Arey v. Baer

Burke, J., delivered the opinion of the Court. It appears from the record that in the year 1833 and prior thereto there was an alley twenty feet wide, beginning at Charles street at a distance of about eighty feet south from the intersection of Charles and Pratt streets in Baltimore City, and' running parallel with Pi'att street. This alley, which appears to have been a private alley, crossed or bisected the property mentioned in these proceedings, which ⁵⁴² was then owned in fee simple by the Baltimore & Ohio Railroad Company. The railroad company did not own the fee in this alley; but under the terms of the grants to it in 1831 and 1833 that company acquired an easement or a right of way in the alley.

Whether it originally ran to Light street does not appear, but it probably did. It was known as Rogers alley. In 1855 the Baltimore & Ohio Railroad Company conveyed to Joseph E. Donovan a portion of its property which bounded on this alley. In the description of the lots conveyed to Donovan no mention is made of Rogers alley, a portion of which was embraced in the deed to him.

In 1856 Donovan leased a portion of this lot to Christopher O. ILyatt, and in this deed Rogers alley is not mentioned. By mesne conveyances as follows this leasehold estate became and now is vested in the appellees, viz, assignment. from Chritopher C. Hyatt to John Henderson, dated May 7th, 1877; assignment from John Henderson to James E. Mason and Samuel C. Mason,, dated Eebruary 1st, 1892; assignment from Alice R. Mason et al. to the appellees, dated 21st day of Hovember, 1906. On the 27th of March, 1909, the appellees entered into an agreement with the appellant for the sale of this leasehold estate. This agreement recites that the appellees agrees to sell and the appellant agrees to purchase the building and premises in the City of Baltimore, known as Ho. 21 and Ho. 23 East Pratt street, fronting thirty-nine feet six inches, more* or less on East Pratt street, and having an even rectangular depth of about one hundred' and forty feet, more or less, to the north wall of the property recently erected by the appellees, said lot being free from encumbrances, and with a good and marketable title, subject to an annual ground rent of seven hundred and fifty dollars ($750) at and for the sum of eighteen thousand five hundred dollars ($18,500); one thousand dollars was paid in cash as a deposit upon the purchase price, and the balance thereof to be paid in cash within thirty days from the date of the agreement.

There are a number of other provisions in the contract; but these ⁵⁴³ need not be noticed as they are in no way involved in this case. The appellant refused to complete the contract, and the vendors filed a bill for specific performance of the contract of sale. The sole reason why the appellant refused to take the property is stated in his answer to be that the appellees “are not possessed of said property by a good and marketable title, and are unable to convey to this defendant such a title for the reason that the property to be conveyed includes within its metes and bounds an alley twenty feet wide, called Rogers alley, which alley passes through the lot claimed to be owned by the complainants, and in which alley the plaintiffs have no title, but on the contrary the title is vested in others.” A replication was filed, and testimony was taken in support of the ease made by the bill, but no testimony was offered by the appellant. The lower Court decreed a specific performance of the contract as prayed, and the respondent has brought this appeal.

It thus appears that the single question to be decided is: Are the appellees able to convey to the vendor a good and marketable title to the property mentioned in the agreement? There is no question about the law of the case. That has been settled by innumerable adjudications, and a reference to a few cases in this Court will suffice. “It is the established rule in equity that a purchaser will not be compelled to take a title which is not free from reasonable doubt, and which might in reasonable probability expose him to the hazards of litigation.” Second Univ. Church v. Dugan, 65 Md. 460 .

It is said in Levy v. Iroquois Company, 80 Md. 300 , that: “The question as to what constitutes a marketable title has been, of course, the subject of a good deal of consideration by the Courts, and the books are full of cases in which the matter has been considered. The rule at one time was to decide in every case whether the title was good or bad, and to compel the purchaser to take it as good or dismiss the bill on the ground that it was bad. But as the judgment in such case bound only the parties to the suit, and those claiming under ⁵⁴⁴ them, and.' as the question might be again raised by other parties, and upon matters and evidence not before the Court in the prior suit, it was deemed to be a safer rule not to decide whether the title was absolutely good or absolutely bad, but