# Carroll v. Lessee of Carroll

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United States Supreme Court
57 U.S. 275
Carroll v. Lessee of Carroll
THIS case came up, by writ of error, from the Circuit Court of the United States for the District of Maryland.
It was an action of ejectment brought by the defendants in error, as heirs of Michael B. Carroll, to recover three undivided fourth parts of all of three several tracts or parcels of plantable land, called, for the first of said three tracts, 'Black Walnut Thicket' and 'Content,' contiguous to each other, lying and being in Prince George's county, in the State of Maryland, containing seven hundred acres, more or less; and called, for the second of said three tracts, 'Addition to Brookfield,' situate, lying, and being in Prince George's county aforesaid, containing one hundred and fifty acres, more or less; and called, for the third of said three tracts, 'Lot No. 1,' being part of a tract of land called Brookfield, containing four hundred and fifty acres, more or less.
Carroll made a will in 1837, in which, after some legacies, he devised all the rest of his property, real, personal, and mixed, to his wife, Jane M. Carroll.
In 1850, the legislature of Maryland passed a law, which is recited in the syllabus at the head of this report, and also in the opinion of the court.
In August, 1851, Carroll died, upon which the present action of ejectment was brought by three of the four branches of his heirs, to recover three undivided fourth parts of the lands mentioned in the beginning of this report. The claim to the two latter tracts did not appear to have been prosecuted, but the controversy turned exclusively upon the title of the plaintiffs below to 'Black Walnut Thicket' and 'Content.'
Upon the trial in the Circuit Court the plaintiffs offered, in evidence, to support their title:
1. The patent for 'Black Walnut Thicket,' dated at the city of St. Mary's on the 27th September, 1680, and the patent for 'Content,' dated on the 10th of August, 1753.
2. A deed from W. B. Brooks and others, to Michael B. Carroll, dated on the 29th of January, 1842, which purported to convey all those tracts, parts of tracts, or parcels of land lying and being in Prince George's county, called 'Black Walnut Thicket' and 'Content,' contiguous to each other, and contained within the following metes and bounds, courses and distances, namely, . . .. (these were not identical with those of either patent.)
3. The plaintiff then proved possession, by Carroll, of the parcel of land described in the deed to him, from the date of that deed until his decease; and also proved possession of the same by those under whom Carroll claimed from 1809.
The defendant, by her counsel, then prayed the court to instruct the jury that there was no sufficient evidence in the cause from which the jury could properly find that the land embraced in said deed, from said Walter B. Brooks and others, to said Michael B. Carroll, offered in evidence by the plaintiffs, is the same land, or parcel of the same lands, embraced in the said patents or in either of said patents. But the court refused said prayer, being of opinion that there was evidence in the cause proper to be left to the jury to determine whether the said land, mentioned in the deed, was the same, or part of the same, granted by the said patents. To which opinion of the court, and to the refusal of said court to grant the aforesaid prayer of the said defendant, the said defendant, by her counsel, prayed leave to except, and that the court would sign and seal this first bill of exceptions, according to the form of the statute in such case made and provided; and which is accordingly done this fourth day of December, 1852.
R. B. TANEY, [SEAL.]
JOHN GLENN. [SEAL.]
Defendant's second exception. The defendant then offered in evidence the last will and testament of Michael B. Carroll, dated on the 10th of September, 1837, by which, as has been before mentioned, he made his wife, Jane, his residuary devisee. Thereupon, upon the prayer of the plaintiff, the court gave the following instruction to the jury.
If the jury find that the plaintiff, and those under whom he claims, have possessed and held the land called Black Walnut Thicket and Content, described in the deed from Walter B. Brooke and others, to Michael B. Carroll, dated _____ 29, 1842, and that the said Michael B. Carroll died seized thereof August 30, 1851, and the lessors of the plaintiffs are his heirs at law, and that the said land is the same, or part of the same land mentioned in the patents for Black Walnut Thicket and Content, offered in evidence by the plaintiffs, then the plaintiffs are entitled to recover the land mentioned in the said deed, and that the same did not pass to the defendant by the said will of Michael B. Carroll.
To the giving of which said instruction the defendant, by her counsel, prayed leave to except, and that the court would sign and seal this second bill of exceptions, according to the form of the statute in such case made and provided; and which is accordingly done this fourth day of December, 1852.
R. B. TANEY, [SEAL.]
JOHN GLENN. [SEAL.]
Upon this instruction the jury found the following verdict.
