Cherry v. Stein

Ecceeston, J., delivered the opinion of this court. This bill filed on the 11th of September 1854, by the present appellant, (Cherry,) against the appellee, alleges, that Conrad Reineker departed this life possessed of certain leasehold estate in the city of Baltimore, and that, in 1853, letters of administration on his estate were granted, by the orphans court of said city, to Conrad R Fite. That he, as administrator of said ¹⁰ Reineker, “advertised for sale at public auction, on the twentieth day of April 1854, in the public newspapers published in said city, the following described lot and premises: all that lot of ground on the south-east corner of Baltimore and Liberty streets, eighteen and one-half feet front on Baltimore street by seventy-three feet on Liberty street, widening on Liberty street to thirty-five feet, occupied by Schwartz & Dix, confectioners; and that at said sale the said lot and improvements thereon were sold by the .said administrator,” to the complainant, for the sum of $20,000; that the complainant hath satisfied the said Fite the purchase money, and hath been put in possession of said lot and premises. The bill also states, “that the improvements on said lot consist of a three-story brick house on Baltimore street, fronting thereon eighteen and one-half feet, and extending about thirty-two feet, the rear wall of which said house is about thirty-four feet in width; and also a back building adjacent to said house, fronting toward Liberty street, leaving in the rear of said back building a portion of said lot in said advertisement mentioned, and sold to the complainant as aforesaid, of about four feet in width on its widest point, and narrowing to a point at the north-east intersection of the wall of said back building, with the wall of the building on Baltimore street.” The bill likewise alleges, that there were in the rear wall of the back building certain windows and lights which opened upon that portion of the lot ■ sold to the complainant and described as situate in the rear of the back building, the same being a triangle four feet wide at the widest point; adjacent to which open triangle there was also, at the time of the sale, an open lot then in possession of said administrator.

That the said back building and the windows and lights therein have been standing and used for above forty years, without let or hindrance; and that for the space of forty years the eaves and roof of said back building have projected over the said portion of the complainant’s lot four feet wide, and the water falling on said roof has been accustomed to run and drain over said four feet lot and the vacant lot adjacent thereto. The bill then charges, that the defendants wrongfully, and ¹¹ to the great injury and damage of the complainant, having dug away the entire portion of his lot in the rear of the back building to the depth of several feet, are proceeding to lay the foundation of a wall thereon, and are now actually engaged in building said wall in contact with the rear wall of the complainant’s back building, which wall being so erected, besides depriving him of a strip of the lot sold by Fite to him as aforesaid, will effectually stop up and darken and render useless the lights and windows of the back building aforesaid, and will prevent the projection of the complainant’s eaves and roof over his said lot, and the consequent drainage of the water therefrom, as the defendant’s have no right to do, to the great damage and injury to the complainant’s lot, building and improvements. The bill prays that the defendants may be restrained, by injunction, from digging away, or upon, the portion of the complainant’s lot in the rear of his back building, and from building their said wall thereon, and also from erecting said wall so as to darken and shut up the windows and lights in said back building; and from disturbing, removing, or any wise interfering with, the eaves and roof of the same, or with the full drainage of the water therefrom over the said lot in the rear of the back building, or over the vacant lot adjacent thereto. And there is a prayer for general relief also.

A. portion of the bill charges the defendants with doing injury to the north-east comer of the complainant’s house on Baltimore street, by digging with a view of making a vault, but his counsel have abandoned all claim to relief for any injury to this portion of the property, and therefore the subject is not now before us for consideration. With a view of describing the lot alleged to have been purchased by the complainant, he filed with the bill a plat as his “Exhibit A.” The answer of all the defendants, (Myer Stein, Samuel Stein, Daniel Stein, Solomon Stein, Henry R. Reynolds and J. Reynolds,) admits, that Conrad R. Fite advertised for sale, on the 20th of April 1854, the lot and improvements on the .south-east comer of Baltimore and liberty streets, occupied by ¹² Schwartz & Dix, confectioners; and that the complainant purchased the same for the sum of $20,000. But the circumstances of the purchase, as the defendants have been given to understand and believe, were, that Conrad R. Fite, as part owner and agent for the other owners of the entire property, advertised for sale the property on Baltimore street, bounded by Sharp, Baltimore and Liberty streets, well known as the old “Congress Hall,” there being upon the Baltimore street front three buildings adjoining each other: the most westerly occupied by Schwartz & Dix, the central building by Obandoff & Lauer, and the most easterly by John Gephart, Jr. And prior to the offering of said property at public auction, the complainant agreed with said Conrad R. Fite, to purchase “the lot and improvements on the south-east corner of Baltimore and Liberty streets, occupied by Schwartz &. Dix, fronting on Baltimore street 18|- feet, more or less, by 73 feet, more or less,' on South Liberty street,” for the sum of twenty thousand dollars, the condition of said purchase being, that the same should be “null and void in case the whole square, as advertised, should be sold together, otherwise to remain in full force.” With the answer, and as part thereof, the defendants filed a copy of the written agreement between the complainant and C. R. Fite, in reference to the sale and purchase of said property.

