Heck v. Remka

47 Md. 68 | Md. | 1877

Bartol, C. J.,

delivered the opinion of the Court.

This is an appeal from an ex parte order of the Circuit Court for Baltimore County, granting an injunction, and its decision depends upon the sufficiency of the case stated in the bill of complaint to entitle the appellee to relief by injunction as prayed.

Without inserting here the several averments contained in the bill, it is sufficient to say that after a careful examination we are of opinion they do not present a case entitling the complainant to the injunction, and that the writ was issued improvidently. The ground for relief stated is that the courses and distances in the deed of conveyance taken by the appellee from the appellant, do not embrace the whole land sold, the outlines of which had been shown to appellee by appellant, and which the latter stated were owned by him; and further that a portion of the land embraced in said courses and distances (some two or more acres) is claimed by and in possession of George Lentz and has been in his possession for a great number of years.

It is not alleged that the appellee has not in fact received possession under his deed of all the lands, the boundaries of which the appellee pointed out to him.

Nor is it alleged that any part of it has ever been claimed by any other person, or that his possession of the same has ever been disturbed by the appellant or any one else.

The whole complaint of the appellee seems to grow out of a misdescription in the deed, which was accepted by him and under which he has held possession for nine years.

It is not alleged that the “ appellee upon discovering the error, or misdescription in the deed, has ever tendered for appellant’s execution a corrected or confirmatory deed.”

The allegation that he “had repeatedly asked the said Heck to make him a good title to the land so purchased, as shown to him by Heck, and by which showing he purchased, but the said Heck has refused so to do,” does not come up to the requirement of the law, it was his duty, if the description in the deed be erroneous, to have a new deed prepared containing a correct description, and tender it to the appellee to be executed.

The case of the complainant as it is very clearly and forcibly stated in the appellant’s brief, is “ that having received a deed of conveyance, presumptively prepared under his own direction, which spoke for itself, and having retained it, and the land for nine years, and having been indulged by the appellant with a credit five years longer than he was entitled to, upon one-third of the purchase money, he desires that the appellant may be enjoined from collecting the balance of consideration money due him, because the deed which the appellant executed at his request contains, or is supposed to contain an error, in the description — an error which has existed for nine years, and which it is not even alleged the complainant has only now discovered.”

No argument or authority is required to show that there is no equity in the bill. In order to show the error in the description contained in the deed a plat is exhibited with the bill. It requires only a cursory examination of the deed and the exhibit to discover the manifest errors made by the surveyor in locating the deed. These grow out of a disregard of the established rules of land law, in making the locations from the courses and distances only, wholly disregarding the calls.

We deem it unnecessary to go into this subject, or to point out these errors. Nor is it necessary to refer to the Code, Article 64, section 15, or to consider whether by its terms the issuing of an injunction in a case of this kind is not prohibited. Without expressing any opinion thereon we think, as before stated, that the bill does not present a case entitling the appellee to the relief prayed. The order granting the injunction will be reversed, and the bill, dismissed.

(Decided June 15th, 1877.)

Order reversed, and till dismissed.