Corey v. Carback

Hammond, J., delivered the opinion of the Court. In 1951 Daniel Paul Corey and Joseph Albert Corey, the appellants, brought an action in ejectment in the Circuit Court for Anne Arundel County, against Richard T. and Hazel I. Carback and John J. and Rosalie Carback, claiming ownership of land in Anne Arundel County, described in the Amended Declaration by metes and bounds, courses and distances. The property so claimed and described is made up of three parcels, to each of which, title is derived in a separate way. Fundamentally, the contentions of the parties as to ownership are answered by determination of the boundary line between two contiguous tracts of land called respectively “Poplar Plains” and “Poplar Ridge”, the eastern boundary of Poplar Plains being the western boundary of Poplar Ridge.

In 1888 Bernard Oberman acquired title to Poplar Plains. In 1907 he conveyed two acres, comprising its, northeast corner, to Henry Jacob Wickart, Jr. and his wife. In 1910 he conveyed a one acre tract to the same grantees, the northern boundary of the one acre tract being the common boundary with the southern line of the first tract. In 1948 Wickart, by then divorced, conveyed the two tracts to John J. Carback and Rosalie Carback, his wife, two of the appellees.

The remaining part of Poplar Plains became vested in Bruner R. Anderson in 1933. In 1935 he conveyed a 13 acre tract to Daniel Patrick Corey and wife, the ³⁹³ parents of the appellants. The southern boundary of the one acre Wickart tract coincides with the easternmost part of the northern boundary of this 13 acre tract. Also in 1935, Bruner R. Anderson conveyed to Bertha H. Linthicum and A. Howell Linthicum what was left of “Poplar Plains”.

In 1937 Bertha H. Linthicum and others conveyed to the Coreys a strip of land 30 feet wide, which was the same land over which was to run an unopened road 30 feet wide. This proposed road had been included in the description in the deed of 1935 to Corey and his wife as follows: “. . . to the west side of a road to be left open thirty feet wide along the eastern outline of the whole tract, hereinafter referred to, said road extending along the easternmost side of the whole tract of land as an approach to the wharf on Back Creek and with the use of said wharf and road in common with others . . .” In 1950 Daniel Patrick Corey and his wife conveyed all of the property they acquired by the deed of 1935 and the deed of 1937 to their sons, Daniel Paul Corey and Joseph Albert Corey, the appellants. In 1951 Bertha H. Linthicum, widow, and others executed and delivered a deed to the appellants, in which it was recited: “WHEREAS, There is a residue of land lying between the Easternmost boundary of the property owned (or formerly owned) by Henry Jacob Wickart, as the same is described in a deed recorded among the said Land Records in Liber W. N. W. No.-6- folio 135, and the Westernmost boundary of the property now known as Poplar Ridge, and which was formerly owned by Joshua F. Johnson, Mabel V. Johnson, J. Purnell Johnson, and Lois P'. Johnson; and, ... “WHEREAS, the said Westernmost boundary of the said Poplar Ridge property was formerly in dispute, but was finally fixed and deter ³⁹⁴ mined by an Agreement between the said Daniel P. Corey and Mabel F. Corey, his wife, and Joshua F. Johnson, Mabel V. Johnson, J. Purnell Johnson, and Lois P. Johnson, dated December 4th., 1940, which said Agreement is filed among the papers in the case of Joshua F. Johnson, et al, v. Daniel P. Corey and Wife, No. 22 Trials, October Term, 1940, in the Circuit Court For Anne Arundel County. “WHEREAS, The said parties of the first part fully intended the said residue of land to be included with their original grants to Daniel P. Corey and Mabel F. Corey, hereinbefore referred to, and further that the said parties of the first part intended to convey the said residue of land to the said Daniel P. Corey and Mabel F. Corey by a Deed dated February 5th., 1941, but which said Deed, however, was not recorded There was a further recital that the parties desired to confirm title in the appellants.

