Baumeister v. Silver

Boyd, J., delivered the opinion of the Court. The appellee filed a bill in equity to require the appellant to specifically perform a contract made by them, whereby the latter agreed to purchase a house and lot on' Fayette street in the city of Baltimore. The appellee agreed to convey a good and marketable title in fee-simple and the Court below having determined that his title was such as the contract provided for, and having passed a decree to that effect, this appeal was taken. The property belonged to one Samuel Hiner, who died in 1858.

He left a will, but did not appoint an executor or name any one to sell his property. The widow was appointed administratrix with the- will annexed, and on the 13th of December, 1858, she executed a deed for the property in question to Alexander McComas, which recites that by virtue and in pursuance of the power and authority vested in her by the last will and testament of Samuel Hiner she offered the property at public auction and sold the same to Alexander McComas. The deed acknowledges the receipt of the purchase-money and undertook to convey all the estate, interest, etc., of Samuel Hiner, and of the said Sarah Jane. The sale was not reported to or ratified by the Orphans’ Court, and it is conceded that the deed did not pass the title, beyond such interest as the widow had in the property.

But Mr. McComas took possession of the property ánd held the “uninterrupted, adverse, exclusive” possession of it from the date of the deed to the time of his death, which was March 12th, 1892. After his death a creditor’s bill was filed to sell this and other real estate owned or claimed by ⁴²¹ him, and this property was purchased by the appellee from the trustees appointed under that proceeding, and he has been in possession of it from the date of his deed, May 27th, 1893, to the present time. In this last-mentioned proceeding some steps were taken with a view of curing the defect in the title which we will hereafter refer to. Samuel Hiner was married twice.

He had no children by his second wife, but had two sons and a daughter by his first wife. When he died, his son, George N., was living, but the other son and daughter were dead. The deceased son, Henry, left a son, and the daughter, Elizabeth Mitchell, left two sons, Joseph and Samuel—the heirs living at the time of the death of Samuel Hiner being the son George and the three grandchildren above mentioned. The record does not show when the widow died, and therefore the appellant contends that it is not known when the right of entry of the Hiner heirs accrued, and that hence it cannot be determined whether they are barred by the adverse possession of Alexander McComas and those claiming under him.

His contention is thus stated in his brief: “The right of entry did not accrue until the death of Sarah J. Hiner, as she had a life interest in the proceeds oí the sale of the property, and constructively in the property itself until sold, subject to a .charge of two hundred dollars upon the property in favor George Hmer.” But is that correct? The will does not leave the property to the widow for life. It simply says: “After my death I desire that all the property of every description, real, personal and mixed, shall be sold (I mean all the property that may belong to me) and the proceeds divided as follows: First, my son, George N. Hiner, to receive the sum of two hundred dollars from the proceeds thereof. It is my desire that the property mentioned aforesaid shall be sold, and the proceeds thereof be placed on interest for the benefit and support of my wife, Sarah Jane Hiner, during her natural life, after deducting therefrom the two hundred dollars devised to my son, George, and after her death the amount left shall be divided between the two Sunday Schools ⁴²² of Sharp Street and Asbury Station of the Colored People’s Methodist Churches. ” It will be observed that the testator does not attempt to give his wife a life-estate in this or any other property he owned, but he directed that all of his property be sold, and then after paying his son the two hundred dollars (and while he does say so in that connection, of course, all of his debts, if any, and funeral charges had to be paid), the balance of the proceeds was to “be placed on interest for the benefit and support” of his wife, during her natural life.

It cannot be said, therefore, that he devised the property to her for life, and at most she only had an equitable interest in it. Independent of any question of estoppel by reason of the deed made by her, Mrs. Hiner could not have maintained an action of ejectment to recover the property, for it is well settled that the plaintiff must have a legal title and the right of possession of the premises sued for. Who then could bring such an action to recover this property? As we have seen, the testator appointed no one to make the sale and did not even name an executor, and it is conceded that the bequest to the two Sunday Schools is void.

