Kelso v. Stigar

Alvey, C. J., delivered the opinion of the Court. This is an action of ejectment brought by parties claiming to be descendants of Andrew Stigar, long since deceased, against the appellant, the defendant below, for the recovery of certain undivided interests in a parcel of land in the City of Baltimore. The parcel of land sued for is described in the declaration by metes and bounds, courses and distances, and as being the same piece or parcel of land described in a certain deed from Joseph Matthews, and others, trustees, to the defendant, bearing date December 23d, 1882, and which deed was duly recorded in the land record referred to. The foundation of the claim and supposed right of entry arises, as contended by the plaintiffs, by way of reverter, occasioned by the diversion from the uses and purposes for which the land in question was originally conveyed by Andrew Stigar, the ancestor, to John Oornthwaite and Gerard Hopkins, and their heirs, in trust, by deed dated the 19th of June, 1113.

That deed was made for a consideration expressed, and it declared the uses and purposes of the laird granted to be “for and to the use of and purposes following, that is to say, for the use of the society of Christian people called Quakers, inhabiting and dwelling in and near the town and county of Baltimore, in the province aforesaid, to enclose and keep the same for a■ burying place, to bury or ³⁸⁷ inter those of the same society that may from time to time depart this transitory life, and also to erect or build a meeting-house for the same society of people, for the public worship of Almighty God, or such other improvements as they, the said society, may think proper.” The Quakers entered into possession, and held and used the ground as the property of the society, and conveyances were made from time to time to keep up the succession of trustees; and certain special Acts of the General Assembly of the State were obtained to confirm rights supposed to require such confirmation, and to confer rights as to the use and disposition of the property. Acts 1793, ch. 20; 1812, ch. 158; 1821, ch. 130; 1852, ch. 268, and 1871, ch. 390. In the preamble to the last mentioned Act all the preceding legislation upon the subject is recited, and the Act then, in its preamble, recites: “Whereas, since the purchase of the burial ground out •of the limits of the city, there have been but few interments, and none of late years, within the burial ground on said property, and no probability of its ever again being used as a place of interment for the 'dead; and, “Whereas, both of said meetings, the one worshiping in the meeting house on said property, and the other worshiping in the meeting house on Lombard street, •comprising the monthly meeting of said Society of Friends, being desirous of disposing of a portion of said property not covered by the meeting house, for the purpose that out of the proceeds of sale or lease, of giving-education to the children of parents, one or both of whom may be members of the Society of Friends; and, “Whereas, John O. Turner, William Riley, John Brown and Joseph Matthews, having been appointed by their respective meetings trustees, the legal title to said property is vested in said trustees;” therefore it was enacted that the trustees above named, or their successors, were thereby authorized to sell and convey in ³⁸⁸ fee simple, or lease for ninety-nine years, renewable forever, such part of the property belonging to the monthly meeting of the Society of Friends, in the City of Baltimore, of which they were the trustees, not covered by the meeting house now standing thereon, in such lots, parcels or portions as to them, or their successors, might seem advisable, and to appropriate the proceeds to the purpose in the foregoing preamble mentioned. And all laws inconsistent with the Act were declared repealed.

It was by virtue of authority supposed to be derived from this Act of 1814, that the trustees of the Society of Friends made the deed to the defendant of the 23d of December, 1882. That deed makes special reference-to the deed of Andrew Stigar to the trustees, of the 19th of June, 1113, and recites the fact that the trustees executing the deed were the successors of the trustees named in the deed from Stigar to the trustees in 1113, and also of the trustees named in the Act of 1814, ch. 390; and without which right of succession, of course, there was no right to convey. The deed to the defendant is for part of the lot of ground conveyed and described in the old deed from Stigar to the trustees in 1113, and conveys the estate in fee simple, and describes the part conveyed by metes and bounds, courses and distances, and which description is the same as that set out in the declaration of the plaintiffs. The deed declares in terms that the part conveyed is part of the parcel conveyed hostigar to the trustees, referring to that deed specifically.

