Gump v. Sibley

Bryan, J., delivered the opinion of the Court. Amsil H. Sibley contracted to sell to Moses B. Gump certain real estate in the City of Baltimore. He filed a bill in equity for the specific performance of the contract, and by consent, the Court passed a, pro forma decree commanding Gump to accept the property and pay for it. An appeal has been taken for the purpose of obtaining the opinion of this Court on the validity of the title to the property. ¹⁶⁷ George Weller was possessed of a leasehold estate in twenty-three acres of land in the city of Baltimore, renewable forever.

He subleased in eighteen hundred and eight, four acres of this tract to John Hildt, and covenanted that ■this sublease should be renewable forever; in this sublease ■each party covenanted that he would keep open on the north side of the four acre lot, and adjoining it, one perch of his ground running from Ross street to Price street (now Madison avenue), so as to make a street thirty-three feet wide for the mutual benefit of themselves, their heirs and assigns. • In eighteen hundred and nine he subleased another portion of the said twenty-three acres to Frederick Jourdan, renewable forever. This lot is described as beginning two -perches north, forty-three degrees west from a- corner of John Hildt’s lot, and bounding on an alley called School House alley, which is the street thirty-three feet wide mentioned in the lease to John Hildt. This was originally a private alley, and it does not appear ever to have been dedicated to the public; at all events it has been closed, and its site is now occupied by dwelling houses. The controversy is about the title to the northwestern half of it; that is to say, the portion not embraced in the lease to Hildt.

George Weller, by his last will and testament devised to Jourdan all his estate in the lot which he had leased to him; and the reversionary title in the twenty-three-acre tract is now vested in Sibley, the complainant below. As we 'have said, the lease to Jourdan describes the lot as bounding on School House alley. In Peabody Heights Company vs. Sadtler, 63 Md., 533 , the effect of such a description was considered. All the Judges who heard the case adopted the views of Chancellor Kent on the subject.

He says: “The established inference of law is that a conveyance of land bounded on a public highway carries with it the fee to the centre of the road, as part and parcel of the grant. The idea of an intention in the grantor to with ¹⁶⁸ hold his interest in a road to the middle of it, after parting with all of his right and title to the adjoining land, is never to be presumed. It would be contrary to universal practice; and it was said, in Peck vs.Smith, 1 Conn., 103 , that there was no instance where the fee of a highway, as distinct from the adjoining land, was ever retained by the vendor. It would require an express declaration, or something equivalent thereto, to sustain such an inference; and it may be considered as the general rule, that a grant of land bounded on a highway or river carries the fee in the highway or river to the centre of it, provided that the grantor at the time owned to the centre, and there be no words or specific description to show a contrary intent.” A majority of the Court held that the rule did not apply in that particular case, because stones were placed by the parties at the side of the road as bounders, and the deed called for these bounders, and the lines ended at them; they therefore decided that the roadbed was excluded by literal and exact description.

The same ruling was made in Hunt vs. Brown,75 Maryland,481. In this last case, after stating the general rule, it was said: “And, whatever may be the rule elsewhere, it is well settled in this State, that a grant of land by metes and bounds, and courses and distances, with calls for visible boundaries on the side of a highway; for instance, a call for a stone planted on the south side of a road, and running thence, by the south side of the road to another stone, these calls and boundaries will be construed as defining the limits of the property thereby conveyed; and the grantee under such a grant will not take the fee to the middle of the road. Such was the description of the property in the Peabody Heights Company case.” In the present case there is nothing to prevent the operation of the general rule, and therefore Jourdan’s title extended to the middle of School House alley, subject, of course, to the easement of the right of way over it. In 1833 Jourdan, for valuable consideration, conveyed a portion of ¹⁶⁹ Ms lot in fee simple to the Trustees of St. John’s German Catholic Church of Baltimore, describing its boundaries according to a plat annexed to the deed of conveyance, and made a part of it.

According to tMs plat the first line of the lot bounds on School House alley, and there are no calls in the deed for fixed objects, natural or artificial, to mark the ends of the lines. Under the rule wMch we have just cited, the title conveyed reaches to the middle of the alley, subject to the right of way. The lot contained less than two acres, and was purchased to be used, and was used, as a burial ground. It is contended that the deed is void under the thirty-fourth section of Declaration of Rights of 1776, and that no title vested in the grantee, because it was not stated upon the face of the conveyance that it was to be used as a burial ground.

The lot was purchased for a lawful purpose, and was used for a lawful purpose. If the decision in. Groveetal. vs. Trustees of the Disciples, &c.,33 Maryland,451,is to be construed as establishing the right of a grantor who had received full and valuable consideration, to vacate Ms deed, because it did not express on its face the lawful purpose for which the property was bought, tMs right vested in Jourdan as soon as he had delivered the deed. .Consequently the Statute of Limitations commenced running against him on that very day, and has been running for more than sixty years. The deed, even if void, could not be less than color of title, and the entry under it would constitute adverse possession to the extent of the boundaries contained in it; and a continuance of this possession for twenty years' would perfect the title against all persons not under legal