83 Md. 289 | Md. | 1896
delivered the opinion of the Court.
This appeal was faken from a pro forma decree of the Circuit Court of Baltimore City dismissing the bill of complaint, and also overruling exceptions to some testimony. The appellee entered into a contract in writing with the appellant, whereby he agreed to loan it twenty-seven thousand dollars, to be secured by a mortgage on the property claimed by it, which is situated on Sharp street, in the city of Baltimore, upon the express understanding that the appellant was seized of a good and merchantable title. The mortgage was duly executed and tendered to the appellee, who refused to accept it because he was advised that the appellant did not have such a title. The bill alleges that the refusal of the appellee to make the loan was based on the claim that by reason of alleged trusts attempted to be created by certain deeds, the appellant could not properly secure him the repayment of the money, “ and then denies the existence of any such trusts and avers that for more than fifty years it had held actual possession of the lot of ground; that its possession had been-adverse and continued without interruption throughout that time ; that it improved the prop
It is contended on the part of the appellant that the trusts undertaken to be created by these deeds were void ab initio because they are too vague and indefinite, and also because they create perpetuities, and that, inasmuch as valuable considerations were paid, the grantees took the beneficial interest and there could be no reverter to the heirs of Sinclair or Carey. We do not deem it necessary or proper to decide that question, as the parties to the deeds are not represented in this case. The appellant further contends, however, that it is wholly immaterial whether that position be correct or not, as it has acquired title by possession adverse to the trustees, their survivors and heirs, as well as to all other persons, and that it has never recognized the right of any of them to any part of this property.
It may be true that the appellant has a perfectly good title by adversary possession to this lot, but the question is whether it has been so established by the evidence as to justify us in decreeing a specific performance of the contract. No deed or other instrument to it was offered, and John H. Smith, who had been a trustee for thirty years, testified he had no knowledge of any deed from any one to the corporation. He also said that in 1866 he was made secretary of th.e board, and the deed from Carey and the first one from Sinclair were placed in his custody, “and being the only deeds that I had ever seen or knew anything about, when we
Then, again, if it should be decided that there was or could be a reverter to the heirs of Sinclair and Carey in the event of a diversion of the property from the uses to which it is devoted by the deeds, it might be held that there had not yet been such diversion and the Statute of Limitations had not commenced to run against the heirs of those grantors. The Carey deed, for example, contemplates the use of the part of the lot conveyed by it (which is the greater and most valuable part) for religious as well as educational purposes. Thus far, according to the evidence, the lot has not been used for purposes forbidden by the deed, but for such as it seems to expressly authorize. It is true that it does not appear to have been used by a school for thirty years or more, but as long as it is used for either of the purposes in the deed, the heirs of Carey could not be said to have the right to enter merely because it is no longer used for both. If such be the status of the property and it should be hereafter diverted by the appellee or those claiming under him, then, for the first time, could the heirs of Carey enter or claim the property on that account, and hence the statute could not be said to have yet commenced to run against them. Of course this is all predicated on the assumption that the appellant has not held adversely to the trustees and
We regret that we do not feel justified in construing the deeds now so as to dispose of such questions as are presented on the face of them. But we do not think their provisions—especially those in the Carey deed—are so free and clear from doubt as would justify us in passing on them when those who might be affected by our conclusions are not before us—particularly as our determination would not be binding on them “ otherwise than as a mere precedent, affording persuasive reason to the same conclusion,” as was said in Kelso v. Stigar, 75 Md. 390, of a previous decision in a case in which the persons interested had not been made parties.
This case is unlike that of Gump v. Sibley, 79 Md. 165, cited by appellant. Sibley had some kind of a record title and the Court had before it such facts as enabled it to determine when and how far the Statute of Limitations took effect, and so also in Lurman and Fowler v. Hubner, 75 Md. 268, and other cases referred to. But we are not sufficiently informed by the evidence as to the character of possession held by the appellant or the residence and status of those who might make claim to this property to require the appellee to make the loan. We do not determine that the appellant has not acquired a good title by adverse possession, but only that it is not free from reasonable doubt, so far as the evidence in the record discloses. “ A Court of Equity will not compel a purchaser to take a title which is not free from reasonable doubt and which might in reasonable probability expose him to the hazards of litigation (Emmert v. Stouffer, 64 Md. 5 54), and we think that rule should be applied with emphasis, when the proposed vendor or mortgagor, as in
A prudent lawyer would certainly hesitate to advise his client to accept this title on the evidence in the record, and we cannot say it is so free from reasonable doubt as to authorize us to compel the appellee to accept' it.
We are of the opinion that the appellee is entitled to an affirmance of the decree below dismissing the bill, and as we have reached that conclusion without taking into consideration the evidence excepted to, we have not thought it necessary to discuss it. Decree ajfinned with costs.