A. S. Abell Co. v. Firemen's Insurance

Fowler J., delivered the opinion of the Court. This is a special case stated, in the nature of a bill for specific performance, under the provisions of sec. 184, &c., Art. 16 of the Code. Its object is to obtain the decision of this Court upon the question whether the title to the property sold by the plaintiff to the defendant is a good and marketable fee-simple title, free from liens and incumbrances. It appears from the agreed statement of facts that the Firemen’s Insurance Company of Baltimore, sold at public áuction to the A. S. Abell Company, of Baltimore, the fee-simple lot of ground and improvements in that city, known as number 4 South street, for the sum of fifty thousand dollars, subject to the usual implied condition that the title should be as above described, that is to say, a good, marketable fee-simple title.

By the pro forma decree of the Circuit Court No. 2, of Baltimore City, in which these proceedings were instituted, it was declared that “none of the matters and facts set forth in said case render the title of the plaintiff to said property unmarketable, or other than such a good title in fee-simple as the defendant should be required to accept.” It was further adjudged by this decree that the purchaser, the A. S. Abell ⁵⁹⁸ Co., should upon the execution and delivery by the vendor of a deed in the usual and proper form, consummate the sale by paying to the vendor the purchase money due upon the sale. From this decree the purchaser has appealed. It becomes necessary, therefore, in the first place, to ascertain what are the facts upon which the appellant bases its .objections to the title, and secondly, to determine whether these facts and the law applicable thereto, justify the appellant in refusing to consummate the sale. (i) What are the facts?

It appears from the agreed statement of the special case stated that in' 1771 the then owner of the fee-simple title to the property in question executed a ninety-nine year lease, reserving an annual rent of six pounds, five shillings sterling, and containing the usual" covenant for renewal “during the coutinuance of the demise so created.” In 1802, William Cole, having become possessed of the leasehold interest thus created, conveyed it in trust to John Salmon in consideration of an intended marriage between himself and Isabella Salmon, the daughter of the grantee. The trust declared by this conveyance was upon such marriage for the sole and separate use of said Isabella for life and from and after her death “to the use and behoof of the children of said Isabella by the said William to be begotten, and their executors, administrators and assigns; if but one, then to the use and behoof of the said child and his or her executors,” &c. In case of the death of Isabella without leaving a child or children there was a limitation over to the grantor. The marriage referred to in the deed of trust just mentioned took place, and Mr. and Mrs. Cole had four children.

We are concerned with the share of only one of them in the property in question, Emeline, who married Charles Byrne and died intestate in 1838, while her mother was still living, leaving surviving her, her husband, Charles Byrne, and her three infant children. The equitable life-tenant,'Mrs. Cole, died February 1st, 1852, and very soon thereafter, on April 27th of the same year, a bill was filed in the Superior Court of Baltimore City for the sale ⁵⁹⁹ of this and other property and the distribution of the proceeds. The three surviving children of Mr. and Mrs. Cole, and the three infant children of Emeline Byrne, were made parties to the cause just mentioned. Charles Byrne, however, the husband of Emeline, was not a party.

By virtue of the decree of Sept. 18th, 1852, the property mentioned in the bill, including the property on South street, here in question, was sold. Robert Garrett & Sons became the purchasers of the South street property for nine thousand dollars, and the sale was finally ratified and confirmed on January nth, 1853. At the time of the institution of the proceedings in 1852, it was supposed that the South street property was fee-simple, but after the sale an agreement was filed between the parties to the cause and the purchasers, admitting that said property had by mistake been represented at the sale to be fee-simple property, whereas it was leasehold, and consenting “that an abatement equal to the capitalization at six per cent of said rent of six pounds, five shillings sterling should be made from the purchase-money; upon which the Court by order directed the auditor to allow said abatement in his account. And on the 30th May, 1853, the auditor filed in said cause his report and accounts wherein he divided the net proceeds of such sale into four equal parts, and sub-divided one of said parts into three equal portions, distributing one of said portions to each of said three children of Emeline Byrne, viz., one to Mary Byrne, one to Isabel Byrne, and one to Charles C. Byrne.” This distribution account was finally ratified on June nth, 1853.

It also appears that in September and October, 1853, orders ot Court were passed directing the trustee to draw checks for the amounts thus distributed to Emeline’s infant children, one check having been drawn to order of one of such infants, another to the order of an attorney of one of them, and a third check to the order of an attorney for the guardian of the remaining infant, who was appointed in Florida. It does not appear whether, in point of fact, the infants received their respective distributive shares. ⁶⁰⁰ By deed dated July 5th, 1853, the leasehold interest in the property so purchased by Robert Garrett & Sons was conveyed to the President and Directors of the Associated Firemen’s Insurance Company, the Messrs. Garrett, the original purchasers, uniting in said deed and reciting that since the sale to them they had assigned their interest, as purchasers, to said corporation. It is admitted that ever since the execution and delivery of said deed, the said insurance company and its assigns (the last thereof being the vendor, who is the Firemen’s Ins.

Co. of Balto., the plaintiff and appellee) “have been in the exclusive, uninterrupted, continuous, open and notorious possession of said lot of ground * * * * under claim of right and under color of title created by said sale and deed and said proceeding whereunder said sale was made.” In conclusion we should mention the futher important facts that in 1870 the original lease expired, and on November 20th, 1886, a new lease was executed by the owner of the fee to the appellee’s predecessor in title, who also on 25th June, 1897, purchased the fee and redeemed the outstanding rent. (2) Having thus fully stated the facts we will be able briefly to dispose of the controlling questions of law presented by this record. We do not propose to consider them all, for we think it entirely unnecessary to do so. It is conceded that the undivided fourth interest vested in Emeline Byrne was an equitable leasehold interest in the property which is the subject of this litigation, and it follows, therefore, that as the law of this State existed at her death in February, 1838, this vested one-fourth interest in remainder in the chattel real passed to her surviving husband, Charles Byrne, absolutely, for it was not until the Constitution of 1851 (Art. 3, sec. 38), and the Code of i860 (Art. 45, sec. 2),passed in pursuance thereof, that the common law rule by which a surviving husband was entitled, without administration, to all the chattels real of his deceased wife, was altered.

Before proceeding further it may be well to recall the general principles which should guide us in deciding whether the title before us is one which the defendant purchaser should ⁶⁰¹ be required to take. Obviously he ought to have what he has purchased and is prepared to pay for. But while it is settled that he cannot demand a title that is absolutely perfect, yet a Court of equity will see that he gets a title which is free from reasonable doubt. In the case of Gill v. Wells, 59 Md. 492 , it is said: “As to what doubts will be sufficient no general rule can be laid down.” Quoting from Dobbs v. Norcross, 24 N. J. Eq.

Rep. 327, this language was adopted in Gill v. Wells . “ The doubt must be considerable and rational, such as would and ought to induce a prudent man to pause and hesitate ; not based on captious, frivolous and astute niceties, but such as to produce real bona fide hesitation in the mind of the Chancellor.” See also the very recent case Chew v. Tome, extrs., &c., ante p. 244. Opinion by Jones, J., in which the general rule is expounded and enforced. This doctrine being then firmly established, it only remains •for us to ascertain whether the conceded facts and the inferences to be drawn therefrom render the title to the property here involved unmarketable or liable to the objections which have been so forcibly urged against it by the appellant. It was most earnestly contended on the part of the appellee that Charles Byrne was bound by the proceedings of 1852, which were instituted in the Superior Court of Baltimore for the sale of the property and the distribution of the proceeds.

But we are unable to adopt this view. It is conceded that he was not a formal party to the suit, and if'he is bound by the decree therein passed it must be because he was