This is an appeal from a judgment against the appellant, as defendant, in an action brought by the appellee in the Circuit Court for Anne Arundel County.
The declaration contains two counts. The first count avers that the defendant failed to have recorded among the land records of Anne Arundel County a deed from George Edwards to the plaintiff which the latter had left with him for that purpose and which he had promised to have so recorded, "whereby the plaintiff is deprived of his property." The second count avers *Page 122 that in March, 1902, the defendant without the knowledge or consent of the plaintiff procured to be recorded in said land records a deed from George Edwards to the plaintiff purporting to convey a certain parcel of land ("not describing or identifying it") lying in the third election district of said county but that the deed "did not contain in its description the property that was intended to be conveyed" by said Edwards to the plaintiff and that both Edwards and the defendant were aware that the deed did not contain the property to be conveyed, "whereby the plaintiff has been deprived of his property."
To this narr. the defendant pleaded that he did not commit the wrong alleged.
At the trial of the case the plaintiff offered his own and other evidence tending to prove that in September, 1896, he had bought for $25 from one George Edwards, who had since then died, a piece of land containing a little over two acres in said third district lying in front of Edwards' house and extending from the intersection of his private road with the Marley Neck Road up to Frank S. Revell's land. That the land so purchased by him had been measured off for him by the grantor's son Oliver and a surveyor named Mancha and that he had therefore entered upon and had ever since retained possession of it without any objection from Edwards and that he had erected a house on it, and had also sunk a well on the part of it lying near Revell's line. That having paid for the land he went with Edwards to the office of the defendant, who was a Justice of the Peace, and attended to Edwards' business, to have a deed drawn for the land, and that the defendant then gave him a receipt as follows: "Received October 3rd of Jacob Gipson a deed from George Edwards to the said Gipson for 2 acres of land more or less said deed to be recorded on or before the 2nd of April, 1897."
There is no evidence that a deed for the land had in fact been executed to the plaintiff when the receipt was given. On the contrary the plaintiff himself testified that the defendant sometime afterwards told him that there was some trouble about his getting a deed on account of Edwards' wife, but that the receipt he had given him was as good as a deed. *Page 123
The plaintiff further offered evidence tending to prove that in the summer of 1902, one Carter H. Colston had filled up the plaintiff's well and had notified him not to trespass on his, Colston's land. That he then upon inquiry found out that in February, 1902, Edwards had, by a deed prepared by the defendant, sold for $100 to Colston, thirteen acres of land including one acre, lying next to Revell's line, of the land sold in 1896 to the plaintiff. And further that in March, 1902, Edwards had also executed a deed, prepared and recorded by the defendant, to the plaintiff for only a portion of the land sold to him omitting therefrom the one acre lying next to Revell's line. The plaintiff also testified that the well was worth $100 to him and the acre of land was worth $50.
The defendant offered evidence tending to prove that Edwards did not sell to the plaintiff the acre of land lying next to Revell's line and that the deed actually executed by Edwards to the plaintiff conveyed all the land which he had sold to him.
The plaintiff offered no prayers, but the defendant offered three, all of which were rejected by the Court.
The defendant's prayers asked the Court to instruct the jury that the plaintiff was not entitled to recover in the case because, as asserted in the first prayer, there was no evidence by which the jury under the pleadings in the case could assess any damages suffered by the plaintiff; and because, as asserted in the second prayer, there was no evidence legally sufficient under the pleadings in the case to entitle the plaintiff to recover; and because, as asserted in the third prayer, the plaintiff under the undisputed evidence in the case had not been deprived of the land in the declaration mentioned.
These prayers of the defendant should have been granted. The injury for which the plaintiff sues, he declares in his declaration, arose from having been deprived of his property. Yet by his own testimony he has been in possession and enjoyment of the lot, which he insists that Edwards sold him, ever since the date of its purchase in 1896. It is true that he avers, in the second count of the declaration, that the deed *Page 124 which Edwards executed to him did not contain in its description the property which he purchased, but he did not offer in evidence either the deed or a copy of it so that the jury could see what land it did in fact convey. Nor does the record contain any evidence that the defendant induced Edwards not to convey the correct lot to the plaintiff or that Edwards was ignorant of the contents of the deed to the plaintiff when he executed it.
There is no evidence that the defendant was employed or paid by the plaintiff to prepare the deed. The plaintiff himself testified that the defendant when he drew the deed was attending to the business of Edwards, the grantor, and there is no evidence that he did not draw it according to the instructions of his principal.
Nor is there any evidence connecting the defendant with alleged trespass of Colston in filling up the plaintiff's well, nor could damages for that trespass be recovered under the pleadings in this case.
Whatever may be the equitable rights of the plaintiff against Edwards and those claiming under him relative to a correction of the alleged erroneous deed, there is no legally sufficient evidence in the record to hold the defendant for damages under the pleadings in the case.
The judgment appealed from must be reversed.
Judgment reversed with costs without awarding a new trial.
(Decided December 4th, 1903.) *Page 125