Erdman v. Corse

Roberts, J., delivered the opinion of the Court. The bill in this case is filed to enforce the specific performance of an agreement for the sale of certain real estate situate in Baltimore County. The land in question was sold by the executors of John Henry Keene, Sr., in pursuance of the power contained in his will, and the sale was reported to the Orphans’ Court of said county for ratification. The purchasers, who are the appellants here, have excepted to the ratification of said sale, and allege two grounds in support of their contention : 1.

Because the title which the appellees are able to convey is not good and marketable. 2. Because there is no proof in the record that the appellees were or are ready to comply with the contract of sale of said property, which requires the appellees “to remove the present occupants of said farm at their own trouble and expense (if any), and deliver possession to the appellants within a reasonable time from the date of the contract.” Without considering or passing upon said exceptions, the Orphans’ Court directed the proceedings in reference to the sale to be suspended in said Court, and authorized the executors to file their bill in the Circuit Court for the purpose of enforcing specific performance of said contract of sale, and' thereby dispose of the questions raised by the appellants as to the sufficiency of the title. The appellants having answered the bill, testimony has been taken in support of the respective contentions of the parties to this appeal, and the Court has decreed pro forma that the appellees are entitled to the relief prayed for, from which decree this appeal is taken. No question arises here as to the power of the executors to sell, nor is there any controversy over the ⁵⁰⁸ form or character of the written agreement for the sale of the land.

The first question and the only one of importance presented for our consideration is as to the title of the land which has been sold. The appellees contracted to convey a “ clear marketable title in fee,” to the appellants. It is admitted that a title depending on adverse possession is such a title as equity will compel a purchaser to take, which admission is based upon the decisions of this Court in Lurman v. Fowler, 75. Md. 272; Forman v. Wolf, April term, 1894, unreported.

By the terms of the contract of sale of the real estate in controversy here the appellees agreed to sell to the appellants, “ the real estate of the said John H. Keene, Sr., situate in Baltimore County, mentioned in his said will and known as the ‘ Laura ville Farm,’ ” for the sum of twenty thousand dollars, to be paid upon delivery of the possession thereof. It appears that John Henry Keene, Sr., died in the year 1894, seized and possessed in fee of a tract or parcel of land, which includes the farm in question. By his will, the testator, after the happening of certain contingencies therein set forth, directed said farm to be sold, which has been done. The testator acquired title to the “ Lauraville Farm” under the deed of conveyance to him of Charles Gehrman and wife, dated the 3rd day of January, 1846, and at that time entered into possession thereof and has continued in the undisturbed occupation and possession of the same to the time of his death.

Prior to his death the testator had sold and conveyed a small portion of said farm, but that conveyance in no manner affects the question under consideration here. But the appellants contend that whilst the record of the case clearly shows that Mr. Keene was in the exclusive possession claiming adversely to all the world from the date of Gehrman’s deed to him up to the time of his death, yet by the deed of David Stuart and wife to said Gehrman, dated June, 1844, there is to be found this clause, “ subject, nevertheless, to the adverse claims by possession, or otherwise, of Amos Reed, William Scharf, -Ettelman and - Williams, respectively, and those legally ⁵⁰⁹ claiming under them, or of some person or persons to certain parts or portions of the aforesaid tract of land called Ensor’s Study, containing in the aggregate of those claims, a quantity not exceeding thirty-five acres.” The above clause is found in the deed from Stuart to Gehrman, executed in June, 1844, but no reference is made to it in Gehrman’s deed to the testator Keene. There is no proof in the record which directly or indirectly tends to show that the land conveyed to the testator by Gehrman contains any part of that which is subject to the clause just quoted, or in any manner controlled by its terms. Assuming for the sake of the argument, that some of the parties mentioned in said clause are in being, the entry of the