delivered the opinion of the Court.
This аppeal concerns the ownership of an improved lot of ground at the northwest corner of Atlantic Avenue and Caroline Street in Ocean City, Maryland, which was occupied and used by the United States of America as a Life Saving Station for almost a hundred years. At the hub of the controversy is whether the United States acquired title in fee simple absolute through adverse possession or lost all its right, title, interest and estate in the property by realization of a possibility of reverter.
I
The relevant record title to the property devolves through three cоnveyances: 1) a deed dated 28 July 1876 from Stephen Taber and wife to Hillary R. Pitts, Benjamin Jones Taylor and George W. Purnell, Trustees (the Trustees), recorded among the Land Records of Worcester County in
II
On 15 January 1869 Stephen Taber and Hepburn S. Benson obtained a patent from the State of Maryland. The patent, preserved in the Hall of Records in Liber W. L. & W. S. No. 2, folios 326-327, gave Taber and Benson “The Lady’s Resort to the Ocean”, a 280 acre tract of land along the Atlantic Ocean in Worcester County. Taber acquired Benson’s interest by deеd dated 9 October 1871 and recorded among the aforesaid Land Records in Liber I.T.M. No. 1, folios 591-592.
Stephen Taber created Ocean City, “desirous,” as he explained in the 1876 deed, “of conforming to the views and general public sentiment of the people of Worcester and the adjacent counties in their desire to establish a place as a sea-side Summer Resort and the promotion of the growth of the same.” Fifty acres of “The Lady’s Resort to the Sea”, with his acquiescence and approval, were “laid off into a town, with lots, streets and avenues, as is called and known as Ocean City”, and he granted the fifty acres to the Trustees by the deed of 1876, appending a plat of the proposed town. 1 The terms of the trust were set out in the habendum clause. The Trustees were to hold the property
“upon trust, that they or their successors shall convey the same, with as little delay as practicable, at the expense of the grantee or grantees named in the deeds in lots as they are described on said plat and according to their numbers; to such persons as draw the same at a distribution of said lots, madе by the Stockholders of the Atlantic Hotel Company at the Atlantic Hotel at Ocean City on the thirty first day of August Eighteen Hundred and Seventy Five. And if there are any lots remaining which are not drawn at the aforesaid distribution, then and in that event, the said trustees or their successors are hereby authorized and empowered to sell and convey the same to such persons as they think proper or to make any other disposition of said lots they think proper and appropriate the proceeds thereof in such manner as they shall deem most advantageous to the interest of said Ocean City.”
Lot no. 3, as laid out on the plat, was at the northwest corner of Atlantic Avenue and Caroline Street. Its exact size is not shown, for the plat reflects neither lot dimensions nor a scale. It was, however, much larger than the size of the other lots except that of the Atlantic Hotel. It was bounded by the west side of Atlantic Avenue on the east, the north side of Caroline Street on the south and the east side of Baltimore Avenue on the west and was of irregular width.
The deed of 1878 conveyed a part of lot no. 3 to the United States of America. The part conveyed was described as “beginning at the northwest corner of Atlantic Avenue and Caroline Street thence running westerly by and with the north side of Caroline Street one hundred feet thence northerly by a line parallel with Atlantic Avenue fifty feet then easterly by a line parallel to Caroline Street one hundred feet to Atlantic Avenue, thence by and with the west
“to have and to hold the said lot of land and privileges, unto the United States from this date for the purpose aforesaid. And it is further stipulated, that when the United States shall fail to use the said Life Saving Station, the land hereby conveyed for the purpose aforesaid, shall, without any legal proceedings, suit or otherwise, revert to the said Trustees, their successors and assigns, absolutely, and they shall be entitled to re-enter upon and take possession thereof free from all encumbrances of every nature or kind.”
The deed was signed and acknowledged by the Trustees and signed by the Secretary of the Treasury.
