Grant Coal Co. v. Clary

Robinson, J., delivered the opinion of the Court. This is an application for an injunction to restrain the appellee from prosecuting an action of ejectment, to recover a tract of land called “ Rhoda,” and also for the appointment of a trustee, to convey said tract to the appellant. ⁴⁴³ The bill alleges, that Gustavus Beall, under whom the appellant claims title, bought the land in question of Gerard Clary, the ancestor of the appellee, that the contract of purchase, the complainant is advised and believes, was in writing, but that he is unable to find the same, and cannot, therefore, state its terms and conditions; that the whole purchase money has been paid, that Clary died in 1850, without executing a deed, that in 1854, the Orphans’ Court of Allegany County, upon the petition of Beall, the purchaser, and the answer of the executors of Clary, directed them to execute a deed of said tract to him, and that the executors died without executing the same. The bill further alleges, that in pursuance of said agreement of purchase, Beall took possession of the property, and that it had ever since remained in his possession, and of those under whom the appellant claims. The following is a copy of the order of the Orphans’ Court filed as an exhibit with the bill: “ In the Matter of the petition of Gustavus Beall vs. The Executors of Gerard Clary, deceased. “The petition of Gustavus Beall, filed in this Court against the executors of Gerard Clary, and the answers of said executors thereto, having been read and considered, and the Court being informed by George A. Pearre, that the said Beall is willing to take the deed as the said executors are willing to grant it, “It is thereupon, this 14th of Nov’r, 1854, ordered and adjudged by the Orphans’ Court of Allegany County, that the executors of Gerard Clary, deceased, make, execute and deliver to the said Gustavus Beall, at the proper cost and charges of said Beall, a deed in fee simple, conveying to him the tract of land called ‘Rhoda,’ and also the piece or parcel of land described in the agreement of said Clary, bearing date the 4th of March, 1841, and marked on the back ‘No. 2,’ the conveyance of this last piece to ⁴⁴⁴ contain a clause of re-entry upon said land, in case any spirituous liquors are ever sold upon said land, or in case any tavern is ever erected thereon, and the said deed he thereupon void and of no effect.” The Act of 1846, chapter 279, in pursuance of which this order was passed, recites, “That whereas, it is represented to this General Assembly, that there are cases occurring in the several counties and cities of this State, wherein persons have made sale of real estate, and have died before receiving the purchase money, or conveying the same to the party purchasing, by deed, and whereas, the costs attending the making of deeds through the agency of our Courts of equity, are heavy and grievous to be borne in many cases,—therefore, Be it enacted, that the deed of the executors or administrators of persons dying, or having died as aforesaid, shall he good and valid in law, &c., * * * provided that the executors or administrators of the persons so dying, shall satisfy the Orphans' Court, * * * that the purchaser has paid the full amount of the purchase money.” The second section provides, that the money received by the executor, shall be returned by him as a sperate debt.

The order of the Orphans’ Court, it will be observed, does not set forth the fact, that the executors had satisfied the Court of the payment of the purchase money, but merely states that the Court was informed by George A. Pearre, that Beall was willing to take the deed, and that the executors were willing to execute it. The petition of Beall and the answers of the executors, which might have thrown some light on the subject have both been lost. It also appears, that the executors of Clary never executed