The legal title to the property therefore vested at once in the heirs at law, subject to being' divested by a sale if properly authorized. In Magruder v. Peter, 4 G. & J. 329 , the Court referred to Sugden on Powers, 167, which states that “where a testator directs his estate to be sold, without declaring by whom the sale shall be made, if the fund be distributable by the executor, either for the payment of debts or legacies, he will take a power of sale by implication,” and the Court went on to say that “In Maryland a different course has been generally pursued, founded perhaps on an Act of the Assembly, passed in 1785, ch. 72.” That Act authorized the Chancellor to appoint trustees in such cases to sell the property and apply the proceeds to the purposes intended, and is still in force in this State, now being sec. 79 of Art. 16 of the Code. But as there was no executor named in this will, there was no power of sale by implication, such as spoken of by Mr. Sugden, and the only way a sale could have been legally authorized was by application to ⁴²³ a Court of equity. In Magruder v. Peter , the Court further said that the legal estate, mentioned in a clause of the will in which the testator expressed a desire that a certain tract of land be sold and the proceeds, together with his personal property, be applied to the payment of his debts, “vested in the children of David Peter, as his heirs at law, liable to be divested upon a legal sale,” a compliance with the terms of sale and payment of the purchase-money.

Their right to sue in ejectment was expressly maintained. In Seeger v. Leakin, 76 Md, 500, the testatrix left a number of legacies amounting to thirty thousand dollars, and gave her executors power to sell her estate, real and personal, not specifically devised or bequeathed. The Court said “the real estate is not devised to or vested in the executors, by any provision in the will; and in such case the executors have only a naked authority to sell; and in the meantime the freehold descends to the heirs at law, who are entitled to the profits thereof until sale made.” In Riser v. Perry, 58 Md. 112 , the testatrix devised a house and lot to her niece for life, directed her executors to sell them after the death of the niece, and undertook to leave the proceeds for purposes which were declared to be void. This Court adopted the opinion of Judge Alvey, who decided the case below, and he held that the power to sell conferred upon the executors and the bequests of the proceeds of sale were clearly void, “and being void, the real estate, the subject of the power, descended to, and became vested in the heirs of the deceased, at the time of her death, unless it be embraced by the residuary clause of the will.” Later in the opinion he held that it was not so embraced, but went to the heirs at law.

In this case the legacy to the son and the provision for the wife were valid, and therefore there could have been a sale of the property, but inasmuch as the real estate was not devised to any one, the only way it could be sold was by application to a Court of equity, and the legal estate vested in the heirs at law from the death of the testator. Whether the widow could have demanded of the heirs the rents and profits until a sale was made is not material, but it is perfectly clear that she ⁴²⁴ did not have a life estate in the property itself, and when Mr. McComas took possession the heirs could have maintained an action of ejectment against him and were entitled to collect the rents and profits. We do not question the authorities cited by the appellant to show that inasmuch as a remainder-man cannot institute an action of ejectment until the termination of the life estate, when there is one, therefore the Statute of Limitations does not begin to run against them until that time. Preston v. Evans, 56 Md. 476 ; Long v. Long, 62 Md. 33 , and other cases in this State are sufficient to sustain that doctrine, without.relying on decisions elsewhere.

But we are of the opinion that under this will the widow did not have such an interest in the property as to prevent the heirs at law from maintaining an action of ejectment against Mr. McComas, and so long as the property remained unsold by authority of the Court, they were entitled to, and could have recovered the property. The running of the Statute of Limitatations against them was therefore not prevented by reason, of the widow being still alive, even if it be conceded that she lived for many years after the death of her husband. 2. Having disposed of that question, we will now consider the rights, if any, of the hens at law in this property. There would seem to be no question about the one-third interest of the son George.

He lived in Baltimore and died in 1867. As McComas entered in 1858 the right of George was not barred at the time of his death, but his death did not stop the running of the statute, which had commenced to run in his life-time. In the case of Carter v. Woolfork, 71 Md. 283 , the second seetion of 21 James the First, ch. 16, is considered and the conclusion is thus stated with reference to the right of an heir of one who dies under disability: “We think that where a disability exists at the time when a right of entry on land .accrues, and the person entitled dies during the disability, the heir has ten years to make his entry; and that he is not barred then unless twenty years have elapsed since the right of entry first accrued. In other words he is entitled to twenty years from the origin of the title, and ten years from ⁴²⁵ the death of the ancestor; but that these limitations run concurrently and not successively.

We also think that no disability of the heir can protract these periods, or postpone the running of limitations. ” In the leading case of Dugan v. Gittings, 3 Gill, 138 , it was said "The rule is this: a party is protected by the disability that exists at the time his right of action first accrued, because the case is within the express terms of the saving clause in the statute. For the same reason, if there are in existence several disabilities, at the time the right of action accrues, the statute does not begin to run until the party has survived them all. But it is now firmly established, that you cannot prevent the operation of the statute by cumulative disabilities. * * * If subsequent disabilities were to be regarded, the right of action might be saved for centuries ; and the statute would be rendered incapable of