Verdict. Who being impanelled and sworn to say the truth in the premises, upon their oath do say, the defendant is guilty of the trespass and ejectment in the declaration mentioned upon the tracts of the land therein stated, called Black Walnut Thicket and Content, in manner and form as the said lessee, John Doe, complains against her, and which is contained within the metes and bounds, courses and distances, set out and described in the paper hereto annexed, and made for that purpose a part of this verdict, being a deed from Walter B. Brooke, of Prince George's county, and State of Maryland, Alexander Middleton and Elizabeth A. Middleton, his wife, of Charles county, and said State, to Michael B. Carrol, dated the 29th January, eighteen hundred and forty-two; and they assess the damages of said John Doe, lessee, by occasion of the trespass and ejectment aforesaid at one dollar; and as to the other trespasses and ejectment upon the other tracts or parcels of land in said declaration, also mentioned, they find that the said defendant is not guilty. (Then followed the deed.)
Upon which verdict the court entered the following
Judgment. Therefore it is considered by the court here, that the said lessee, as aforesaid, do recover against the said Jane M. Carroll his term aforesaid yet to come and unexpired, of and in the said tracts of land called 'Black Walnut Thicket' and 'Content,' with the appurtenances in the district aforesaid, wherein the said Jane M. Carroll is, by the jurors above, found to be guilty of the trespass and ejectment aforesaid; and the sum of one dollar his damages by the said jurors in manner aforesaid assessed; and also the sum of ________ by the court now here adjudged unto the said lessee for his costs and charges by him about his suit in this behalf expended, and that he have thereof his execution, &c.
The case was argued by Mr. Schley and Mr. Alexander, for the plaintiff in error, and by Mr. Nelson and Mr. Johnson, for the defendants in error.
Before stating the points made by the counsel for the plaintiff in error, it is proper to mention that at December term, 1853, of the Court of Appeals of Maryland, a case came before that court, where a bill was filed by the executors of Mrs. Carroll, (who died in 1853,) against the administrators de bonis non of Mr. Carroll and his heirs at law. The question was whether an injunction ought to be granted to prevent the sale of the negroes of Michael B. Carroll, which sale had been ordered by the Orphans' Court of Prince George's county. In the opinion given by the Court of Appeals, in that case, it was held that the will of Mr. Carroll fell within the provisions of the act of the legislature of Maryland, and consequently that the land was devised to his wife.
The points on behalf of the plaintiff in error, in this court, upon the construction of the statute, were,
1. That (apart from the controlling effect of the decision of the Court of Appeals of Maryland upon the said act, and in relation to this very will) the said act, upon its true construction, does include the said after-acquired land.
2. That whatever might be the decision of this court, if the question were undecided, yet the decision of the highest tribunal in Maryland, upon a statute of that State, will be respected by this court as a true and binding construction thereof.
On the 1st point, the following authorities were cited: Broom's Legal Maxims, 246; Fowler v. Chatterton, 19 Eng. C. L. Rep. 75; Culley v. Doe dem. Taylerson, 39 Ib. 307; Freeman v. Moyes, 28 Ib. 103; Angell v. Angell, 58 Ib. 328; Brooks v. Bockett, Ib. 855; 64 Ib. 121; Cushing v. Aylwin, 12 Metcalf, 169; Pray v. Waterston, Ib. 262; Tuck & Magrudur v. Carroll, MS.C.ourt of Appeals of Maryland, at December term, 1853.
On the 2d point: Green v. Neal, 6 Pet. 291; and succeeding cases to the same point.
The counsel for the plaintiff in error also referred to the following error.
The plaintiff below only claimed three undivided parts of the land described in the declaration. By inadvertence the court's instruction asserted, upon the hypothesis of the prayer, the plaintiff's right of recovery of the entirety, and the verdict and judgment were conformable to the instruction.
The points on behalf of the defendant in error, were:
First. That the prayer of plaintiffs in error itself conceded that there was evidence from which the jury might find, as they did find, that the lands were the same as were included in the patents, and that it should therefore have been rejected, because where there is any evidence the jury is to decide on its sufficiency and not the court.
Second. That the evidence before the jury not only tended to establish the facts, but was conclusive.
Third. That the will of Michael B. Carroll did not embrace the lands recovered, because they were acquired after its date; that this was the settled law of Maryland at that date, and was, at the time of his death, also the law as far as wills executed at such a time, when the testator died when this testator died-such a will not being included within the act of Maryland of 1849, c. 229, passed the 22d of February, 1850.
Before that statute, after-acquired real estate did not pass. Kemp's Executors v. McPherson, 7 Harr. & Johns. 320.
Statutes are not to be construed to have a retrospective operation. Prince v. United States, 2 Gallis. 204; United States v. Schooner Peggy, 1 Cranch, 103; Butler v. Boarman, 1 H. & McH. 371.
Mr. Justice CURTIS delivered the opinion of the court.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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