenclosed parts of The Number of Two, on the actual entry and enclosure made by him, and those claiming under him, upon a part of that tract of laud, within twenty years from the date of the. "rant, claiming title to the whale.

Bui if the possession, by enclosure, of the lessors of the plaintiff, and those under whom they claim, commenced first, and for any thing appearing in the record that may have been the fact, surely no cutting, &c. by the Cheneys, exterior to their enclosures, could so divest the possession, cast by law upon the plaintiff", of the unenclosed parts of The Number of Two, as to let in the, operation of the act of limitations.

Upon the whole, I consider the question in ibis case to l>e, whether twenty years mixed possession of unenclosed lands can operate to bar a recovery in ejectment by the rightful owner, he being one of the possessors? On this question I feel no doubt, and therefore am of opinion that the judgment of the general court ought to be affirmed. Nicholson, J. concurred. Ganti', J. dissented.