Bay v. Posner

Fowler, J., delivered the opinion of the Court. This is one of the many cases which from time to time are brought here on appeal from pro forma orders for the purpose of perfecting titles. The law has, wisely, not required that titles to real estate shall be absolutely perfect and free from every possible doubt. In the case of Gill vs. Wells, 59 Md., 492 , after saying that no general rule can be laid down as to what doubts will be sufficient to make a title not marketable,. this language is used: “A threat or even the possibility of a contest will not be sufficient.

The doubt must be considerable and rational, such as would ⁴⁷ and ought to induce a prudent man to pause and hesitate; * * * * such as to produce real, bona fide hesitation in the mind of the Chancellor.” With this statement of the genera] rule in view, we will proceed to examine the objections relied on by the appellee to show that the title of the appellant to the property in question is not a good and marketable one: 1. That the grantee’s name is omitted in the granting clause of one of the deeds under which the appellant claims. Not much reliance was placed upon this objection, and properly so, for we can see no force whatever in it as applied to the deed in question from Nesbit to Williamson, dated 18th September, 1810, and'recorded in Liber W. Gt., No. 112, fob 24, &c. It is true that the name of Williamson the grantee is omitted from the granting clause; but it fully and clearly appears from the face of the deed that Nesbit was the party of the first part, and Williamson the party of the other part, and that Nesbit sold to Williamson the lot of ground in said deed described, for the sum of three thousand dollars, and that Williamson was the person who was “to have and to hold the said lot of ground, &c.” This deed appears to contain the requisites of a good deed even under the requirements of our Code; the name of a grantor and the name of one wTho is “to have and to hold” the estate intended to be conveyed; a consideration, and a description sufficient to identify the premises, and the interest or estate intended to be conveyed.

Code, Art. 21, sec. 9. 2. The second objection is, “that the sale of the original fee reversion by the administrator, d. b. n. c. t. a., of Benjamin T. Hynson, under whom the appellants claim title was unauthorized by law and void.” By his last will Hynson devised and bequeathed all the residue of his estate, including his interest in the lot in question, to his children, and then follows this provision: ⁴⁸ “I hereby authorize and empower my executors, hereinafter mentioned, to sell any part or portion of my estate * * * as they may deem best, and upon such terms as the3r may think proper.” The purpose of such an authority or power given by the testator to his executor is not doubtful. As it might be, and indeed in most cases, is necessary to sell property, and especially city lots, in order to make division or partition among several tenants in common, as in this case, the power to sell is given to executors to avoid the delay and expense of applying to a Court of Chancery. And while in one sense the language here used may not amount strictly speaking to a direction to sell, yet it is quite certain that the intention of the testator was to direct the sale to he made by the executors, if a sale was or should be made.

The executors named in the will were, on their own petition, relieved from the executorship, and one of them, together with the late Orville Horwitz, were appointed administrators, d. b. n. c. t. a. The circumstances of this case bring it, we think, fairty within the provision of section 288, Art. 93 of the Code, which provides that where a testator directs his real estate to be sold, and the testamentary executor refuses or declines to act * * * * the Orphans' Court shall have power to appoint an administrator, de bonis ■non cum testamento annexo, to execute the trusts of the will, “in the same manner and to the same extent as the executor or executors appointed by will could or might do.” In Venable vs. Mercantile Trust and Deposit Co., 74 Md., 187 , it was held that the intention of the Legislature in passing this section of the Code, “was to confer upon the administrator c. t. a. all the power and authority to sell which the original executor derived from the will. “Any other construction,” it is said in the ⁴⁹ case just cited, “would, force the parties to Chancery proceedings, which it was the object of this Act to prevent.” (Decided 21st June, 1893.) 3. The third and last objection is, that the appellant is not the exclusive owner of the lot in question. It appears from the testimony, however, that she and her predecessors in title have been in actual possession for more than forty years.

And it must be admitted that inasmuch as during all that time they have had deeds for said lot, duly executed and recorded, they have been in under color of title — the descriptions in the deeds with the exception of the alleged error, if such there be, having corresponded exactly with the lines of occupation. Under these circumstances it seems to us unnecessary to discuss the effect of the alleged