56 Md. 320 | Md. | 1881
Lead Opinion
delivered the opinion of the Court.
The real estate over which this controversy has arisen, has been sold under a decree of the Circuit Court for Washington Countjr, by the consent of all the parties to the suit; and the questions for decision are presented by exceptions to the .special auditor’s report filed in the cause, which have been overruled by a pro forma order, and the audit in the particulars excepted to ratified, from which -order this appeal has been taken.
Both appellants and appellees claim the fund; so the question is one of title to the real estate sold; and its solution depends upon the proper construction of several deeds, and whether • the conveyance to the grantor of appellees’ intestate John Alexander Adams, was made in the due and bona fide execution of a power by Mary-Anna Adams, the appellants’ intestate.
In 1828, Mary Anna Adams was the widow of Archibald Ritchie, and entitled by his will to an .absolute estate
The habendum clause of the deed, is in the following language, viz., “To have and to hold the said farm called ' West Farm,’ with every the appurtenances, unto the sole- and separate use and benefit of the said Mary Anna Adams, 'with full power to the said Mary Anna Adams, to sell and convey in fee simple, by any deed or deeds to be by her executed, and acknowledged before any two justices of the peace of Washington County, either the whole or any part of the said real estate, called the ‘ West Farm,’ and in default of a sale of the said real estate, or-any part thereof, by the said Mary Anna Adams, then to the separate use of the said Mary Anna Adams, for life, and after her death, to the use of such person or persons, for such estate or estates, interest or interests, as she may by her last will and testament, or any instrument of writing under her hand and seal, and attested by three witnesses, direct, limit and appoint, and in default both of such-appointment, will and saTepthen to the use of the heirs-at-law of the said Mary Anna Adams in fee simple. ' Provided, nevertheless, and it is the true intent and meaning of these presents, and of the parties thereto, that the said estate called the ‘ West Farm,’ is to remain charged and .liable, both at law and equity, to the said John Alexander Adams, for all the debts of the late Archibald Ritchie, deceased, either already paid, or hereafter to be paid, and satisfied by him, and also, that the said estate is to remain charged and liable aforesaid, to the said John Alexander Adams, for all debts or sums of money already con
On the 27th day of November, 1856, John Alexander Adams and wife, by deed, reciting the power to sell, and professing to be in execution of that power, in which the consideration therefor is stated to be one hundred dollars, conveyed the same farm or estate to Urias Knode, who on the same day conveyed the same by deed for a like consideration to John Alexander Adams in fee. Both these deeds were executed before two justices of the peace, and were duly recorded. These deeds, on their face, put the title to the estate in John Alexander Adams, who having died intestate, the appellees claim the estate as his heirs-at-law. The appellants claim the estate as the heirs-at-law of Mrs. Adams, and contend that the conveyance to Knode, through which John Alexander Adams took title, is invalid for two reasons, viz., 1st. Because the transaction was not warranted by the power reserved to Mrs. Adams in the deed of settlement, which, for convenience may be called the Piper deed, but was in fraud of the power conferred by that deed. 2nd. That the Knode deed was procured from Mrs. Adams by the undue influence, fraud and coercion of her husband, John Alexander Adams. This proceeding therefore is substantially a proceeding to set aside those deeds for the reasons stated.
After the most mature reflection upon the proofs submitted, and due consideration of the deeds through which the settlement was effected, and the title finally passed to John Alexander Adams, we are unable to adopt the view, so ably and exhaustively presented by appellants’ counsel. In respect to the proof upon which we are asked to say that the Knode deed was procured from Mrs. Adams by the fraud, undue influence and coercion of her husband, we may say, that whilst there is some testimony tending
When Mr. and Mrs. Adams conveyed the land to Piper,: Mrs. Adams was the undeniable and absolute owner in fee, of the land. Mr. Piper re-conveyed the land to her and her heirs and assigns, clothed with certain trusts or subject to certain powers particularly set out in the habendum, clause of the deed. In changing the form of the. holding, and putting it in the form of a settlement, it. is plain that the main object was to put the property beyond, the control, of her husband, or possible liability at any time and in any way for his debts. It was to enable her with respect to it, to act independently of him and without his concurrence, if she so desired. This was certainly accomplished by the settlement, for she could execute any' of the powers of it without the concurrence of her husband. 1 Sugden on Powers, oh. 4, secs. 4, 5 and 6. The title which was conveyed was the fee, whilst the individual and personal interest which she took, was to her sole and separate use, so that the full extent of her title remains to he decided as an important preliminary to the
“ The intent of the donor of the power is the great principle which governs in such cases 4 Kent, 345; Lowry vs. Tiernan, 2 H. & G., 34; and we must ascertain that intent from the language used in the deed of settlement creating the estate and confirming the power.
By the express terms of the deed from Piper to her, Mrs. Adams took an estate in fee, subject however to he divested hy the execution of the power or powers of the deed. Doe vs. Martin, 1 Term Rep., 67; 4 Kent’s Commentaries, 324, 325. Formerly it was held that the power in such case was absorbed hy the fee; but the weight of authority establishes, that the power is not extinguished, hut co-exists with and qualifies the fee. 4 Kent’s Com., 349, and authorities there cited.
The contention of the appellants is, that they take as purchasers under the deed of settlement; that they take with remainders in fee, which could only he divested hy the proper exercise by MrS. Adams, of some one of the powers conferred on her hy deed of settlement. ' Among other authorities in support of their position, they cite Doe vs. Martin, 4 T. R., 39, and Cunningham vs. Moody, 1 Vesey, 174. These authorities would sustain that contention beyond doubt, if the limitation over in default of the execution of any of the powers of the deed had been to them as strangers, and not to heirs-at-law of the first taker! In the case at bar, the limitation over is to “ the heirs-atlaxo” of Mrs. Adams. If there were no other language than that contained in the habendum clause, and the estate had in words been limited to Mrs. Adams for life only in the granting clause also, according to the rule laid down hy Mr. Sugden on Powers, vol. 2, p. 23, sec. 5, by the rule in Shelley’s Case, the two estates would coalesce and give Mrs. Adams the fee. In fact, however, the grant is to her,
Affirmed, and cause remanded.
Dissenting Opinion
delivered the following dissenting opinion :
I agree that there is not sufficient evidence in this record, to justify a Court of equity in vacating, upon the. ground of actual fraud in fact, the deeds of November, 1856, by which the real estate in controversy, was conveyed by Adams and wife to Knode, and by the latter, to Adams, the husband, in fee. But I am further of opinion, (and in that I understand, all the Judges who heard the case, to concur) that these conveyances were not- a valid execution-of the power of sale contained in the deed from. Piper, of September, 1832, and that being so, I am clearly of opinion, that upon her death, the heirs of Mrs. Adams took the estate under this latter deed. The state of the title, as I understand the case, is as follows:
Archibald Ritchie,, who died in 1828, left a will by which he devised this property to his wife in fee simple. By this will, his widow was vested with an unqualified and absolute estate in this land. She could do with it as' she pleased, so long as she remained unmarried. But she afterwards married Mr. Adams, and by this marriage,_ her real estate at that time, became subject to the curtesy interest of her husband, but as there was no issue of this marriage born alive, the land upon her death, intestate, would have descended to her heirs-at-law, if there had been no intervening conveyances thereof. After this marriage, she could not sell and convey the land unless