The 1967 deed was designated a “Quitclaim Deed.” The United States of America was “Grantor”, and the Mayor and City Council of Ocean City, Maryland, was “Grantee.” It
Ill
On 17 July 1973 an equity action for a declaratory judgment was instituted in the Circuit Court for Worcester County by Thomas T. Taber, Jr., et alii (appellees) against the Mayor and City Council of Ocean City (appellant), et alii. Motions for Summary Judgment filed by appellees and by appellant were determined without hearing or argument by agreement. The motions were denied on 4 December 1975 with the suggestion that the parties “submit the entire proceeding to the Court upon the pleadings and exhibits in the file.” The suggestion was followed. On 17 December all parties, through their counsel, requested that the court “render an Opinion and Order based upon the pleadings and exhibits presently on file herein, after giving due consideration to the memoranda of the various parties filed herein, and render its decision hereon at its earliest convenience without a hearing or taking of testimony on this
IV
Appellant would have the 1878 deed be ineffective. Thus, it reasons, the United States, and appellant through privity of estate,
Gore v. Hall,
The 1878 deed, on its face, was a valid conveyance by the
The chancellor in the case sub judice declared that the 1892 chancery action did not void the 1878 deed and that, therefore, appellant did “not acquire title to the property in question by virtue of adverse possession thereof.” We think he was right.
The parties to the 1892 chancery action were certain heirs and devisees of Stephen Taber and the then Trustees under the deed of 1876. Although a part of lot no. 3 had been conveyed by the Trustees to the United States about fourteen years before, the United States was not a party to the action. The Bill of Complaint listed sixty-four lots by number as designated on the plat made part of the 1876 deed. These lots had not been drawn at the distribution called for in that deed, a id had not been sold or disposed of by the Trustees. Lot no. 3 was not among them. The Bill prayed that the deed of 1876, “so far as the same purports to affect the title to the aforesaid lots at Ocean City, in Worcester County, Maryland, still remaining in the possession of the said Trustees, or their successors, and which were not drawn at the aforesaid distribution, may be vacated and annulled; and that the said lots may be
The decree was preceded by an opinion filed 25 May 1894. The chancellor said:
“The proceedings show that quite a number of lots remained, after the drawing & are now in the hands of the Trustees unsold. The representatives of the grantors in the original deed of trust, claim the trust is void as to these lots and have filed their bill, to obtain a sale and a division of the proceeds among them. Thе grounds upon which they insisted that as to these unsold lots the trust is void are two ....
Without assigning the reasons (which are so well stated in the arguments of Counsel), I am of the opinion that both of these grounds are well taken; & that therefore, so far as the lots now remaining unsold are concerned, the trust is void, and the title still remains in the devisees of the grantor andtheir grantees. I will therefore sign a proper decree for the mile of the lots an prayed for in the bill.” (emphasis added)
We find it manifest that the 1892 chancery action did not affect the title of that part of lot no. 3 conveyed to the United States. Lot no. 3 had been conveyed to the United States by the Trustees some fourteen years before the equity action was instituted. The United States was not a party to the action. The action did not seek relief with resрect to lot no. 3, it not being among those listed in the Bill of Complaint. The decree afforded no relief with respect to lot no. 3, it not being among those listed therein to be sold. In short, the purpose of the action, as was patent from the pleadings, was to obtain the sale of those lots then in the possession of the Trustees, not those lots which had previously been conveyed. The intendment and effect of the decree, as is obvious from the opinion of the court and the decree itself, was no more than that. We find, as did the chancellor below, that the decree in the 1892 chancery action in nowise affected the title to property obtained by the United States under the 1878 deed.
On appeal appellant urges that the 1876 deed was void without regard to the 1892 chancery action because its trust provisions were uncertain and void and it was without a beneficiary in existence at the time of the creation of the trust. It suggests that its being void does not depend upon a court declaration. The trouble with this view is that the point does not plainly appear by the record to have been tried and decided by the lower court. Maryland Rule 885. In fact, we do not find in the joint record extract that the point was ever presented to the lower court, despite the indication by appellant that it was. Appellant’s Answer to the Bill of Complaint, its Answer in Opposition to appellees’ Motion for a Summary Judgment, its own Motion for a Summary Judgment, its several memoranda of law submitted to the lower court, all spoke of the 1876 deed as being void only in relation to the 1892 chancery action. It is apparent that the chancellor did not consider that the point now presented wаs before him, because he did not mention it in his opinion or
As the question whether the 1876 deed was void or some provisions of it were ineffective without regard to the 1892 chancery action was not raised below and was not specifically decided by the trial court, it was not preserved for appellate review.
Thomas v. Corso,
As the 1892 chancery proceeding did not affect the 1876 deed, appellant’s attempted application of the doctrine of res judicata to have that deed be void under the 1894 decree is fruitless.
