The Maryland Court of Appeals heard a case concerning Notley Rozier's eviction from Beach Neck by Phillip Lynes.
Maryland Court of Appeals
Anne by the Grace of God of England Scotland France
and Ireland Queen Defender of the faith etc.
To the Justices of our Provinciall Court Greeting
Because in the Record and process and rendring of
Judgment in An Action of Ejectment brought some time since by Phillip
Lynes Esqr against Notley Rozier Esqr for A certain tract of land in Charles
County containing A thousand Acres called Beech Neck before the Justices
of our then Provincll Court
Manifest Error as tis said has hapned to the Great damage of the said Notley Rozier (as by his complaint We have
reccivd
Notley Rozier is appealing the judgement against him.
Wee willing that the Errors if any there be should in due manner
be corrected and full and Speedy Justice done to the said partys in this behalf
Do therefore comand You our Justices aforesaid that the Record and
process of the Action and Judgment aforesaid togeather with all things that
relate to the same before his Excellency our Governor and our honoble
Councill at their next sitting at Annapolis to hear Appeals and Writts of
Errour in September next under Your hands and Seales distinctly and openly
you send that inspection being thereinto had We may cause to be done what
According to right and the laws and Customs of our province ought to be
done in the premises hereof You are not to faile Witness our self at Annapolis aforesaid the 29th day of June in the fourth Year of our Reigne Annoque Dmi 1700
Jno Freeman Regt in Cancry
The previous case heard in 1700 is summarized.
In the Records and Proceedings of her Majesty's Provinciall Court of the Province Aforesaid amongst other things it is thus contained Vizt
At A Provinciall Court of our Sovereigne Lord the King held at Annapolis the Sixteenth day of Aprill in the twelfth Yeare of the reign of his
said Majesty King William the third etc. Anno que Domino 1700 and those
untill the third day of May following.
Were present:
The Honoble Richd Hill Esqr chief Justice;
Majr Thomas
Smithson;
James Sanders Esqr;
Phill Hoskins Esqr;
James Round Esqr;
Jno
Hawkins Esqr;
Jno Pollard Esqr;
Thos Greenfield Esqr, Justices
Phillip Lynnes leased Beach Neck to John Ward-deceased in 1697 for a term of 5 years and he was evicted even though the term had not expired.
John Newton late of Charles County was attached to answer unto John
Ward of A plea wherefore by force and Arms into the
Messuage [equates to a dwelling-house and includes outbuildings, orchard, curtilage or court-yard and garden] and dwelling
house two Tobacco houses and other out houses and one thousand Acres
of land and pasture with the appurtenances in Charles County
which Phillip
Lynes of the County aforesaid Gentn to the said John Ward did demise
[leased] for A terme which is not yet past entred and him from his farme aforesaid
did Eject and other harmes to him did to the Great damage of him the said
John Ward and Against the peace etc.
And Whereupon the said John Ward by William Dent his Attorney complaineth that whereas the said Phillip Lynes upon the tenth day of May
in the Year of our Lord 1697 At Port Tobacco in Charles County aforesaid
did demise [leased] unto him the said John Ward the lands aforesaid with the appurtenances aforesaid called Beach neck
The property was described.
lying Scituate and being in Charles
County aforesaid
on the east side of the Main fresh of Port Tobacco creek
Beginning at a Marked Gumm the bounded tree of Walter Bayne called
Derum freehold bounding
on the North with the said Derum Freehold on
the East with A line drawne South from the said Gumm for the length of
three hundred and twenty perches to A bounded Hiccory
on the South with
A line drawne West from the said Hiccory for the length of Two hundred
perches to A bounded poplar that intersects a parralell drawne from the
first bounded oak of Derum Freehold
on the west with the said parralell containing and laid out for One thousand Acres more or less
The terms of the lease were described.