Which copy is marked S, No. 1. The answer further says, the whole square, as advertised, was not sold at public auction, there not having been made therefor an adequate bid, according to the judgment of the said Fite, and accordingly the lots and improvements thereon were separately sold; and the prior sale of the lot on the south-east corner of Baltimore and Liberty streets, to the complainant, was confirmed, according to the written terms thereof before mentioned, by the receipt, at public auction, of the bid of the complainant therefor, at the sum of twenty thousand dollars. The adjoining lot and improvements were, at the same time, sold at public auction to John Hurst for tiie sum of twenty thousand and fifty dollars; and a few days after said sale the said Hurst assigned his purchase, and aII benefit thereof, ¹³ to the defendants, Myer, Samuel, Daniel and Solomon Stein, co-partners, trading as Stein & Brothers. It is likewise stated in the answer, that in conformity with the terms of the last mentioned sale, the said Fite executed and delivered to the said Hurst a certificate of his purchase, wherein the terms of sale and the boundaries of the property sold were distinctly and accurately set forth, in these words, to wit: “Beginning on the south side of Baltimore street, at the distance of eighteen feet, six inches east from Liberty street, and running thence south about forty-two feet, as the line is located upon a plat of the entire property, recently prepared by Owen Bouldin, surveyor; then south-westerly by a straight line about eighty-two feet, seven inches, more or less, along the eastern walls of the warehouses, fronting on Liberty street, to the four-storv brick warehouse on Liberty street, now owned by C. R. Fite,” &c., &c.

A copy of which certificate of sale, marked S, No. 2, is filed with the answer as part thereof. Further answering the defendants say, that, by virtue of said assignment of purchase by said Hurst to them, (the said Myer, Samuel, Daniel and Solomon Stein,) they became the owners of said property. That upon the entire property, (known as Congress Hall,) at the time of these purchases, the buildings were old and dilapidated, and the large prices agreed to be paid therefor were owing chiefly to the value of the lots, and not the improvements thereon. That it was contemplated by the sellers, that whether the property should be sold in bulk or in parcels the old and dilapidated buildings would be torn down by the purchasers, to make room for more modern and substantial improvements; and the division thereof was made in reference to such contingencies.

Accordingly, as will be seen by comparison of the two written memoranda of sales, one to the complainant and the other to the respondents, Stein &■ Brothers, the division line between them was made to run with the improvements as they then stood; no more ground on the one hand having been sold to the complainant than was covered by the improvements occupied by Schwartz & Dix; and the western line of the lot sold to Hurst being made to run ¹⁴ along the eastern wall of the warehouses on Liberty street, and of course, therefore, along the eastern wall of the improvements upon the lot occupied by Schwartz & Dix and purchased by the complainant. And the respondents further say, that immediately after they, (Stein & Brothers,) purchased the lot and improvements sold to Hurst as aforesaid, they proceeded, in conformity with their design in the purchase of the same, to tear down the improvements for the purpose of erecting on the lot a modern and substantial store and warehouse, of nearly the entire depth of their lot, for the purpose of their business, which is a wholesale clothing business. That they made with the respondents, Messrs. H. & J. Reynolds, (builders,) a contract for thejbuilding of said store and warehouse, and before proceeding to excavate or build, they caused the line of their lot to be carefully and distinctly surveyed and located by Bouldin, the surveyor, who made the plat, according to which the sales of the various lots were made by said Fite.

