Fertitta v. Bay Shore Development Corp.

Smith, J., delivered the opinion of the Court. This is the second trip to this Court of this case which had its origin in a surveyor’s error prior to World War II. That error caused construction by the State Roads Commission (the Commission) of the “Ocean Highway” from Ocean City to Fenwick Island at a place other than in the location described in the deeds and its plats. 1 See Fertitta v. Bay Shore Dev. Corp., 252 Md. 393 , 250 A. 2d 69 (1969), and the plats at pages 405 and 406 for a better understanding of this controversy.

We shall repeat only such facts from the earlier case as are necessary to an understanding here. Appellant, Rosemary Fertitta (Fertitta), was the appellant in the earlier case. Bay Shore Development Corporation (Bay Shore) and Skyline Development Corporation (Skyline) were the appellees there as they are here. In 1940 Fertitta’s father conveyed to the Commission ⁶¹ part of Lots 1 and 2 of Block 87 on the plat recorded among the land records of Worcester County in 1891, to which reference will be made from time to time.

His land lay immediately east of Philadelphia Avenue as laid down on that plat. It was intended that the Ocean Highway coincide with and extend east and west from Philadelphia Avenue as shown on that plat. As constructed, the west side of Ocean Highway in the area of the Fertitta land was just east of Philadelphia Avenue as shown on the plat. In 1952 Fertitta’s father made a second deed to the Commission for the Ocean Highway.

That time it was by a proper description. Prior to either conveyance to the Commission, Fertitta’s father owned to the center of Philadelphia Avenue under the provisions of Chapter 684 of the Acts of 1892, now codified as Code (1957, 1966 Repl. Vol.) Art. 21, § 107. The Commission did not convey back to Mr. Fertitta that which had been mistakenly conveyed to it by him.

The second deed did recite that it was “in substitution for and in lieu of” the earlier deed. In the earlier action Fertitta sued Bay Shore in ejectment. The area then in dispute was the sliver of land between the Coastal Highway as constructed and the east side of Philadelphia Avenue plus the east half of the bed of Philadelphia Avenue in front of Lots 1 and 2. We held Fertitta possessed of an equitable title, but not of legal title.

Therefore, we said, she could not prevail in ejectment. We remanded the case without affirmance or reversal for further proceedings, stating that under Maryland Rule 515 it should be transferred to equity. This was accomplished. The chancellor then ruled against Fertitta except for the sliver varying in depth from .3 of a foot on the south end to 1.9 feet on the north end between Philadelphia Avenue and Ocean Highway.

There was no cross-appeal. Thus, the controversy here is relative to the bed of the east half of Philadelphia Avenue adjacent to Lots 1 and 2. We shall reverse the adverse ruling relative to the east half of Philadelphia Avenue. ⁶² This case may be somewhat more easily understood by reference to its cast of characters: Frank Fertitta — acquired land by two deeds, the first in 1936 and the second in 1938. Father of appellant, Rosemary Fertitta.

Rosemary Fertitta — inherited land from her father. William B. S. Powell — onetime owner of a much larger tract including land conveyed to Frank Fertitta by Lewis C. Merryman, trustee, in a chancery proceeding in Worcester County and that conveyed to Bay Shore on the east side of Philadelphia Avenue by M. Elizabeth Powell, trustee in a chancery proceeding in Worcester County. See Merryman v. Bremmer, 250 Md. 1 , 241 A. 2d 558 (1968), for an account of a sale of the Powell land with particular reference to Lots 7 and 8 in Block 87. Bay Shore — one of the appellees.

Formerly owned land on the west side of. Philadelphia Avenue. Grantee in quitclaim deed from the Commission of a portion of the bed of Philadelphia / Avenue including land here in dispute: A Jenkins corporation. Skyline — an appellee here and another Jenkins corporation.

Land here in dispute was conveyed to it by Bay Shore. Cullen S. Jenkins — father of Charles Jenkins and father-in-law of John Rolfe. Grantee in deed from M. Elizabeth Powell, trustee, of land on the east side of Philadelphia Avenue and a portion of the bed of Philadelphia Avenue. Also grantee in deed from Marion E. Mumford of certain land lying between the Coastal Highway as constructed and Philadelphia Avenue as laid down on the plat together with the easternmost half of the bed of Philadelphia Avenue in that area. ⁶³ President and promoter of Bay Shore.

