62 A.2d 276 | Md. | 1948
This suit was instituted by Nathan Snyder and Isaac Read to recover from Zulver Realty Company, Inc., a *379 Maryland corporation, a deposit of $2,000, which they had made as part payment in the purchase of a lot of ground improved by a three-story apartment building situated at 3022 Garrison Boulevard in the City of Baltimore.
The property was sold at auction on November 6, 1947, for $20,925, and the purchasers agreed to pay the balance of the purchase price within 30 days. On November 25 Earl I. Rosenthal, attorney for the purchasers, cast doubt upon the marketability of the title, advising the corporation that the property had been owned by Anna M. Shaw at the time of her death in 1944, and that it was subsequently sold by her executors, but that it was questionable whether they actually had the power to sell it. On December 8 the attorney wrote another letter to the corporation demanding that it procure a confirmatory deed from the heirs of Mrs. Shaw on or before December 15. The corporation proceeded to do so, and on December 26 informed plaintiffs that it had received the instrument and would record it on Monday, December 29. But in the meantime on December 24 the purchasers had already entered suit to recover the amount which they had paid on the day of the sale. They alleged that they were ready and willing to consummate the sale prior to December 6, but defendant was unable to deliver a good and merchantable title to the property, and consequently they canceled the contract and demanded a return of the deposit. The Court held that the title was not marketable, and entered judgment accordingly in favor of plaintiffs for $2,000. From that judgment defendant took this appeal.
First. The chief objection to the title was that the will of Mrs. Shaw did not explicitly direct her executors to sell the property, and hence the sale was not valid and effectual, even though ratified by the Orphans' Court of Baltimore City. By mandate of the Legislature, the Orphans' Courts in this State shall not, under pretext of incidental power or constructive authority, exercise any jurisdiction not expressly conferred by law. Code 1939, art. 93, sec. 272. The Orphans' Courts thus have only a *380
special and limited jurisdiction, and the facts necessary to clothe them with jurisdiction must affirmatively appear upon the face of their proceedings. Norment v. Brydon,
From an examination of Mrs. Shaw's will, we find that she clearly expressed her intention to confer upon her executors the power to sell her real estate. She explains in her will that inasmuch as her daughter, Anna F. Shaw, had advanced the sum of $1,000 to pay for the building of a garage on one of her properties, it is her desire that, when the said property is sold, she may be repaid that sum; and she therefore bequeaths the sum of $1,000 to this daughter with the express direction that *381
it shall be paid to her "when the Executors shall sell my Garrison Avenue Home." In addition, she directs that her executors shall pay all her debts, and divide the residue of her estate into six equal parts. It appeared from the account of the executors that there was no source other than the real estate from which the debts and bequests could be paid. Here, then, was an imperative necessity to make sale of the real estate in order to carry out the wishes of the testatrix. We hold that even when a testator directs that his real estate shall be sold, without expressly naming those who are to sell it, and also directs that the proceeds of sale shall be applied to the payment of debts or legacies, the executors have the power of sale by implication.Peter v. Beverly, 10 Pet. 532, 565, 9 L. Ed. 532, 535; Ogle v.Reynolds,
Second. Plaintiffs also questioned the validity of the deed from Isidor Zulver and wife to Zulver Realty Company, Inc., the last deed in the chain of title. The ground of attack was that when the grantors signed the deed on January 3, 1947, the grantee had not yet been incorporated. The certificate of incorporation was signed by Isidor Zulver and his wife and three other incorporators on January 4, and was received for record and approved by the State Tax Commission on January 6. It is elementary that it is essential for the validity of a deed that there shall be a grantee capable of taking the title at the time of the conveyance. Duffield v. Duffield,
In Rotch's Wharf Co. v. Judd,
Third. Plaintiffs further assailed the title on the ground that the deed from Zulver and wife to Zulver Realty Company, Inc., was not recorded within six months from its date. The Maryland Conveyancing Act provides that every deed shall be recorded within six months from its date; but when the grantee in any deed shall take possession of the land purporting to be conveyed thereby, such deed, after being recorded (though not recorded within six months), shall have against all persons, from the time of taking possession, the same effect and validity, to all intents and purposes, as if the same had been recorded in proper time; but as against creditors who have become such before the recording of such deed, and without notice of the existence thereof, such deed shall have validity and effect only as a contract for the conveyance of the land. Code 1939, art. 21, secs. 14, 21, 22. In 1916 the Maryland Legislature amended the law by providing that whenever, by reason of the failure to record any deed within six months from its date, any creditors of the grantor become entitled under the Maryland statutes to assert their claims against the property conveyed by such deed, such creditors shall proceed in a court of equity to obtain a decree for the sale of such property within six months after the recording of such deed, or be thereafter absolutely barred from asserting their claims against such property. Laws of 1916, ch. 618, Code 1939, art. 21, sec. 23. Thus, under the present law, any creditors of the grantor in a deed are barred *384
from asserting their claims by reason of failure to record the deed within six months from its date, unless they proceed for the enforcement of their claims in the manner and within the period prescribed by the statute. Kinsey v. Drury,
Accordingly we have discovered nothing in the present record to show that the title was not marketable. A marketable title is a title free from encumbrances and any reasonable doubt as to its validity. No specific rule can be laid down as to what doubts will be sufficient to make a title unmarketable. The general rule is that the purchaser is entitled to a deed which will enable him to hold the land in peace and, if he wishes to sell it, to be reasonably certain that no flaw will appear to disturb its market value. However, a title, in order to be marketable, need not be free from every conceivable technical criticism. It is not every possibility of defect or even threat of suit that will be sufficient to make a title unmarketable. Objections based on frivolous and captious niceties are not sufficient. In other words, a marketable title is one which a reasonable purchaser, who is well informed as to the facts and their legal bearings, and ready and willing to perform his contract, would be willing to accept in the exercise of that prudence which business men ordinarily use in such transactions. Gill v. Wells,
It is true that defendant undertook to obtain a confirmatory deed, even though such an instrument was not necessary for a marketable title, and as a result there was a delay in settlement beyond the period of 30 days. It is significant that it was not until after the expiration of that period that plaintiffs demanded a confirmatory deed for the consummation of the contract. Even assuming that time was of the essence of this contract, plaintiffs waived the provision requiring settlement within 30 days by demanding a confirmatory deed after the expiration of that period. Evans v. Ozark Orchard Co.,
As the evidence failed to show that plaintiffs were entitled to have their deposit of $2,000 returned, the judgment in favor of the plaintiffs must be reversed.
Judgment reversed without a new trial, with costs. *386