That the lines of their lot were properly located with reference to the description thereof, contained in the written agreement between Fite and Hurst; which lines were strictly and carefully observed and followed in the building put upon the premises, up to the time of making the'answer. “The respondents admit it to be true, that, as they have built, as of right they might do, along the eastern wall of the warehouses on Liberty street, they have encroached upon a triangle (marked yellow) upon a plat filed with the complainant’s bill; but they deny that in so doing they have encroached upon any rights of the complainant, no part of said triangle having been purchased by the complainant, and all easements therein, in reference to water and light, being subordinate, (if any such exist, which these respondents do not admit,) to the superior rights of these respondents, (Stein & Brothers,) in reference to the improvements of their property.” The answer likewise denies that there is appurtenant to the complainant’s lot any prescriptive right to throw the water from his spouts or eaves upon the lot of the respondents, all such water going naturally and conveniently, as it ought to do, into Liberty street. It also denies, “that there are any ancient ¹⁵ lights appurtenant to said lot and improvements of the complainant, which are darkened or shut up by the improvements now being made by these respondents, all such lights, (if any there be,) being of recent date; and the entire improvements of the complainant being naturally and conveniently lighted from its front upon Baltimore and Liberty streets.” The defendants deny, generally and particularly, all averments contained in the bill, in reference to damage and injury to the rights of the complainant by the building then being erected by them. They also deny the existence of any prescriptive or other right, upon the part of the complainant, to keep open windows or to throw water from his roof or spouts, upon the lot purchased by them, in such wise as to interfere with the improvement of their property, in the mode in which they were then improving it. The following is the copy of the written agreement between the complainant and C. R. Fite, referred to in the answer as “S, No. 1:” “1 have this day purchased from C. R. Fite, administrator of Conrad Reineker’s estate, the lot and improvements on south-east corner of Baltimore and Liberty streets, occupied by Messrs.

Schwartz & Dix, fronting on Baltimore street 18J feet, more or less, by 73 feet, more or less, on South Liberty street, subject to the annual ground-rent of $4.44, for which I hereby agree and bind myself, my heirs and assigns, to pay him the sum of twenty thousand dollars, one-half of the purchase money, say ten thousand dollars, to be placed on permanent ground-rent of 6 per cent, per annum, payable quarterly from date of sale; and four thousand dollars, to be placed on ground-rent at 6 per cent., redeemable within five years from this date, interest payable quarterly; and the balance, say six thousand dollars, payable one-third in cash; the balance, say four thousand dollars, payable in three equal payments, say 6, 9 & 12 months, with interest from date; notes to be given for the several payments, with interest as above; this sale to be null and void in case the whole square, as advertised, shall be sold together, otherwise to remain in full force. ¹⁶ Witness my hand and seal this April 20th, 1854. Signed, T. F. Cherry, (Seal.)” “Witness: — G. H. Gist.” The following is a copy of the advertisement of sale referred to in the proceedings, and as published in the newspapers: “ Valuable site for a new Hotel on Baltimore street. — Old Congress Hall square will be offered at public sale on this day, 20th inst., at 4 o’clock, p. m., on the premises, that valuable square of ground, with improvements, embracing twenty stores and dwellings, occupying the entire square bounded by Baltimore, Sharp, German and Liberty streets, fronting ninety-three feet on Baltimore street, and the same on German street, by 188 feet on Sharp and Liberty streets, the whole subject to a small ground-rent of about $25. Being one of the most valuable and eligible squares in the city for a first-class hotel, in the heart of the business part of the city, and convenient to the Baltimore and Ohio Railroad depot. If the entire square is not sold together, a part of it will be sold in lots, viz: “No. 1.

The lot and three-story warehouse, south-east corner of Baltimore and Liberty streets, 18|- feet on Baltimore street, by 73 feet on Liberty street, widening on Liberty street to 35 feet, occupied by Schwartz & Dix, confectioners. “No. 2. Lot and three-story warehouse, 22 by 35 feet, on South Liberty street, adjoining the above. “No. 3. Lot and two-story warehouse, 22 by 35, adjoining the above on South Liberty street. “The whole of lots Nos. 1,2 and 3, subject to a small ground-rent of $4.44. “No. 4. The lot and three-story warehouse, on Baltimore street, next to the south-east corner of Baltimore and Liberty streets, fronting on Baltimore street 26|- feet by about 120 feet deep, occupied as two stores and dwelling.

Subject to a small ground-rent of $4.44 per annum. “No. 5. The lot and two-story store and dwelling, No. 9, North Liberty street, east side, 5 doors above Baltimore street, fronting 21 feet on Liberty street, running back to Little Sharp street 85 feet, occupied by a merchant tailor. Ground-rent $1.25 per annum. ¹⁷ “ Terms: One-third cash, the balance in 6 and 12 months, with interest and approved notes. “All the Congress Hail square and improvements may be placed on ground-rent, except $30,000, payable as above, one-third cash, balance in 6 and 12 months, with interest. “C. R. Fite, Administrator,” “Cannon Matthews, Auctioneers.” Upon the bill being hied an injunction was issued. After the answer came in, testimony on both sides was produced5 and upon the defendants’ motion an order dissolving the injunction was passed by the court, on the 23rd of October 1854, from which the complainant appealed.