To have and to
hold and occupy the same unto him the said John Ward and his Assignes
from the said tenth day of May unto the end and terme of five Years from
thence next ensueing fully to be compleat
John Ward took possession of the premises???
and ended by Virtue whereof the
said John Ward into the Messuage land and premises aforesaid entred and
was thereof possess'd and being thereof so possessd
the said John Newton Afterwards (that is to say) the twentyeth day of May aforesaid at Port Tobacco aforesaid into the Messuage lands and premises aforesaid in forme
aforesd demised for the terme aforesaid Which is not yet passd entred and
him from his farme
John Ward was evicted by John Newton.
Aforesaid did Eject and other harms to him did doe to
the great damage of the said John Ward and against the peace etc. where-upon the said John Ward saith he is the worse and hath damage to the Vallue
of One hundred and Fifty thousand pounds of tobaccoe and thereof he
brings this Suite etc.
Wm Dent
Jno Doe
Richd Roe
The law is clarified
Unless the tennant in possession of the premises or he or they under
whom he claims do at the next Provinciall Court [183] come and appear to
this declaration and make him her or themselves defendants hereunto And
According to rule of Court confess lease entry and Ejectment and insist on
the title only the defendant in this declaration named will confess Judgment
and possession will accordingly be deliverd to the plantiff
Moses Jones is now in possession
To Moses Jones tennant in possession of the premises.
Notley Rozier said he was not guilty of trespass.
Now here at this day to witt the Eighth day of November 1698 came
into the Court Mr Notley Rozier by Robert Gouldesborough his attorney
and being admitted defendant hereunto the said Notley Rozier by his said
Attorney comes and defends the force and Injury when etc. and saith that
he is in no wise Guilty of the trespass and Ejectment above mencond and
imposed upon him in manner and forme as the plantiff above in his declaration against him hath complained and of this he puts himself upon the
Countrey
And the plantiff alsoe Command was therefore given the Sherriff
of Ann Arundell County that he cause to come here twelue etc. by whom etc.
and who neither etc. to recognize etc. because as well etc.
The Jury finds for Philip Lynes.
Now here at this day to wit the Eighth day of November aforesaid came
the said party's by their Attorneys and the Jurors of that Jury being calld
likewise came to witt who being elected tryed and Sworne to say the truth in the premises do say wee of the Jury find for the plantiff.
Notley Rozier moves for a stay and is granted one until the next court.
And thereupon
came the said Notley Rozier by his said Attorney and mooved the Court
here in stay of the Judgment aforesaid upon the Verdict aforesaid Which
was granted by the Court here and day is further given untill the next provinciall Court
At the next court in 1699, Notley Rozier gave his reasons why the judgement was not correct.
At which said next provintiall Court to Witt the Nineth day of May 1699 came the said party's by their Attorneys Aforesaid and the said Notley by his said Attorney Exhibitted to the Court here his reasons for Arrest of
the Judgment aforesaid which followeth in these words Vizt
The first reason is that Lynes bought the land from John Douglas who did not have the right to sell the land because he only had it in trust.
1th The tract of land in Question is no other ways claimed by Lynes
than by and under the title of John Duglass
and it appears by the said Duglasses grant that he has it no other way then in trust and to the uses mentiond in Bridgett [Yowkins] Heards will which trust does not give him such a property therein as to be capeable to make an absolute sale thereof as he has done
to Lynes
therefore the said Lynes title under the said Duglass is naught and
not Sufficient to ground an Action upon against the said Rozier wherefore
no Judgment ought to be entred upon the said Verdict for Lynes.
[184]
The second reason is that even if Douglas has title it would only be for one fourth of the land.
2dly If the said Duglass has any title in his owne right to the said
land it can be to no more then one fourth part
thereof the one half being
bequeathed to Wm Heard [William's son]
And the one half of the other remaining half to
Mary Yonkins [William's wife
and Duglass grant being to themselves of the Will gives him
at most a property to no noe more then A fourth part of the said land
which he relinquised to Roziers father (or if he had not he cannot have
Judgment upon this Verdict for the whole land nor for any part in particular noe division being ever made between him and the other legatees and
there being but an estate for life given by the will the grant to Duglass for
the uses thereof ) tho the word heires be put in does not enlarge the estate. R: Gouldesborough
Thereupon by consent of both partys this cause was further continued.