The deed granted and conveyed, as one tract, by metes and bounds, courses and distances, all of the land conveyed in the deed dated 1935 from Bruner R. Anderson to Daniel Patrick Corey and his wife, and all of the land conveyed in the deed of 1937 from the grantors of the present deed to the said Daniel Patrick Corey and his wife, and the additional property referred to in the recitals. The description in the amended declaration in this case is the same description which appears in this confirmatory deed. In 1937 Joshua F. Johnson, and other Johnsons, acquared Poplar Ridge. The owners subdivided this tract into a number of lots.

Lot No. 108, Poplar Ridge, as shown on “Plat of Section 1 of Poplar Ridge” and recorded among the Plat Records of Anne Arundel County, is the westernmost lot in Poplar Ridge and the westernmost boundary of Lot 108 coincides with the easternmost boundary of Poplar Plains. The Johnsons conveyed Lot 108, with three other adjoining lots, to ³⁹⁵ Glenn W. Murray and wife in 1948, and Glenn W. Murray and his wife conveyed those lots to the appellees, Richard T. Carback and Hazel I. Carback, his wife, later in 1948. On January 6, 1939, Joshua F. Johnson and his co-owners, brought an action of trespass quare clausum fregit against Daniel Patrick Corey, the father, (but not his wife) in the Circuit Court for Anne Arundel County, alleging that Mr. Corey had entered upon their said land and cut down certain trees, and claiming $500.00 damages. This is generally referred to in the case as “No. 22 Trials, Oct. Term 1940”.

Upon the plaintiffs’ motion a warrant of resurvey was issued, directed to Edward Hall, Jr., county surveyor. No return of the warrant was ever made by the surveyor, but after Mr. Corey’s lawyer had struck his appearance, there was filed in the case, on December 4, 1940, an agreement between the plaintiffs, executed on their behalf by their lawyers, and the defendant, who executed it in proper person and as attorney-in-fact for his wife. This agreement established a boundary line between the property owned by the Johnsons and the property owned by Daniel Patrick Corey and his wife. The line agreed on was drawn on a plat prepared by the surveyor and filed with and as a part of the agreement.

This line is located 40 feet east of a line found by the Court to be the western boundary of Poplar Ridge. No order to settle the case was ever filed, and it was, and is now, carried as an open case. It was not entered on the Judgment docket or on the Judgment index. In 1950 Daniel Paul Corey and Joseph Albert Corey filed in the Circuit Court for Anne Arundel County a bill in equity for declaratory relief against the appellees, who filed a demurrer.

After a hearing thereon, the demurrer was sustained on the ground that the suit was essentially one to try title and the appellants had an adequate remedy at law. On April 28, 1951, the appellants brought in the same court an action in ejectment against the appellees, who filed a general issue ³⁹⁷ plea and a plea setting forth a defense, on equitable grounds of laches. The case was tried before the Court without a jury (Judge Clark, who heard the equity case the year before, sitting) and the Court decided that the appellants had title to two parcels of land, which are only a relatively small part of the property described in the amended declaration. Judgment for these two parcels of land and for one cent damages, and costs, was entered for the appellants, and this appeal is from that judgment.

On September 29, 1952, after the record had been transmitted to this Court, the appellants filed here a motion to strike out the judgment or for other relief. ^{396 397} From the tedious recital of the chain of title which has gone before, it can now be seen that the first parcel embraced in the land claimed by the appellants, is the northernmost 350 feet of the 30 foot wide strip of land referred to in the deed of 1935 from Bruner R. Anderson and others to Daniel Patrick Corey and wife, and later conveyed in fee by the deed of 1937 from Bertha A. Linthicum to the Coreys. The southernmost 500 feet of this 30 foot strip runs along the 13 acre tract acquired by Daniel Patrick Corey and later conveyed by him to the appellants, which is not directly involved here. The second parcel is a strip of land 40 feet wide and approximately 300 feet long, lying immediately east of the first parcel, and as has been said, the answer to the ownership of this parcel is the determination of the exact boundary between Poplar Plains and Poplar Ridge. The third parcel is the residue of the property, described in the amended declaration, 54.22 feet wide, at the southern end and adjoining the first parcel to the west.