Appellant says that appellees alleged in their Bill of Complaint that the 1876 deed was utterly null and void and that appellant in its Answer admitted the allegation. It follows, therefore, appellant claims, that the allegation is conclusive against appellees, citing
Matthews v. Kernewood, Inc.
“That the plaintiffs aver that by the said decree of Court dated August 18, 1894, that pоrtion of the deed from Stephen Taber and wife to the said Trustees, dated July 28, 1876, which authorized the Trustees to sell and convey the lots remaining which were not drawn, was determined to be utterly null and void to all intents and purposes whatever, and that part of the said deed hereinbefore set forth shall not interfere with nor in any manner affect the right, title and claim of the heirs of Stephen Taber, being the plaintiffs herein, to whom the title of said property has passed by intestate succession or devise to the said present heirs of Stephen Taber.”
We have decided that, as the validity of the 1878 deed was not affected by the 1892 chancery action, and as there is no other question regarding its validity properly before us, the 1878 deed stands valid. Therefore, the legal owner of the property described in the deed is to be determined under it.
The 1878 deed conveyed an estate in fee simple determinable. Such an estate has been long recognized in Maryland.
Second Universalist Soc. v. Dugan,
“An estate in fee simple determinable, sometimes referred to as a base or a qualified fee, is created by any limitation which, in an otherwise effective conveyance of land, creates an estate in fee simple and provides that the estate shall automatically expire upon the occurrence of a stated event.
No set formula is necessary for the creation of the limitation, any words expressive of the grantor’s intent that the estate shall terminate on the occurrence of the event being sufficient.... So, when land is granted for certain purposes, as for a schoolhouse, a church, a public building, or the like, and it is evidently the grantor’s intеntion that it shall be used for such purpose only, and that, on thecessation of such use, the estate shall end, without any re-entry by the grantor, an estate of the kind now under consideration is created.
* * *
If one who has an estate in fee simple creates a determinable fee in favor of another, he has thereafter merely a possibility of re-acquiring the land by reason of the occurrence of the contingency named or indicated, this possibility being known as a possibility of reverter.”
See Restatement of Property
§ 44 (1936). We described a possibility of reverter in
Ringgold v. Carvel,
“A possibility of reverter is any reversionary interest which is subject to a condition precedent. . .. When the owner of an estate in fee simple absolute transfers an estate in fee simple determinable, the transferor has a possibility of reverter. In other words, if one who has an estate in fee simple creates a determinable fee in another, he has thereafter merely a possibility of reobtaining the land by reason of the occurrence of the indicated contingency. Thus, where land is devised for a certain purpose, and it is the testator’s intention that it shall be used for that purpose only, and that on the cessatiоn of such use, the estate shall end without re-entry by the grantor, a possibility of reverter arises.... In case of a diversion of the land from the purpose for which it was devised, the heirs of the testator may be entitled to have the land again by reverter.” 5
What the United States acquired in the property was a determinable fee and nothing more. Of course, the United States had the power to convey what it owned. “The owner of a determinable fee has all the rights of an owner in fee simple .. . ; conveyance of the property does not necessarily terminatе the fee, but the grantee takes it subject to the same liability to termination as existed before the grant.” 1 H. T. Tiffany, The Law of Real Property, § 220 (3rd ed. B. Jones 1939). Thus, having validly acquired a determinable fee, the United States could convey it. This it did by the 1967 deed, which remised, released and forever quitclaimed any and all right, title and interest which it had and on an “as is, where is” basis. The United States expressly made no warranties or covenants with reference to the property. The most that appellant acquired from the United States as to the first parcel described in the 1967 deed was a determinable fee, subjeсt to the liability to termination set out in the 1878 deed. The trial judge “specifically” found that the 1967 deed established “the fact that the United States of America, as of that date, did ‘fail to use the said Life Saving Station’.” This finding was not clearly erroneous. Maryland Rule 886. It is ironic that evidence of the occurrence of the event terminating the estate was supplied by delivery of the 1967 deed conveying the determinable fee. The estate in fee simple determinable having terminated, the property reverted, and appellant was left with no right, title, interest or estate whatsoеver.