They returned to court and and the decision was not overturned and damages are ordered.
And now here at this day to witt the 25th day of Aprill in the 12th Yeare
of his Majestys reigne etc. Anno Dni 1698 came the said partys by their Attorneys aforesaid and the reasons in Arrest of the Judgment aforesaid was
i Yemkin, according to Land Office records. here read and heard and by the Court here maturely deliberated
It is the
opinion of the Court here that the reasons aforesaid by the said Notley
Rozier Assigned in Arrest of the Judgment are not sufficient to Arrest or
stay the same.
Whereupon it is Considered by the Justices here that the said John
Ward lessee of the said Phillip Lynes recover against the said Notley Rozier
the now defendant his terme Yet to come of and in the said One thousand
Acres of land calld Beach neck with the premises and appurtenances there
unto belonging and that his Majestys Writt of habere facias possessionem [a writ of execution in ejectment] Accordingly.
And it is likewise consider'd That the said Phillip Lynes
recover against the said Notley Rozier the Summe of Two thousand Seaven
hundred and twelve pounds of tobaccoe for his costs and charges in this behalf laid out and Expended.
Thereupon came here into Court the said Notley Rozier by his attorney
and prayd an appeale from the Judgmt of this Court to the High Court of
Appeales which was granted him giving Securely for prosecution of his said
Appeale according to Act of Assembly in that case made and provided.
This Record certifyed in obedience to her Majesty's Writt of Dimunition per me
[Loco Sigil Provincll]
Jno Beale Clr Proll Court
Notley Rozier continues to argue for the following reasons.
[185] And the said Notley Rozier by Robert Gouldesborough his Attorney
comes and saith that as well in the record and process as also in the rendring
of Judgment aforesaid it is Manifestly erred.
He didn't have enough time.
1th In this that there was not any Imparlance [extension of time for a party to a lawsuit to further plead] given to the defendant
as by law there ought to have been
There weren't enough jurors.
2dly It is also erred in this that the Venire facias [a judicial writ directing the sheriff to summon a specified number of qualified persons to serve as jurors] is not awarded in the
present tense as by law it ought to be.
The jurors names were not properly recorded.
3dly It is Erred also in this that the Jurors Names are not entred upon
the Record as they ought to be.
The original owner, William Heard, did not receive a grant before he died in 1664/65.
4thly One William Heard late of this province takes up by Virtue of
A Warrant duely obtaind from the Lord Baltemore the proprietary of this
province A certaine tract of land within the Same but before he could procure his Lordships grant for it he dyed first making his last Will and testament in Writing by Which he devises his Estate to his Wife Bridget Heard
in these Words following Vizt
William left everything to his wife Bridget.
Item I give and bequeath unto my wife Bridget
Heard all my Estate reall and personall making her my whole Executrix.
Bridget died soon after and left everything to her son, William Heard, her sister, Mary Yowkins and William Douglas, Jr.
Bridget Heard soon after dyes first making her last will and Testament
in Writing wherein she makes these bequeasts.
Item I give and bequeath to my sonn William Heard the one half part
of my estate both reall and personall
Item I give and bequeafth to my Sister
Mary Yemkins [Yowkins] and John Duglas Junr and each of them their parts of the
estate upon demand to be deliverd them after my decease.
John Douglas, Sr. was granted the land, but the grant only said it was for them to have and hold.
