Bay v. Posner, 78 Md. 42

Bay v. Posner

78 Md. 42 | Md. | 1893

Fowler, J.,

delivered the opinion of the Court.

This is one of the many cases which from time to time are brought here on appeal from pro forma orders for the purpose of perfecting titles. The law has, wisely, not required that titles to real estate shall be absolutely perfect and free from every possible doubt. In the case of Gill vs. Wells, 59 Md., 492, after saying that no general rule can be laid down as to what doubts will be sufficient to make a title not marketable,. this language is used: “A threat or even the possibility of a contest will not be sufficient. The doubt must be considerable and rational, such as would *47and ought to induce a prudent man to pause and hesitate; * * * * such as to produce real, bona fide hesitation in the mind of the Chancellor.” With this statement of the genera] rule in view, we will proceed to examine the objections relied on by the appellee to show that the title of the appellant to the property in question is not a good and marketable one:

1. That the grantee’s name is omitted in the granting clause of one of the deeds under which the appellant claims. Not much reliance was placed upon this objection, and properly so, for we can see no force whatever in it as applied to the deed in question from Nesbit to Williamson, dated 18th September, 1810, and'recorded in Liber W. Gt., No. 112, fob 24, &c. It is true that the name of Williamson the grantee is omitted from the granting clause; but it fully and clearly appears from the face of the deed that Nesbit was the party of the first part, and Williamson the party of the other part, and that Nesbit sold to Williamson the lot of ground in said deed described, for the sum of three thousand dollars, and that Williamson was the person who was “to have and to hold the said lot of ground, &c.”

This deed appears to contain the requisites of a good deed even under the requirements of our Code; the name of a grantor and the name of one wTho is “to have and to hold” the estate intended to be conveyed; a consideration, and a description sufficient to identify the premises, and the interest or estate intended to be conveyed. Code, Art. 21, sec. 9.

2. The second objection is, “that the sale of the original fee reversion by the administrator, d. b. n. c. t. a., of Benjamin T. Hynson, under whom the appellants claim title was unauthorized by law and void.” By his last will Hynson devised and bequeathed all the residue of his estate, including his interest in the lot in question, to his children, and then follows this provision:

*48“I hereby authorize and empower my executors, hereinafter mentioned, to sell any part or portion of my estate * * * as they may deem best, and upon such terms as the3r may think proper.”

The purpose of such an authority or power given by the testator to his executor is not doubtful. As it might be, and indeed in most cases, is necessary to sell property, and especially city lots, in order to make division or partition among several tenants in common, as in this case, the power to sell is given to executors to avoid the delay and expense of applying to a Court of Chancery. And while in one sense the language here used may not amount strictly speaking to a direction to sell, yet it is quite certain that the intention of the testator was to direct the sale to he made by the executors, if a sale was or should be made. The executors named in the will were, on their own petition, relieved from the executorship, and one of them, together with the late Orville Horwitz, were appointed administrators, d. b. n. c. t. a.

The circumstances of this case bring it, we think, fairty within the provision of section 288, Art. 93 of the Code, which provides that where a testator directs his real estate to be sold, and the testamentary executor refuses or declines to act * * * * the Orphans' Court shall have power to appoint an administrator, de bonis ■non cum testamento annexo, to execute the trusts of the will, “in the same manner and to the same extent as the executor or executors appointed by will could or might do.”

In Venable vs. Mercantile Trust and Deposit Co., 74 Md., 187, it was held that the intention of the Legislature in passing this section of the Code, “was to confer upon the administrator c. t. a. all the power and authority to sell which the original executor derived from the will. “Any other construction,” it is said in the *49case just cited, “would, force the parties to Chancery proceedings, which it was the object of this Act to prevent.”

(Decided 21st June, 1893.)

