| Md. | Nov 12, 1863
delivered the opinion of this Court:
The subject of controversy in this case is the title to a small piece of ground forming a part of the “west half of lot No. 55,” in the town of’Frederick. There is no dispute between the parties about locations, nor about any of the facts material to the decision of the case; they both claim title from the same proprietor, and as the appellee’s deed is the elder, Ms title must prevail over that of the
The whole question therefore turns upon the true construction of the deed from John Baltzell and wife to Abner •Campbell, dated the twenty-second day of September 1852, which conveyed a parcel of land described as follows:
Beginning for the same on Patrick street, “at the division line between lot number fifty-five and lot number fifty-six, and running thence north with said division line one hundred and eighty-six feet six inches, thence eastwardly on a line parallel with Patrick street thirty feet, thence southward on a line parallel to the division line between lots number fifty-five and fifty-six, one hundred and eighty-six feet six inches to Patrick street, thence with Patrick street thirty feet to the beginning.”
At the time the deed was made the grantors owned the whole of the west half of lot No. 55, extending from Patrick street on the south to Church street on the north. By a deed afterwards made on the 31st day of October 1854, from John Baltzell’s executors to A. B. Hanson, (the appellant,) there was conveyed to the grantee all the lot or parcel of lot owned or occupied by John Baltzell at the time of his death, marked or distinguished on the plot of the town of Frederick as No. 55. Other contiguous lots fronting on Church street were embraced in the deed, but it is not material to refer to them.
It is obvious from the descriptions in the deed, that the parcels conveyed to the appellee and the appellant respectively must touch each other somewhere between Patrick and Church streets, the northern line or boundary of the former forming the southern boundary of the latter. Where that line is properly to be located, forms the only subject of controversy in the case; and that depends upon the true point of beginning of the appellee’s lot, which must be determined by the true construction of the deed of the 22nd of September 1852.
The deed fixes the beginning “on Patrick street at the
In support of this view the appellant has referred to a number of cases, in which it has been hold that “in a sale of land bounded by a highway, the presumption is of an intent to pass the coil to the centre of the highway, and it will so pass unless the highway be clearly excluded.” The cases on this subject have been collected by the American Editors of Smith’s Leading Gases, and will be found in their note to the case of Dovaston vs. Payne, in the 2nd volume, 216, &c.
We have examined the cases and find some conflict of authority upon the very interresting question therein considered. We do not remember any case in our own State, where that particular question has been considered or decided, nor is it necessary for the purposes of this appeal that we should now express any opinion thereon. It has been settled in Maryland, that “where a party sells property In a city hounding it by streets, such sale implies necessarily a covenant that the purchaser shall have the use of such streets. White vs. Flannigcm, 1 Md. Rep., 525. Moale vs. Mayor & C. C. of Balto., 5 Md. Rep., 314.
But in the view taken by this court of the present appeal, these questions are not involved. We are not called on to decide what title or estate the land forming the bed of Patrick street may have passed to the appellee under the deed from Baltzell and wife. The question for us to decide is the true location and extent of that part of lot 55, described in and conveyed by the deed.
Our duty is to carry out the intent of the parties, and it has been well said, that “in order fairly to ascertain the real intention of the parties, the Court should place itself in their situation, consider the proper import of the description in the deed, the subject matter of the conveyance, and all the surrounding circumstances referred to in the deed;”
Here the subject matter of the conveyance was a lot upon a public street in a city, and described by the number by which it is designated on the plot of the town, on which plot the public streets and the “lots” thereon situated are marked and defined by distinct lines and boundaries.
According- to the description, the land conveyed begins on Patrick street at the division line between the lot conveyed and the next contiguous lot. The true import of which we understand to be, the point where that division line intersects the marginal line of Patrick street. The deed being made with reference to the plot of the town, the beginning must be construed to be at the point where the lot as designated on the plot abuts upon the street, and in its true location cannot include any part of the bed of the street. Whatever rights to the soil of the street or to the use thereof, as a street, may have passed by implication under the deed, it is clear to us, that the land described in the deed was the lot, as contradistinguished from the street.
This being the view entertained by this Court as to the true intent and meaning of the deed of the 22nd of September, it fellows, that it would have been competent for the Circuit Court, whose province it was to construe the deed, to have instructed .the jury that the place of beginning of the appellee's lot w.as on the marginal line of Patrick street, which instruction, under the conceded facts of the case, would have entitled the plaintiif to the verdict,
At the trial four bills of exception were taken to the ruling of the Circuit Court. The second and fourth of which only have been argued or relied upon by the appellant, as grounds for reversal. It is only necessary to refer to them briefly. The second exception was taken to the admission of evidence to show the beginning or south-west corner of lot No. 54, situated on the north side of Patrick street in a different square from lot No. 55, and not shown to he in any manner connected with it.
The evidence was objected to on the ground that it was “hearsay,” and also, because it was irrelevant; the location of the lot in question not being’ shown to be dependent upon, or in any way governed by, the lot No. 54, spoken of by tbe witness. Whatever weight these objections might have under other circumstances, it is unnecessary to consider, because even if it were conceded that the evidence was erroneously ad mil ted, that would present no ground for reversal of the judgment in this case; inasmuch as no injury was done to the appellant by the ruling of the Court, There was really no question of fact for the jury to decide. For the same reason the judgment will not he reversed on account of any supposed error in the instruction given by the Court to the jury, and contained in the fourth hill of exceptions. The alleged error in that instruction consisted in submitting a question of law to the jury, viz: the construction of the deed, which the Court ought to have decided. Rut the appellant was not injured thereby, inasmuch as it clearly appears to this Court, that by the true construction of the deed the beginning of the appellee’s lot was on the marginal line of Patrick street as found by tbe jury. It is the well settled law of this Court, that in such case the judgment will not bo reversed.
See Union Bank vs. Planters’ Bank, 9 G. & J., 439. Edioards vs. Balto. Fire Ins. Co., 3 Gill, 181. Mut. Saf. Ins. Co. vs. Cohen, Ibid., 459. Clements vs. Smith’s Adm’r
The counsel for the appellant is in error in supposing the question of the construction of the deed is not presented by tbe bills of exception. In the 4th prayer of the defendant which was refused by the Circuit Court, that question is distinctly raised. And entertaining the opinion already expressed on that point, tbe judgment will be affirmed.
Judgment affirmed.