There are statutory limitations on the duration of possibilities of reverter and rights of entry existing before 1 July 1969, but the statutes prescribe procedures to preserve the possibility and the right. Maryland Code (1957, 1973
Appellant’s last three contentions concern adverse possession predicated upon the 1876 deed being void and the 1878 deed being ineffective. As we have found that both stood valid as far as the subject property was concerned, the possession оf the United States was not hostile to the true owner, and it occupied the property, not under color of title, but under good legal title.
See Gore v. Hall, supra,
We note that, as the 1878 deed was in full force and effect, the statutory period for adverse possession would not start to run until 23 June 1967, the date of the occurrence of the event terminating the estate of fee simple determinable as found by the trial judge. Code (1957, 1973 Repl. Vol.) Art. 21, § 6-103 (now Real Property Art. § 6-103) provides:
“Possession of land . . . aftеr termination of an estate of fee simple determinable shall be deemed adverse and hostile .. . from the occurrence of the event terminating an estate of fee simple determinable.”
Appellant asks if the appellees are “estopped from asserting a claim to the premises under the theories of estoppel, waiver or laches?” In the circumstances, it is patent that they are not. The 1878 deed divided the fee simplе absolute estate in the property into the fee simple determinable estate conveyed by the Trustees and a possibility of reverter which remained in the hands of the Trustees. As we have observed, when the United States stopped using the property for a Life Saving Station, there was a diversion of the land from the purpose for which it was conveyed, the estate held by the United States was determined, and automatically a fee simple absolute estate was reestablished in those entitled under the original grantors.
Seloff v. Naidetsch,
V
The trial judge also determined who held the property in fee simple absolute upon its reversion and in what proportions. The propriety of that determination is not before us. Appellant asserts that it does not challenge the trial judge’s designation of those who are entitled to the property and their respective shares because, if it prevails, the matter is moot, and if it is found not to be the owner of the property, it has no interest in who are entitled thereto.
VI
We have indicated that the 1967 deed conveyed two parcels of land. The first parcel is that described in the 1878 deed. The source of the title of the United States in the second parcel, immediately adjoining the rear of the first parcel, is not disclosed in the record before us. We point out
Judgment affirmed; costs to be paid by appellant.
Notes
. Thе conveyance excepted and reserved from the fifty acres “so much thereof as has been by deed bearing even date herewith, conveyed to the Atlantic Hotel Company of Berlin, and also so much thereof as has been by deed bearing even date herewith granted to Wicomico and Pocomoke Rail
. The description of the first parcel in the 1967 deed is the same as the description in the 1878 deed except that the beginning point in the 1967 deed is jjiven as “the northeast corner of Atlantic Avenue and Caroline Street.” This is an obvious error, probably arising in the deciphering of the handwriting in the 1878 deed.
The second parcel as described in the 1967 deed was a lot fifty feet wide and one hundred feet deep immediately adjoining the rear of the first parcel. The deed did not contain a “being” clause, and the source of the title to the second parcel was not disclosed therein and does not appear in the record before us. It follows that the resolution of the case mb judice does not affect this second parcel.
. The facts as set out supra are not disputed in material part and are as found by the trial court from the pleadings and exhibits. Appellees asserted that they could not accept the Statеment of Fact set out in appellant’s brief “as it is argumentative and contains legal conclusions not established below.” In making the Statement of the Case in its brief, appellant said: “Stipulations and agreements as to facts were filed by the parties....” No such stipulations and agreements appear in the Joint Record Extract nor are they included in the record transmitted to us.
. The sixty-four lots listed in the Bill of Complaint did not include lots nos. 134,147 and 192 which were included in the sixty-six lots listed in the decree. Lot no. 122 was included in the Bill of Complaint but was not among those listed in the decree.
. A reversion, on the other hand, is “... any reversionary interest which is not subject to a condition precedent.... It is the residue of an estate left in the testator to commence in possession after the determination of some particular estate devised by him. Hence, a reversion arises whenever the
. Art. 21 was repealed by Acts 1974, ch. 12, § 1, effective 1 July 1974. The former provisions of §§ 6-102 and 6-103 now appear in Real Property Art. §§ 6-102 and 6-103 with only stylistic changes.
. In a trial memorandum submitted by appellees and included in the joint record extract, it is averred that by ordinance dated 3 December 1968 appellant enacted legislation to condemn “the land which is the subject matter hereof.” Pursuant to the ordinance, appellant instituted a condemnation action in the Circuit Court for Worcester County. We do not know whether this action covered both parcels of land. The outcome of the action is not disclosed in the record before us.