67 Md. 139 | Md. | 1887
delivered the opinion of the Court.
This is the second appeal in this case. On the first appeal it was decided by this Court, that the children of
If Hiss had remained in possession of the whole tract,, it would have been most just and reasonable, that the portion now claimed hy the Worthingtons and Knapps,, should have been allotted to them out of the unimproved portion; provided this division could have been made without injury to their interests. The sales by Hiss-could not increase or diminish any rights which those persons had, who were co-owners with him of the whole-tract-. These co-owners not being bound by those sales, have a right to proceed with their partition, as if they had never been made. They have not, however, any greater rights than they would have had if Hiss had kept the property in his own hands. It was decided when this, cause came before this Court for the first time, that as the-present possessors of the property were innocent bona fideholders by virtue of a judicial sale,' they would be entitled to a proportionate allowance for the value of all beneficial permanent improvements of the property, and also for taxes and insurance which have been paid by fhem. If the portion now claimed should be assigned out of the improved property, and then an inquiry should be instituted to ascertain the amount to he allowed for improvements and other expenditures proper to be al
The investigation would embrace a great number of details, about which it would he vain to expect certainty or accuracy. The tract originally contained a fraction more than seven acres. In the course of fifty years, it has passed from the uses of rural life, and has been adapted to the requirements of a large city; more than one-half of.it being occupied by valuable residences. It would be a task of exceeding, and almost hopeless difficulty, to estimate the beneficial expenditures which have been made on so large a body of land, in its long progress through so great a change. The simple, ready and eligible mode of making the division, is to take the part now claimed from the tmimproved portion of the tract, provided it is practicable. This portion amounts to nearly one-half of the whole tract in area, and about forty per cent, in value. The combined interests of the Worthingtons and Knapps come to seven thirty-sixths of the whole tract. The property fronts on Madison avenue, McOulloh street and Druid Hill avenue. It is well known that the customary and almost invariable mode of valuing ground in the City of Baltimore, is by the front foot. Five wit-, nesses have been examined, who have made an estimate of the value of all this property by the front foot. While they differ considerably in their valuations of the property, they agree pretty nearly as to the proportions of value between the improved and the unimproved. Two of them put the unimproved portion at forty-one per cent, of the whole; two at about forty per cent., and one at forty-two per cent. Now the portion to he set off is about twenty per cent, of the whole. There can be no difficulty in laying this off. The whole property is valued at so much a front foot, the value of the front foot varying on the different streets. So this portion may be justly and fairly ascertained, even to the fraction of an inch, and
It may be said that each one of these claimants is entitled to his or her portion in severalty. They have prosecuted their suit as the holders of a common interest, and have been so regarded by this Court. When the bill was dismissed by the Circuit Court, the children of Mrs. Knapp were not in a condition to appeal; for the reason that they had been made defendants. This Court, however, perceiving that the litigation was for the common benefit of all these claimants, gave them the benefit of the appeal, without regarding their position on the record, which would have precluded an appeal on their part. When the portion to which they are entitled collectively has been allotted to them, they can, by petition in this cause,
The conveyances by Hiss contained only special warranties. A question has been presented and argued relating to the duty of contribution as between him (or his devisees) and the persons who purchased and leased from
It will be seen that we differ from the learned Circuit Court. — Its decree must be reversed, and the cause remanded for further proceedings in accordance with this opinion.
Decree reversed, and cause remanded.
Subsequently, Bryan, J., delivered the following additional opinion of the Court:
The Court has been requested by the counsel for the Hiss devisees to state the application of the language of the opinion to the question of contribution on the part of the lessees from Hiss. This request appears to us in all respects reasonable. It is of course much to be desired that there should be no doubt about the opinion of the Court otl questions involved in its decisions. The majority of the Court hold that the entire tract should contribute to make up the value of the portion which shall be taken from the unimproved land, and that to make up this contribution the value of the land must be estimated without regard to the improvements, and that every portion of the tract must be charged with a sum of money proportioned to its value. It is also held that the responsibility of the devisees of Hiss is dependent upon, and limited by, the covenants contained in his conveyances. The deeds and leases are not in the record, but we supposed from the argument on both sides that the Court
It is competent for the Circuit Court to cause the partition -to be made by commissioners, and to direct them to ascertain the sums to be assessed on the different portions of the tract. When these assessments have been ratified by the Court, it can compel payment by sale of the property assessed.
I am directed by the majority of the Court to make the foregoing addition to the opinion heretofore filed. I do not, however, wish it to be understood that my own personal views have undergone any change.
(Piled 39th April, 1887.)