Berry v. Derwart

Alvey, J., delivered the opinion of Court. This case was taken from the jury by the instruction given hy the Court below, and, as the case was presented on the part of the plaintiff, we do not see that the Court could have done otherwise. The action was ejectment for the recovery of a lot of ground in the City of Baltimore, on Lee Street. To maintain the action, it was necessary that the plaintiff should have shown that he had, both at the time of the institution of the suit and at the time of trial, the legal title and right to possession of the premises sued for.

Carroll vs. Norwood, 5 H. & J., 155 . Without showing this character of right in the premises, there could be no recovery by the plaintiff. In the chain of title produced by the plaintiff there was a deed from Keener to Armstrong and Dulin, trustees, dated 29th of November, 1841. This deed contains no description of the lot sued for in the body or granting part of it, but refers to a schedule annexed for specification and description of the property conveyed; and the description in the schedule, which is supposed to embrace the lot sued for, is given thus: “Eive building lots on Lee, near Cove street, 102 feet, @ 1.25 per foot.” It also appears from this deed, that the property embraced by the description just recited, was conveyed subject to a mortgage from Keener, the grantor, to The Farmers’ and Planters’ Bank of Baltimore.

The deed of trust to Armstrong and Dulin contained a power of sale, and it is under and through these trustees, by virtue of the power of sale, that the plaintiff claims title to the lot sued for. Neither the' mortgage, nor any release thereof, was offered in evidence, so far as it appears from the bills of exception taken at ⁷² the trial; and the admission in evidence of the deed of trust made hy Keener being subject to exception by the defendants, the exception was taken by way of prayer for the exclusion of the deed from the jury; which prayer the Court granted, upon the ground that the deed contained no sufficient description of the property in suit. The Court also instructed the jury that there was no sufficient evidence before them to prove legal title in the plaintiff, and therefore their verdict should he for the defendants. Upon these rulings of the Court, two questions arise: First, whether the deed to the trustees contains a sufficient description of the property to pass the title thereto; and, secondly, whether the Court was right in giving the instruction that there was no sufficient evidence to show legal title to the property in the plaintiff. 1.

It is perfectly well settled, both upon reason and authority, that every deed of conveyance, in order to transfer title, must either in terms, or by reference, or other designation, give such description of the subject-matter intended to be conveyed, as will he sufficient to identify the same with reasonable certainty. Here, the deed not professing to convey all the property of the grantor, or even all of his lots or real estate on Lee street, there is really no description or designation of the five building lots on the one side or .the other of Lee street; and therefore it would he impossible do locate the lot claimed by the plaintiff, under the description contained in the deed. It is not a question of the sufficiency of the description of the property in the declaration, as