3. The third and last objection is, that the appellant is not the exclusive owner of the lot in question. It appears from the testimony, however, that she and her predecessors in title have been in actual possession for more than forty years. And it must be admitted that inasmuch as during all that time they have had deeds for said lot, duly executed and recorded, they have been in under color of title — the descriptions in the deeds with the exception of the alleged error, if such there be, having corresponded exactly with the lines of occupation. Under these circumstances it seems to us unnecessary to discuss the effect of the alleged mistake in the description of the lot in one or more of the old deeds, for as we have often said, and have recently reiterated in the case of Lurman and Fowler vs. Hubner, 75 Md., 271, continuous adverse possession under color of title for at least twenty years, will make a good title, although the title conveyed by the deed be good for nothing, and here we have more than forty years of such possession. But in addition to this long possession under deeds which appear to be perfectly valid, it must be remembered that no claim has been made by any person to any part of said lot, on any pretence whatever — it being suggested by the appellee now for the first time, so far as appears by the record, that some such claim could or might be made. The pro forma decree will be reversed and the cause remanded.

Decree reversed, and cause remanded.

*50

*51

*52A motion was made by the appellee on the 14th of July, 1893, for a rehearing of the foregoing case on the ground that adverse possession did not apply, and that unless the question of conflicting lines was settled by the Court, its decree would not protect the appellee. The motion was overruled.

Eowler, J.,

delivered the opinion of the Court.

The motion for rehearing in this case, made by the appellee, will be overruled. He concedes that there is no difficulty whatever in regard to the title to the lot known as No. 201 North Howard street, which he purchased from the appellant, until after the death of- Benjamin T. Hynson in the year 1818. "When Hynson died he owned the lot just mentioned, and also that immediately adjoining on the north. His administrators sold and conveyed lot 201 North Howard street — lots A and B on the plat marked S. P., No. 1 — to William George and Charles E. Hynson, and on the same day they conveyed to James Broumel the other lot known as 209 North Howard street, and designated on said plat S. P., No. 1, as lots C and D. The conveyances of the first named lot, being the one here in question, appear to be entirely correct, and the appellee does not object to them; but his contention is, that in the deed from Hynson’s administrators to Broumel conveying lot No. 209 North Howard street, while it properly describes that lot, it recites that said lot is “the same lot conveyed by W. H. Hamer to said B. T. Hynson, recorded in Liber A. M., No. 331, folio 532.” And the lot so conveyed by Hamer to Hynson, the tappellee contends, is the same here in controversy — and that this erroneous recital makes the title of the lot No. 207 fatally defective. But we, cannot assent to this view. It is very apparent tlíat the reference to the deed from Hamer to Hynson is a mistake, and the preceding description by courses and distances, conceded *53to be correct, must govern. A Court of equity will not admit the operation of a recital originating in mistake and untrue in fact, and this being so, the erroneous reference to the deed from Hamer to llynson may be treated as though it had not been made. But in addition to this, we think it is apparent from an examination of the title deeds that the view of the appellee is not correct. Lot No. 201 North Howard street was conveyed to Winifred A. Deady in 1804 by the executors of her husband, and, as we have said, the conveyances of this lot •correctly described it, and are free from objection, except so far as they may be affected by the erroneous recital above referred to. The adjoining lot No. 209, the title to which is not here involved, was allotted to Gunning S. Bedford in the partition proceedings of the estate of Daniel Deady in the High Court of Chancery in 1826, and in those proceedings was described as two lots. It is apparent from an examination of the return of the Commissioners in the partition proceedings just mentioned, together with the plat filed therewith (which is also filed in this case, marked S. P., No. 2) and the subsequent conveyances, that the Commissioners intended to, and did in fact, allot to Gunning S. Bedford the whole of lot No. 209 North Howard street, which was conveyed to Broumel by Hynson"'s administrators. Notwithstanding the erroneous recital in the Broumel deed, there is enough in the deeds and plats, together with the partition proceedings in the High Court of Chancery, to show that the Broumel lot (No. 209) commenced at a point 116g feet north from the north-east corner of Howard and Lexington streets, with a front of 24 feet on the east side of Howard street, and a depth of 106 feet, and that it is immediately north of, and adjoining the lot here in question (No. 201) which was sold by the appellant to the appellee. The chains of title to these two lots appear to be perfectly distinct ever since lot 201 was *54conveyed to Winifred A. Deady in 1804 — since which time, certainly for the last forty years, the appellants and those under whom they claim, as we said in the opinion already filed in this case, have had, according to the testimony, continuous adverse possession. And, according to the true construction of the deeds, it appears that the paper-title of the appellants to lot 201 is free from any valid objection.

Motion overruled, appellee to pay costs.

(Decided 9th February, 1894.)