74 Md. 400 | Md. | 1891
delivered the opinion of the Court.
The appellant resists compliance on the ground, as he alleges, that the appellee can not make him a good title in fee for the property which, in writing, she has contracted to sell him, and he by the same writing has agreed to buy.
The decree appealed from adjudges that Mrs. Mann, (the appellee,) has a fee simple title which the appellant is compelled to take and pay for in accordance with the agreement.
Erom the agreed statement of facts it appears, that on the thirtieth day of January, (1*768) seventeen hundred and sixty-eight, the ground in controversy was leased for ninety-nine years, renewable forever, by. one Cornelius Howard to a certain Conrad Smith; and that after sundry mesne conveyances, the lot in question was on the (20th) twentieth of April (3*795) seventeen hundred and ninety-five, conveyed to John Stump, subject to the yearly rent of eight shillings and four pence. On the 8th of January, eig’hteen hundred and seventeen (181*7), the executors, legatees and children of John Stump assigned the leasehold estate in the lot of ground in question to Priscilla Stump. Afterwards a certain Henry P. Sumner, having become entitled to the reversion in fee in the lot, for the consideration of twenty-seven dollars, conveyed the same to Priscilla Stump. The rent reserved was thus extinguished, and Priscilla Stump’s estate became a fee, by the merger of the leasehold in the fee. On the second of March (1842) eighteen hundred and forty-two, Priscilla Stump made and executed to Thomas W. Levering the deed through which the appellee claims her title, by mesne conveyances, till she obtained a deed purporting on its face to
On the twenty-fourth day of December, eighteen hundred and sixty, Thomas W. Levering by his bond agreed to sell and grant unto Mann Brothers this piece of propperty, calling it “leasehold property,” and describing it as “the same lot of ground as that described in a deed from Priscilla Stump to the obligor,” giving date and folio of record, showing it to be the same deed hereinbefore recited.
On the seventh of January (1862) eighteen hundred and sixty-two, Thomas W. Levering, after reciting his bond to sell this property to Mann Brothers, upon certain conditions with which the obligees had complied, and further reciting that since the sale to them it had been discovered that the title of the grantor was not a leasehold, hut a fee, convéys to Mann,Brothers afee in the
The sole question in the case is whether Thomas W. Levering, by his deed from Priscilla Stump dated the second of Marph (1842) eighteen hundred and forty-two, acquired a fee in the property. The appellant contends that Levering did not take a fee, and that he took only a life estate, because the estate is not limited to his heirs in terms, nor by any words which can supply that lack. The appellee, insists that Levering’s deed is to be construed according to the intention of the parties to it, and that it carried a fee. •
The contention of the appellant is that the appellee only took an estate pur autre vie, that is, during the life of Thomas W. Levering who died in 1888; because Levering took only an estate for life; and that upon Levering’s death the fee reverted to the heirs-at-law of Priscilla Stump, and is now in her heirs-at-law or devisees. If this be so, of course, the appellee did not have such title as the appellant should be forced to take, and the decree of the Court below is in error.
It is an unbending rule of the common law that to create an estate in fee simple in a natural person, the conveyance must contain a limitation to such person and his heirs. The word “heirs” is the operative term, Leading Cases of Real Property by Sharswood & Budd, 53; and Chancellor Kent in his Commentaries, vol. 4, pages 5 and 6, says “the limitation to the heirs must be made in direct terms, or by immediate reference, and no substituted words of perpetuity, except in special cases, will be allowed to supply their place, or make an estate of inheritance of feoffments and grants. ” Lord Coke (Colee Littleton, 9 a) speaking of the word heirs, says, “there are words so appropriated by the law as that they can
There are no doubt some few exceptions to this general rule, and this Court has frequently recognized them. The cases of Budd vs. Brooke, et al., 3 Gill, 234; Spessard, et al. vs. Rohrer, et al., 9 Gill, 261; Farquharson vs. Eichelberger, &c., 15 Md., 73; Hawkins, Trustee vs. Chapman, et al., 36 Md., 94; Merritt vs. Disney, 48 Md., 344; Larmour vs. Rich, et al., 71 Md., 381. This case, however, does not fall within the reason of any of those cases we have referred to; nor does it fall within any of the exceptions collected and stated in Prestman on Estates, and Sharsivood ds Budd’s Leading Cases upon Real Property. The omission of the word “heirs” may be cured by reference to some other instrument which does contain the word “heirs;” but in this instance the reference is to an instrument, which not only does not contain the word “heirs,” but in express terms conveys to the grantee a leasehold estate. ' When the deed to Thomas W. Levering was made, Priscilla Stump unquestionably had afee simple estate; and if in her deed to Levering reference had been made to the deed from Sumner to her conveying her a fee, and that had been mentioned as describing the property she was conveying to Levering, we should have no difficulty in deciding that by such reference the omission of the word “heirs” was cured, and that Levering took the fee. But there is no reference whatever to the deed from Sumner, and not only is the deed to Priscilla
It is an undoubted rule, and one frequently adverted to in the decisions of this State, that Courts will inspect the grant to ascertain the intention the parties had in making and accepting it, and will then so expound the deed as to give elfect to that intention unless expressions are employed which prevent such construction. If to do so, however, will violate some well established principle of law, then the instrument must be construed as its legal terms require, whatever might be supposed to have been the intention of the parties. Reed, Howard, et al. vs. Stouffer, et al., 56 Md., 253; Budd vs. Brooke, et al., 3 Gill, 234; Benson vs. Boteler, 2 Gill, 77.
To give this deed such a construction as that contended for by the appellee would contravene the rule already cited .as obtaining from the days of Littleton and Coke, to 1856, when the Legislature of this State abrogated it, that the word “heirs ” is essential in a deed to make it create an estate in fee. The unbending nature of this rule prior to 1856, is, as we have already stated, recognized as recently as in Handy, et al. vs. McKim, et al., 64 Md., 572, which case enumerates the cases wherein the exceptions are found, and the rule has been departed from. None of those cases however bear any analogy to this case. They were all cases of trust; and if this was a case of trust we should have no difficulty in- concurring with the view entertained by the Court below in deciding this case. At common law, Chancellor Kent says, in 4th vol., of his Commentaries, page 61, “though the intent of the parties be evér so clearly expressed in a deed, a fee cannot pass without the word heirs ;” but in wills, he says the same rule will not be applied. But counsel for the appellee contends that this rule has never ■obtained in Maryland as strictly as it .did in England ;
The Constitution of the State first adopted, by its Bill of Rights, which has since been re-adopted, guaranteed to the people of the State the common law of England, by which the word “heirs ” was always held necessary to limit a fee; and all the decisions of the State have announced that as the unbending rule, except in certain cases of trust already referred to. But even if the deed under consideration be read in the light of the Act of 1715 as controlling its construction, as that Act says the words must import the intent, we should find serious difficulty in giving the deed t'he construction contended for by the counsel for appellee,, ingenious as his argument has been. This deed purports to convey to Thomas W. Levering the estate which Priscilla Stump acquired from the executors and representatives of John Stump, viz., a leasehold estate. Reference is made to that deed
From what we have said it is apparent that we do not think the appellee could give the appellant a fee in the property she contracted to sell him, and there was error, therefore, in the decree requiring him to complete the purchase and pay for the property.
Decree reversed, and bill dismissed.