The property of the appellees, John J. Car-back and Rosalie Carback, and the first and third parcels of the land claimed by the appellants, came from a common grantor, Bernard Oberman. It is admitted that the appellants own those parts of the first and ³⁹⁸ third parcels which were not included in the boundaries of the property conveyed to Mr. and Mrs. Carback by Wickart. The appellees, Richard T. Carback and Hazel I. Carback, say that the second parcel, claimed by the appellants, is actually the easternmost 40 feet of Lot 108 of Poplar Ridge, and they deny that the appellants have title to any of it. The answer to the dispute resolves itself in the determination of the location of two boundary lines, viz., the western boundary of Richard T. Carback and wife, and the eastern boundary of the property of John J. Carback and his wife.

The Messrs. Carback and their respective wives concede that whatever property lies between these two boundary lines is the property of the appellants. It will be appropriate to discuss parcels one and three before disposing of parcel number two, and the appellants’ motion to strike out the judgment. The description in the deeds from Oberman to Wickart and the description in the deeds from Wickart to John J. and Rosalie Carback, are identical.

These descriptions as to the first tract include a call to “a stake and stone now planted by the side of a bounded double chestnut tree standing on the west side of the road heretofore referred to as leading to the wharf on Bear Creek; thence running with and bounding on said road a northerly course to the place of beginning.” As to the second tract, the description includes this: “thence leaving the said outline and running with and bounding on or about the center of the road that leads to the wharf on Back Creek.” The Court below, in discussing parcels one and three, said this: “Parcels Nos. 3 and 1 must, I think, be' discussed together. Just how much land the plaintiffs hold in virtue of (1) the deed from Bertha Linthicum and others to Daniel P. Corey and ■ Mabel F. Corey of November 1, 1937, and (2) the confirmatory deed from the said Bertha ■Linthicum and others to the plaintiffs dated Juñe 19, 1950, depends entirely on the true ³⁹⁹ construction of the two deeds from Oberman to Wickart heretofore mentioned. In other words, the defendants, John J. Carback and Rosalie, his wife, now own the Wickart’s lots, and, as the conveyance thereof were made long before the conveyances under which the plaintiffs claim, the most the plaintiffs can own is what was left after the Wickart lots are carved out. In construing these deeds, we must bear in mind that the road leading to the wharf on Back Creek, therein mentioned, is not the straight strip, thirty feet wide, which the elder Mr. Corey acquired by deed dated November 1, 1937.

The road mentioned in said deed, as well as in the deed of November 14, 1935, was nothing but a contemplated road, running along the easternmost boundary of Poplar Plains, and it was never in fact opened. That is not only shown by the testimony, but by certain corrections made by interlineation in the description of the thirteen acres tract as contained in the deed from the elder Mr. Corey and his wife to the plaintiffs dated January 27, 1950. The word ‘proposed’, was twice interlined when referring to this road, and the words ‘intended to be’ were interlined in another place. The strip of land, thirty feet wide, to which the plaintiffs claim title in virtue of said deed dated November 1, 1937, is very well shown on the plat made by Mr. McCrone for the defendants, and offered in evidence as ‘Defendants’ Exhibit No. 2’, while the road in use when the Wickart grants were made, and which is still in use is not only shown on that plat, but on the plat made by Mr. McCrone dated November, 1951, and marked ‘Court’s Exhibit No. 1.’ ” The Court went on to find as a fact that the road, eight feet wide, existing on the property, is the same road referred to in the Wickart deeds.

He continued, “I ⁴⁰⁰ hold that, by the true construction and meaning of these deeds, Captain Wickart took to the center of said road leading to the wharf on Back. Creek. This is made necessary by the provisions of Code, Article 21, Section 114, and the decisions in Campeggi v. Wakefield, 157 Md. 229 ; and Maryland Telephone Company v. Ruth, 105 Md. 644 . . . . This means that I must give the plaintiffs all of that part of Poplar Plains which lies on the east side of the center line, of said road, and the defendants all that part thereof which lies on the west side thereof. ...

I gather from this that the defendants feel that because they did not actually eject the plaintiffs from all the land described in the amended declaration, the plaintiffs cannot recover. I cannot follow them in that. ... In any event, they never conceded the