Grantor in deed to Bay Shore including land acquired from Powell and Mumford. Charles Jenkins — present president of Bay Shore and Skyline. He succeeded his father upon his father’s death. John Rolfe — married a sister of Charles Jenkins, a daughter of Cullen S. Jenkins.

Grantee in deed from the Commission of a portion of Philadelphia Avenue. It was his title problems which triggered the request to the Commission for a quitclaim deed for a part of Philadelphia Avenue. In the earlier opinion we enumerated a number of matters which might be considered by the chancellor upon the transfer to the equity side of the docket in determining whether Bay Shore had such notice of the Fertitta situation as to make it other than a bona fide purchaser for value from the Commission. One specific point was “whether community knowledge of the Philadelphia Avenue — Coastal Highway situation reached Bay Shore’s officers in such manner as to put them on notice of the second Fertitta deed.” At the second hearing the chancellor could not “find in the record any evidence that Bay Shore had any actual knowledge of the prior equities of Fertitta.” In finding that Fertitta had not met her burden of proof, he further said: “I find no evidence that any attorney had knowledge as to the divergence of the Coastal Highway and the Philadelphia Avenue situation specifically as it related to Block #87, and certainly there is no evidence that any attorney, prior to Mr. Williams in 1960, imparted to Bay Shore any knowledge of the Philadelphia Avenue divergence adjacent to Block #87.

Indeed, one would have to indulge in pure speculation to conclude that Bay Shore had knowledge of ⁶⁴ any circumstance that would put an ordinarily prudent person on inquiry.” Reference to the plat appended to this opinion, which the reporter is directed to reproduce, will show a sliver of land between the east side of the Ocean Highway as constructed and Philadelphia Avenue in Block 90. This land was conveyed by Marion E. Mumford to Cullen S. Jenkins and wife by deed dated May 3, 1957. It is described as “being situate on the westerly side of the Coastal Highway,” as “comprising the westernmost parts” of Lots 1 to 6, inclusive, in Block 90, and as “being the parts of said lots lying between the westernmost line of said Coastal Highway and the easternmost line of Philadelphia Avenue as shown on said plat.” A metes and bounds description is given showing a depth of 7½ feet along 31st Street, tapering down to a depth of 4 feet at 30th Street. In the “together” clause, after the usual language, appears: “and particularly all the right, title, interest and estate of the grantor herein to the portion of the bed of Philadelphia Avenue as shown on said plat lying westerly of the land hereby conveyed and between the southerly line of North 31st Street and the northerly line of North 30th Street.” In the contract of sale Miss Mumford agreed to sell “all lands located between 30th and 31st street in block 90 on the west side of the present beach highway and in front of that [sic] block 89.” , William H. Scott, a practicing attorney in Berlin in Worcester County, was called as a witness by Fertitta.

He said he prepared the deed from Mumford to Jenkins and wife at the request of Cullen Jenkins who was the one who “made [him] familiar with this transaction.” Scott was asked if Jenkins had any plats at that time. He replied: “A. Yes, I believe he did. I would have had to ⁶⁵ have had a plat in order to draw the description which is in that deed, and I believe he had a plat which he showed me which showed the lines of the Coastal Highway and the lines of Philadelphia Avenue.” He recalled that the plat covered more than one block, but did not know whether it covered Block 87. Scott had been acquainted with the actual divergence between the Coastal Highway and Philadelphia Avenue for “probably 10 years or longer” prior to the preparation of the deed in 1957.

There was placed in evidence a letter from Scott to Owen J. Mumford, the agent for Marion Mumford. It read in pertinent part: “I enclose a deed to be signed by Marion transferring to Cullen S. Jenkins and wife the parts of lots 1, 2, 3, 4, 5 and 6 in Block 90 North, which lie westerly of the Coastal Highway. Please read the description of the property carefully to see if the deed describes properly the land being sold, and note that in the together clause Marion transfers all her right, title and interest in the part of the bed of Philadelphia Avenue on the Sinepuxent Plat lying between North 30th and North 31st Streets. Scott was asked whether there was a requirement in the Code relative to recordation of plats of the Commission, to which he replied in the affirmative.