John Duglass the father of John Duglass Junior applyes to the Lord Baltemore to supply the defects of both the Wills and to make an Estate in
fee simple of the land therein devised to the Severall devisees therein mentioned
whereupon his Lordship grants to the said Dowglass the father and
his heires the said Tract of land to the uses mentioned in the said Bridget
Heards Will by the premises or first part of the grant
but in the Habendum [clause in a lease which defines the type of rights to be enjoyed by the lesse] says nothing of the uses aforesaid but only to have and to hold to him the
said John the father his heires and Assignes for ever.
All the people who had the land died.
All the Devisees aforesaid Except the said John Dowglass Junr, dyed in their Minority without any
heires that have ever yet appeared
The property reverted to the state and it was Notley Rozier's father, Benjamin was put in possession of the Beach Neck.
Whereupon the said Lord Baltemore concieving that the said land reverted to him by escheat not knowing then but
that John Dowglas Junr was dead put Mr Benja Rozier father of the said
Notley in possession thereof with a promise that he would grant it to him
and his heires
Benjamin Rozier died before he received a grant.
But the said Benja dyed before his Lordship's grant [186] past
unto him And the said Notley his son and heir tooke possession of the said
land and holds the same still by his Lordships grant
John Douglas, Jr. sold the land to Phillip Lynes.
Now appears John Dowglass Junr pretending that he as heir to his said
father the grantee aforesaid has a right to the whole notwithstanding the
grant being to the uses in the said Bridgetts Will mentioned and conveys
the same tract to Phillip Lynes.
Phillip Lynes evicted Notley Rozier and the jury supported him.
Phillip Lynes under the title of the said Dowglass Junr Ejects Notley
Rozier nd upon tryall the Jury gave Verdict for him whereupon motion
was made to stay the Judgment And the following reasons were offerd in
stay thereof
Because Douglas did not have the power to sell it.
1st The tract of land in question is no otherwise claimed by Lynes then
by and under the title of John Dowglass and it appears by the Grant that
he has it no otherwise then in trust and to the uses of Bridget Heards will
which trust does not give him such A property therein as to be capeable of
Making an absolute sale thereof as he has done to Lynes therefore the said
Lynes title under the said Dowglass is naught and not Sufficient to ground an
Action upon agt the said Rozier wherefore no Judgment ought to be entred
upon the said verdict for Lynes which reason was by the provinciall Court
overuled and therefore Error.
And if he did Douglas only had 1/4 of the prperty.
2dly If the said Dowglas has any title in his own right to the said Land
it can be to no more then one fourth part thereof the one half thereof being
bequeathed to Wm Heard and the one half of the remaining half to Mary
Yowkins and Dowglas's grant being to the uses of the Will etc. gives him at
most A property to none then A fourth part of the said land therefore he
cannot have Judgment upon the Verdict for the whole nor for any part in
particular no Division being ever made between him and the other Legatees.
And there being but an estate for life given by the will the grant to Dowglass
to the uses thereof tho the word heires be put in does not enlarge the estate
which was in like manner overuled and therefore Error.
Notley again asks that he be restored to the property.
For all which and other the Manifest errors in the Record and proceedings of the said Court as alsoe in the rendring of the Judgment the said Notley
prays that the same be reversed and set aside And he to what he hath thereby
Lost may be restored. Gouldsborough
And the said Defendants by their Atfy aforesaid saith that forasmuch
as the Writt of the said Notley Rozier Specifies At A Court of his Majty etc.
Whereas it should have been his late Majty King William etc. the Record
thereupon transmitted to this Court is not according to the tenour of the
said Writt and therefore prays the Writt aforesd may be quasht.
In 1710, the court ruled in favor of Noteley.
And now here at this day to witt the twenty Sixth day of July Anno Dmi
1710 all and every the proceedings aforesaid being read heard and by the
Board here fully understood
It is the Judgment of the whole Court that
the Record aforesaid is not duely returned According to the tenour of the
said Writt.
And it is thereupon considerd that the Writt aforesaid so as aforesaid
brought and every matter and thing therein contain'd be quasht disanulld
and all togeather held for nought etc.
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