57 Md. 563 | Md. | 1882
delivered the opinion of the Court.
This appeal is from an order overruling a demurrer to a bill in equity filed by the appellees against the appellant and one Jacob Seeger. We have recently decided in the case of Chappell vs. Funk, p. 465 ante, that an appeal will lie from such an order where the demurrer goes to the entire bill. The motion to dismiss in the present case is therefore overruled.
The complainants are grand-children of Robert Carey Long, who died in 1833, seized in fee of real estate in the City of Baltimore, including an undivided moiety of a small lot of ground at the córner of Baltimore and Sharp streets. He left a will by which he devised his interest in this lot, with other property, tó his son, Robert Carey Long, Jr., and his son-in-law, John E. Wells, in trust, for the uses and purposes thereinafter mentioned, and among the trusts to which the property is subjected is
The bill avers that four of the children named in this fifth clause have died leaving issue, who are the complainants, hut that the other four are still living, though childless. It is plain, therefore, that as between trustee and cestuis que trust, the trust created by this clause is a still continuing and subsisting trust. It is also averred, that
What then is the case made by this hill (which was not filed until July, 1880,) against these defendants? It charges, that, the premises in question “ with the improvements thereon are held under pretence by one Henry C. Hecht and Jacob Seeger, who hold in contravention of the rights of your orators; that they obtained their title through sundry mesne conveyances from one David Stewart, who was appointed a trustee in a cause in chancery; that complainants were not parties to that suit and neither the decree nor the deed of the trustee professed to, or could convey or alien any greater rights than those of the parties to the cause; that the will of Long being matter of public record, and filed as au exhibit in the chancery proceedings through which the defendants claim title, they were affected with notice of its contents, and could not acquire any greater title than it was within the power of the trustee in that case to convey, and he had
How in ail this, there is no averment that the defend-ants acquired under their title from Stewart, any interest which would make them tenants in common with the complainants of this property. Even if that averment in connection with others contained in the bill, would be sufficient to sustain jurisdiction in equity. It is not averred who were parties to that proceeding, or when, or for what purpose the suit was instituted, and, for aught that appears, it may have been a creditor’s bill with proper parties, for the sale of the testator’s real estate to pay his debts. At all events, and whatever title they may have acquired, the bill plainly avers, that under that title, the defendants are holding the property in contravention of all the complainants’ rights therein, that they are in possession under such holding, and that Hecht, (the demurring defendant,) has been so in possession for an indefinite number of years, since the death of the testator in 1833. It seems, therefore, very clear, that the complainants are seeking through the medium of a suit in equity, to •recover property from parties who not only deny their title, but who are in possession holding adversely, under no tenancy in common with the complainants, and whose adverse holding may, for aught that appears, have continued for such a period as to have clothed them with a title, good even as against the undisputed owner of the paper title. For such a case, there is adequate and ample remedy at law. Under the law as it now stands, (Act of
Order reversed, and hill dismissed without prejudice.