30 Md. 55 | Md. | 1869
Lead Opinion
delivered the opinion of the Court.
To fully understand the rights and relations of the parties, it is fi.rst important to examine the bond of conveyance from Brown and Lancaster, to Charles Crook, executed in the year 1826.
By the recitals of that bond, it appears that, for the consideration of $1,214, to be paid out of the separate funds of Mrs. Crook, the wife of the obligee in the bond, the obligors agreed to convey the estate bargained for; to Charles Crook and his heirs, in trust for Mrs. Crook, the wife, as therein mentioned. That but a portion of the purchase money was paid at the time of the execution of the bond, and for the balance the individual promissory notes of Charles Crook were passed, and upon the payment of which, the conveyance was to be made. • The- trusts, declared in the condition of the bond, upon which the estate was to be conveyed, were, that Charles |Crook, the obligee, and his heirs, should' hold the property in
By the bond an option was given the obligees to discharge the whole amount of purchase money, by the payment of $20,000 in instalments payable at certain times, or by payment of $16,000, if paid at shorter periods. And, by the mortgage, it was stipulated, that, until default made, the mortgagors should retain possession; and the first instalment, under an election to take advantage of the longest credit, was due the 20th of September, 1835; the interest on the whole sum remaining, due to be paid quarter-yearly, dating from the 20th of September, 1834. Judge Glenn died in the year 1853, and Mrs. Crook in 1864.
h The bill wás filed on the 27th of May, 1864, by the children of Mrs. Crook, who were to take after her death, in the /event that she did not dispose of the estate in her lifetime, ! against the heirs of Mr. Glenn, to obtain a decree for the - surrender and cancellation of the mortgage, and the delivery of possession of the mortgaged premises. The gravamen of the bill upon which the decree is sought to be founded, is, that after the execution of the mortgage, and the taking possession of the property purchased of Glenn by Crook, the latter “put large improvements thereon, and otherwise increased the value of the same; but, about six months after-wards, in the year 1835, and before the first payment became due, he gave up the purchase, with the consent of said Glenn, and returned the property to said Glenn, when it was more valuable than when it went into the hands of the said Charles Crook; and the said Glenn held and enjoyed the same from that time to the period of his death, in 1853, and the same has been since held by his legal representatives.” And it is further alleged, “ that if the said mortgage was ever of any validity, by the return of said property, and giving up the sale and purchase for twenty thousand dollars, the mortgage, that had been given to secure the said sum, was also annulled and abrogated; but the said John Glenn, sometime after the execution of the mortgage, got possession of the said mortgaged premises, and notwithstanding the abrogation of the arrangement aforesaid, and return to him of the property he had undertaken to sell, he has held both of said properties ever since, and his heirs and representatives, being in posses
It will be observed, that neither the time when, nor the circumstances, or understanding, under which the possession was obtained by Glenn, of the mortgaged property, are alleged with any degree of certainty; nor are they more satisfactorily shewn by the evidence. The defendants, by their answer, positively deny that there ever was any abrogation whatever of the contract of sale and mortgage, by means whereof it was ever intended that the mortgaged property should be released from the operation of such mortgage; but, on the contrary, aver and insist that certain proceedings that were had, and which terminated in a decree for the foreclosure of the mortgage, establish conclusively, that Glenn insisted upon, and that Crook and wife did not dispute the continuing force and obligation of such mortgage. The proceedings referred to were instituted by Glenn, and the Union Bank, in Baltimore County Court, against Crook and wife, and others, in 1839, and the decree was passed in 1844. The decree, however, appears to have been lost, and its terms and character are not shewn. The defendants, in their answer, rely, as defence, upon this decree; and they also rely upon adverse possession, of more than twenty years; and upon the great lapse of time before claim made by the present bill.
Upon this state of case, two questions arise: First, whether the mortgage contract was, in point of fact, ever abrogated and annulled; and Secondly, if so, whether the adverse possession and lapse of time form a bar to the relief sought by the present proceedings.
1. At what precise time, or under what particular circumstances, the property mortgaged passed into the possession of Mr. Glenn, does not appear; but as there was a covenant for possession by the mortgagors until default made, and default occurred on and after the 20th of September, 1835, we may presume, in the absence of definite evidence upon the subject, that Glenn took possession after that time. Mr. Charles
We might stop here, and affirm the decree of the Court below; but we propose to examine briefly the second question, which we think equally conclusive against the appellants as the first.
2. Then, as to the second question, whether such adverse possession as is shown to have existed, constitutes a bar to the relief sought. And, in regard to the possession of the premises, whatever uncertainty may exist in other respects, there is no question but that they were in the exclusive adverse possession of Mr. Glenn, and those representing him, for a period of more than twenty years before this suit was instituted. This is shown by Crook, and also by Hart, a witness examined on the part of the appellants. Indeed, it is plainly admitted by the allegations of the bill. As matter of fact, therefore, it is not in issue. The question is as to the legal consequence of the fact thus plainly appearing.
And in discussing this question of adverse possession, as a bar to the relief prayed, we must bear in mind, that by the bond of conveyance from Brown and Lancaster, before referred to, Charles Crook was sole obligee, and by the declaration of trust therein, was sole trustee for his wife and children. He occupied the position, therefore, not only to assert the legal remedies on the bond, as purchaser of the property in question, but, as trustee, became the proper party to protect and defend it against all adverse claims that might be made thereto. Such was the relation that Crook bore to the property in controversy, at the time and since the date of the mortgage to Glenn.