The record then is: “Q. And those plats as recorded now and as recorded in 1957 showed the lines of the Coastal Highway as it now exists, did they not? A. Yes, they did; at least one in this chain of title Block #90 did. That was given in 1952 by Mrs. Mumford to the State, and it showed the highway as it had been constructed, the right-of-way lines as the highway had been constructed.” Almost simultaneous with the deed from Mumford to ⁶⁶ Cullen Jenkins and wife was a deed from M. Elizabeth Powell, trustee, to Cullen Jenkins and wife. The deed was actually dated June 12, 1957.

It recites, however, a private sale to Jenkins, reported “in the Trustee’s thirteenth report of sale,” ratified by the Circuit Court for Worcester County on May 20, 1957. The source of title recited for Powell in that deed is the same source as that recited in the deed to Frank Fertitta, which also came from Powell’s estate. The deed recites the conveyance of “all the right, title and interest of the said William B. S. Powell, deceased, and of those claiming by, through or under them, in and to all those lots or parcels of land, beds of streets and avenues * * * located on the westerly side of the Coastal Highway * * * and bounded in part by the westerly side of said Highway, bounded on the south by the center line of North 29th Street, bounded on the North by the center line of North 32nd Street and on the West by the waters of Sinepuxent Bay.” Reference to the attached plat will show a part of the land thus conveyed. It began “at a point formed by the intersection of the center line of North 29th Street with the westerly line of the said Coastal Highway.” It then followed that line “to the southwesterly corner of Lot No. 2 in Block 87 * * * where the easterly line of said Philadelphia Avenue crosses over the westerly line of the Coastal Highway.” 2 From there the description proceeds “in a westerly direction, by and with the southerly line of said Lot No. 2 * * * for a distance of 30 feet to a point formed by the intersection of the southerly line * * * so extended with the center line of said Philadelphia Avenue.” It then runs in a northerly direction with the center of Philadelphia Avenue to the center line of North 31st Street.

Blocks 88 and 89 fronting on Philadelphia Avenue were embraced within the deed. It recited that it was intended to convey “all of Philadelphia Avenue * * * included within the metes and bounds.” The record does not tell us what, if any, understanding ⁶⁷ had previously been reached by the Powell estate with the Commission. It will be noted by an examination of the original right-of-way plat reproduced in 252 Md. 405 that the Ocean Highway was originally intended to take the front part of each lot in Block 88. In 1959 Cullen Jenkins and wife conveyed to Bay Shore a number of parcels of land including that acquired from Powell and Mumford, using the same descriptions.

In 1964 Bay Shore contracted to sell a tract of land to Skyline. The description used in the area here in controversy was the same as in the Powell deed. The contract was executed on behalf of both corporations by Charles Jenkins as president. The actual conveyance in 1965 started at 29th Street and the Ocean Highway.

It then ran “by, with and binding upon the westerly property line of said Ocean Highway” to 31st Street, so that it actually included within its area not only the area here in dispute, but the sliver of Lots 1 and 2 of Block 87 between Philadelphia Avenue and the Ocean Highway to which we have previously alluded and which was not in the conveyance from the Commission to Bay Shore. It purported to be in accordance with a 1965 survey. Background for the conveyance from the Commission to Bay Shore was supplied by Messrs. Marcus Williams and Charles Jenkins.

Mr. Williams said he examined title to land owned by Rolfe. Rolfe desired to make a mortgage for the purpose of building a home. Rolfe owned lots on the west side of Coastal Highway. Mr. Williams found a problem “because of this old Sinepuxent Beach Plat and the overlap.” He reported this to Rolfe.

Ultimately, a meeting was held between Messrs. Cullen Jenkins, Rolfe, and Williams for the purpose of Mr. Williams’ explaining to Mr. Jenkins what he found. As Williams put it, he “explained to Mr. Jenkins what [he] had explained to Mr. Rolfe about .the old bed of Philadelphia Avenue that cut through that land that he had bought there. [Jenkins] instructed, as [Williams] remember [ed] it, he instructed Mr. Rolfe to work with [Williams] in getting ⁶⁸ it straightened out.” The Charles Jenkins’ version of the matter was: “A. * * *