Hammer v. Westphal

Ubneb, J., delivered the opinion of the Court. By an agreement in writing dated October 20th, 1911, the appellee contracted to purchase from the appellant in fee simple a lot of ground in Baltimore City described as lying on the east side of Collins avenue, formerly Irving avenue, 155 feet, 10 inches south from the Old Frederick road, fronting on Oollins avenue 243 feet with an even depth of 140 ¹⁷ feet to the west side of Norris alley. It was provided that upon payment of the purchase price of $5,062.50 a deed should be executed by the vendor conveying to the vendee a good and merchantable title. At the time of the execution of the agreement the appellant was the owner of a 99 year leasehold, renewable forever, subject to an annual rent of one cent, in a lot described in the lease as beginning 155 feet, 6 inches south of the Old Frederick road, and as having a frontage of 233 feet on Irving avenue, and a depth of 140 feet to Norris alley.

There was thus a deficiency of 10 feet in the frontage of the lot which the appellant contracted to sell as compared with that which he then held, and his estate was not equivalent to the fee simple title he had agreed to convey. The discrepancy of four inches between the descriptions in the agreement and the lease as to the location of the northern line of the lot was evidently a.n inadvertence. The lease under which the appellant acquired his lot was from Edward B. O’Keefe and wife and was executed August 31, 1891. It recited that the lot demised was a portion of the property described in a deed to O’Keefe and wife from John T. Mason, R., and wife, dated August 1st of the same year.

This deed conveyed to the grantee all of the lot of ground lying between the Old Frederick road on the north and a line parallel with and 200 feet distant from McHenry street on the south. The description contained in the deed to O’Keefe indicated a frontage of 360 feet, more or less, on Irving avenue, but by actual measurement the frontage between the northern and southern boundaries mentioned in the deed is about 400 feet, and, as the calls prevail over distances, the grantee in the deed, of course, acquired the whole of the ground included within the limits thus designated. The northern portion of the lot, fronting 155 feet, 10 inches on Irving avenue and lying immediately south of the Old Frederick road, having been otherwise disposed of, there remained in the ownership of O’Keefe at the time of his lease to the appellant a lot having a frontage of about 244 feet. ¹⁸ But as the lease purported to demise a lot fronting only jg88 feet south of the southern line of the separated portion, there Was left to the lessor a strip of ground about 11 feet wide immediately south of the lot leased to the appellant. In order to perfect his title to the land contracted to be sold, the appellant acquired by sheriffs deeds, in consummation of sales in execution of a judgment against O’Keefe, the interest and estate of the latter in all the land included within the original outlines previously described.

Deeds were also obtained from Mrs. O’Keefe assigning and conveying to the appellant all her inchoate dower estate in the property. The effect of these conveyances was to merge the leasehold and reversionary interests in the .lot described in the lease and to vest in the appellant a fee simple title not only to that lot but also to the adjacent strip on the south which the lease did not 'include. There were two sub-leasehold interests which the appellant had created in parts of the land originally demised, but these were extinguished by re-conveyance. The appellee declined to accept the title notwithstanding these efforts to make it conform to.the requirements of the agreement, and the present suit was brought to enforce its specific performance.

There is no dispute as to the right of the plaintiff to a decree if he has effectually supplied the deficiencies in his title existing at the time of the contract of sale. The rule is that the vendor need not have a marketable title at the time of the agreement, but is only required to be in a position to convey such a title by the time the decree is entered, ■provided that, as here, time is not of the essence of the contract and the vendor appears to have acted in good faith. Md. Construction Co. v. Kuper, 90 Md. 542 ; North Ave. Land Co. v. Balto.

City, 102 Md. 484 . The objections urged against the title are, first, that the interests acquired by the appellant under the sheriff’s deeds to which we have referred do not provide him with the good and marketable title contemplated by the agreement, and, secondly, that the surveys and evidence in the case show that ¹⁹ the location and extent of the ground in question are not susceptible of ascertainment with the requisite accuracy. In presenting the first of the objections stated the appellee does not contend that a sheriff’s deed is not an effective means of transferring title, hut he insists that as the only interest transferred is that which the judgment debtor may have had at the time the judgment was rendered, and as this would he subordinate to any outstanding, though unrecorded, liens on the property which he may have previously created, there is no sufficient assurance from such a deed that the title will not he