Frank Novak Realty Co. v. Trustees of the Orphans' Home

³⁹¹ Parke, J., delivered the opinion of the Court. This appeal is taken from a decree to enforce the specific performance of a contract for the purchase of a parcel of land sold by three corporations, known as the Trustees of the Orphans’ Home in Batimore City, the Trustees of St. Patrick’s School, Eells Point, in the City of Baltimore, the Board of Managers of the Dolan Children’s Aid Society, the appellees, to the Frank Hovak Realty Company, another corporation, the appellant. The refusal of the appellant to perform its contract was based on an alleged inability of the appellees to convey the property bought by a good and marketable title, and the soundness of this contention is the only question, which is presented on an agreed statement of facts authorizing any inferences of law or of fact rightfully to be drawn. The land in question is the residue of a tract which was originally in Baltimore County, but which is now within the boundaries of Baltimore City, and which was bought early in June, 1869, by the Reverend James Dolan, a priest of the Roman Catholic Church, from the executors of the estate of William Claggett, for a price payable partly in cash and partly on credit terms.

The sale was duly finally ratified and confirmed by the Orphans’ Court of Baltimore City on July 20th, 1869, and a portion of the purchase money paid by the purchaser, who afterwards died testate, and the residue was paid in part by his executors, and in part by the proceeds of certain of his lands which were sold for that purpose. At the time of his death, the priest was the equitable owner of the land so bought, and when he died, on January 12th, 1870, unmarried, without descendants or other known heirs, he attempted to dispose of his interest in said tract of land by a gift of a one-third interest to the “Young Catholics’ Friend Society,” a body corporate, in trust but without power of sale, for the purpose of establishing a children’s aid society; of another one-third interest to the Trustees of the Orphans’ Home in Baltimore City in trust, but without power of sale, for the support of the ³⁹² orphan boys and girls belonging to St. Patrick’s Parish, Fells Point, whose parents had died within the limits of that parish, in some Catholic orphan asylum or school until twelve years of age and then to be bound or placed in good Catholic families; and of the remaining one-third to the Trustees of St. Patrick’s School in the City of Baltimroe, for the purpose only of establishing a regular free school for boys and girls. In connection with another parcel of land, this will was before the Court in Novak v. Orphans’ Home (1914), 123 Md. 161 , and the devise of the one-third interest to the corporation known as the Trustees of St. Patrick’s School in the City of Baltimore was there held valid, while the first of those above mentioned was declared void on the grounds of uncertainty and of contravening the rule against perpetuities, and the second was likewise found to be within the rule against creating