That it was competent to Mrs. Crook and her husband to make the mortgage, we do not understand to be controverted. The wife’s general power to dispose of the estate absolutely, included the power to incumber it by mortgage, though it be for the debts of her husband. The cases of Price & Nisbet vs. Bigham’s Ex’rs., 7 H. & John., 296, and Demarest & Wife vs.
In this case, however, the bill is not filed for redemption, but is for a cancellation of the mortgage, and a surrender of the premises; and if upon a bill to redeem, the adverse possession, as Ave ha\'e seen, would form a bar to relief, a fortiori will it bar relief on the present application. The bill states the possession to haA7e been considerably more than twenty years, and assumes it to have been adverse to the parties entitled, from the time of ‘the alleged surrender and abandonment of the contract of purchase of the factory property, which is supposed to have been in 1835 or 1836. Upon this statement and assumption of the bill, if true, the bar, by analogy, to the relief sought, is complete and conclusive, unless there be something in the case to relieve it from the operation of the lapse of time. And it is supposed, that because the property in controversy Avas trust property, or because there Avas a trust connected with it, for the benefit of Mrs. Crook and her children, therefore the statutory bar, by analogy, does not apply. It is true, that formerly an opinion prevailed, that trusts estates were not within the statutes of
But it has been contended that because the cestui que trust, having a life estate in the property, was a feme covert, and therefore under disability to sue, she was not affected by the running of the statute of limitations; and that as her children, taking in remainder, could not sue until the termination of the preceding life estate, the defence of adverse possession cannot be allowed to prevail against them.
This position would be very tenable if there had not been a competent person in existence all the while as trustee, to represent the cestuis que trust, and their rights and interests in the estate. Where such is the case, the statute bars as effectually as if there existed no disability in the cestui que trust. It was so decided by Lord Chancellor Talbot, in
The reasoning of that case applies with full force to this; and though it was a case in which the rights of an infant were concerned, still, the principle of it is equally applicable to the case of a feme covert. The trustee being competent, and having the right to sue, but failed to do so, and allowed a period of time to elapse greater than that prescribed for limiting the right of entry at law in cases of legal title, without any recognition of the rights of the cestuis que trust on the part of those holding the possession, the bar Avas complete at the time of the institution of this suit; and, if the right were otherwise clear, this defence of lapse of time would be fatal to the claim of the appellants.
We shall therefore affirm the decree dismissing the bill, but without costs to the appellees.
Decree affirmed.
Dissenting Opinion
delivered the following dissenting opinion:
Begretting to differ, in some respects with my brethren, in the view they have taken of the merits of this case, I deem it proper to record my dissent, with a brief statement of the considerations that have affected my judgment.
Whilst I do not accord in the conclusions as to the facts and the law applicable thereto, under the first question presented in the opinion of the Court, I much more differ in the results under the second. There is no doubt the laiv is well established, that limitation operates as a bar to relief in equity
That although in the case of a mortgage the equity of redemption may be barred by lapse of time, the possession of the mortgagee, claiming to hold adversely, can give him no greater rights than a stranger or disseizor holding possession. In this case the fact of Mrs. Crook and her husband, the one cestui que trust the other trustee, having by an authorized mode executed the mortgage to Mr. Glenn, which she was competent to make in that form and which was binding upon her by reason thereof, ought not to affect her interest beyond the legal scope and effect of that instrument. Her disability as a feme covert prevents limitation from issuing against her during its continuance; and Mr. Glenn, who had notice of the trust estate and the equitable interest of Mrs. Crook, the cestui que trust therein, was entitled to no right against her from adverse possession. It by no means follows, because he was rightfully in possession as mortgagee under conveyance from her as well as her husband, and by her consent in default of payment of the mortgage debt, that his possession however long continued during her coverture, although not accounting with the trustee for rents and profits, coixld operate to establish a title in him in the same manner and to the same extent
From the character of this case I do not perceive that there has been any laches on the part of the complainants in the prompt assertion of their rights, after the death of their ancestor Sarah Ann Crook. Limitation relied upon by the respondents as a bar to recovery, ought -not to be allowed, because the disability of Sarah Ann Crook as a feme covert, protected her against such defense. In the absence of a foreclosure of the mortgage, the fact of thé return, acceptance and re-possession of the factory property by Mr. Glenn, the ancestor of the respondents, the conveyance of which property to Crook, as trustee for his wife, was the consideration of the mortgage and to secure the payment of which the same was given, and the filing of the bill to foreclose the said mortgage, and the dis- ' continuance of any further proceedings thereon, the institution of the suit at law for the recovery of the mortgage debt and its abandonment, with the entry, “ off with costs,” 2d September, 1845, are facts sustaining the theory of a waiver or some abrogation of the security of the mortgage, in the absence of any satisfactory proof to the contrary. The mortgage from Crook and wife under such circumstances, should be treated as void and inoperative to affect the rights of Sarah Ann Crook. The property embraced therein should be released therefrom and restored to the complainants, together with