Evans v. Brady

Page, J., delivered the opinion of the Court. The bill in this case was filed by the appellees for the specific performance of a contract of sale of certain property, situated in Baltimore city. The appellant refuses to perform his part of the 'agreement because he alleges the appellees cannot make him a good and marketable title. It is contended by him that in the chain of title, the deed from Mary Hixon and husband to Henry Ewing, does not convey a fee, because of the omission of the word “ heirs ” in the granting clause.

Prior to the Act of 1856, ch. 154 (Code, Art. 21, sec. 12), the rule of the common law prevailed, and to create an estate in fee simple in a natural person, the conveyance must contain a limitation to such person and his “heirs”; and, subject to a few well recognized exceptions, this was an unbending rule, which would not allow of the use of equipollent words. Handy et al. vs. McKim, 64 Md., 570 . The deed now referred) to was made in 1829, and being-anterior to the passage of the statute, is subject to the rule of the common law. By reference to the deed itself, we find it first sets out the fact, “that Thomas Curtain, by indenture of deed, bearing date on or about the'fifth day of August, eighteen hundred and twenty-six, and recorded among the land records of Baltimore County Court, in Liber W. Gr., Ho. 182, folio 96, for the consideration mentioned, did convey unto Mary Randles, now Mary Hixon, her executors, administrators and assigns, all &c.” (here follows a description of the property), “being the same parcel of land heretofore conveyed by Christopher Walker to the said James Long, by indenture, bearing date the 10th day of May, 1806, and recorded among the land records afore ¹⁴⁴ said in Liber W. G., No. 89, folio 606, &c.; and are tbe same * * * mentioned and described in a certain deed of conveyance bearing date 22d January, 1812, and thereby granted and conveyed by William Wilson and Joseph G. I. Bond, executors of the last will and testament of James Long to the said Thomas Curtain, and recorded among the land records of the county aforesaid in Liber W. G., No. 116, folio 475, and reference therewith being had, will more fidly and at large appear.” And the said Mary Hixon and husband, then, in consideration of $700, convey unto “Henry Ewing,] his executors, administrators and assigns, all that before described parcel of ground, together with all and singular the buildings,” etc., and “ all the estate,right, title,interest,term of years to come, property, claim and demand,both in law and eguity,of the said Mary Hixon and Joab Hixon of, in, unto, and out of the same, or to any part or parcel thereof.” The deed of Thomas Curtain,, thus referred to, grants to • Mary Bandies, now Mary Hixon, the property in fee.

Tbe habendum clause, is as follows: “ To have and to hold the said described premises, with the appurtenances thereunto belonging, unto the said Mary Bandies, her heirs and assigns, to the only and proper use and behoof of the said Mary Bandies, her heirs and assigns forever.” It is apparent, upon an inspection