The first question to be examined is, whether Cherry, by the sale to him, acquired a title to the small triangle claimed by the defendants ss included in the sale to Hurst, on which they have placed their wall, and is described on the plat filed with the complainant’s bill as being “colored yellow.” In speaking of the two parcels of property, one of which was sold to Cherry, and the other to Hurst, and by him to Stein &• Brothers, the former will be called lot No. 1, and the latter lot No. 4, these being the numbers by which they are designated in the advertisement. From the proceedings and proof it will be seen, that the entire property known as “Old Congress Hall” was advertised to be sold on the 20th of April 1854; the whole square to be sold without division if it could, but if not, then a part would be sold in lots; which lots were described, being numbered from 1 to 5 inclusive. This advertisement was signed by “C. R. File, administrator,” without saying administrator of whom'. Prior to the public auction, but on the same day, Cherry and Fite entered into the private agreement which has been mentioned as “S, No. 1.” After Cherry had signed this instrument the entire square was offered at public sale, but was not sold.

Subsequently,lot No. 1 being offered at public auction, was struck off to Cherry at his bid of twenty thousand dollars. Shortly after this lot No. 4 was sold to Hurst, who was present when lot No. 1 had been struck off to Cherry. ¹⁸ And subsequently Hurst assigned bis purchase to the defendants, Stein & Brothers. It is conceded, that the limits of lot No. 1, as described in the advertisement, include the disputed triangle, and that the same is also included in the description of lot No. 4, as set forth in -the certificate of sale to Hurst, which has been referred to as “S, No. 2.” If both contracts between Fite and. the two purchasers include the disputed property, although the two sales were made on the same day, and only a few minutes intervening, still Cherry, as being the first purchaser, acquired the better title. 5 Harris, (17 Penn.) Rep., 223. 9 Bingham, 305, in 23 Eng. C. L. Rep.

But the appellees insist, that according to the proper interpretation of the real contract of sale between Fite and the appellant, his purchase did not embrace the disputed triangle. They say he did not purchase his lot according to the description in the advertisement, but according to that set out in the private agreement, in which it is not said the lot should be 35 feet wide. And in view of the evidence before us, we think the appellees are right in supposing that the sale to Cherry did not give him a right to the triangle. The private agreement seems to have been the actual contract between the parties.

It begins by saying: “I have this day purchased from C. R. Fite, administrator of Conrad Reineker’s estate,” &c., and concludes with, “this sale to be null and void in case the whole square, as advertised, shall be sold together, otherwise to remain in full force.” Such an instrument constituted a valid and effective sale, subject to become a nullity upon a single contingency, which did not occur. The subsequent offer of the lot at auction, the same day, was quite useless so far as related to a sale between Fite and Cherry. The latter had already bound himself to purchase the property at $20,000. An unsuccessful effort to sell the square as a whole, and then proceeding to sell it in parcels to different persons, would be quite sufficient to put an end to the only contingency on which the private sale to Cherry was to be null and void, and by the express terms of the agreement would leave it a contract of sale “in full force.” ¹⁹ Moreover, Fite, in his testimony, says: “Deponent agreed to sell the corner property to Dr. Cherry for twenty thousand dollars, prior to the public sale, on condition that the entire property should not be sold, which agreement was in writing, and of which Exhibit No. 1, filed by defendants, is a true copy.

If the property had brought more at the sale the benefit would have been Cherry’s, if less his loss. “It was offered under this agreement between him and Cherry. This agreement was the agreement of sale between them, the property was sold according to this agreement, and not according to the printed advertisement, because the advertisement prescribed different terms of payment and different description of property.” And Fite, as a witness, also says: “Allow me here to say, that it was agreed between us, that the property was to go to public sale, and that Dr. Cherry was to have the benefit of any excess and suffer any loss over the sum agreed to be paid.” If “S, No. 1,” be the real contract of sale to Cherry, its terms show that he purchased of Fite, as administrator of C. Reineker’s estate; consequently the rational conclusion is that the property belonged to that estate, especially when, as here, no lines or description are