The deed to the defendant was accepted by her and was duly recorded, and the defendant entered upon, and has used and occupied the property under the deed; and she still holds possession thereof, and has placed valuable improvements thereon of a nature wholly different from those mentioned in and contemplated by the deed from Stigar to the original trustees. It is because of this diversion from the original purpose of the grant, and the ³⁸⁹ ceasing to use the property for the purposes for which it was originally conveyed to the trustees, that the descendants of Andrew Stigar now claim that they are entitled hy way of reverter to the estate. In the trial of the case below, the plaintiffs in support of their claim of title and right of entry, offered and read in evidence the two deeds — the one from Andrew, Stigar to Cornthwaite and Hopkins, trustees, and the other from Matthews and others, trustees, to the defendant. The first of these deeds came under consideration of this Court in the recent case of the Second Universalist Society vs. Dugan, 65 Md., 460 .

The trustees for the Society of Eriends or Quakers in Baltimore, by authority of the society, and under the supposed power conferred by the Act of 1852, ch. 268, disposed of a part of the ground acquired from Stigar, and which, hy mesne conveyances, became vested in the appellant in that case, and the latter contracted to sell the same to the appellee in that case, and the question was, whether a good, marketable title could be made. And this Court, mainly upon the authority of the previous case of Reed, Howard, et al. vs. Stouffer, 56 Md., 253 , held, that the title was not such as the appellant in that case could sell, as a clear marketable title, by reason of the defeasible nature of the titles conveyed by the two deeds in question there, the one from Stigar to the original trustees of the Quakers, and the other from Deaver to the same trustees for the same purposes as those declared in the deed from Stigar. In that case, this Court said: “ There having been a clear diversion of the property from the uses to which it was devoted by the original deeds, the rights of the heirs-at-law of the original grantors of the property, who, from the great lapse of time, may be supposed to b e dead, to have the land again hy reverter, have arisen and cloud the title of the appellant. It does not appear that the heirs of Stigar or of Deaver have, failed, or that ³⁹⁰ the reversion had escheated to the State before the Act of 1852. ” It was further held that the Act of 1852 could not have the effect of divesting vested rights of individuals, and thus make the alienations pursuant to that Act effectual in conferring a good and indefeasible title.

It is certainly true, that that decision is not to be treated as at all binding upon the defendant in this case, otherwise than as a mere precedent, affording persxrasive reason to the same conclusion. The defendant not being a party to that case, nor to the deed made by the trustees, under the Act of 1852, is in no manner concluded by that decision; and if we saw sufficient reason for coming to a different conclusion in this case, we should not hesitate to give the defendant the benefit of that conclusion. But we perceive no such reason as would justify a different conclusion in this case; and the Act of 1814, ch. 390, equally with the Act of 1852, ch. 268, was wholly incompetent to clothe the trustees with power to make a conveyance which could have the effect of divesting vested rights of property of others than those represented by the trustees. The plaintiffs in this case claim to represent and to be entitled to recover fourteen undivided eighteenths, the whole into eighteen parts to be divided; and they offered proof in support of their claim; and the defendant offered certain deeds, among-them the deed to herself from the trustees of December 23d, 1882.

The defendant contests the alleged right of the plaintiffs to recover upon several grounds: they will be considered in their order. 1st. That the parcel of ground sued for is not sufficiently identified and located as being part of the lot of ground conveyed by the deed of Andrew Stigar to Oornthwaite and Hopkins, trustees. And this question has been raised on locations made under a warrant of resurvey issued at the instance of the defendant. ³⁹¹ It appears that on the application for the warrant of resurvey the plaintiffs objected, because, as they contended, a survey was unnecessary; but the objection was overruled, and the warrant was issued. Under the warrant very extensive and complicated surveys were made, and plats returned, which were produced and offered at the trial, for the alleged purpose of showing that the lot or parcel of land described in the deed of Matthews and others, trustees, to the defendant, (and which description is set out in the plaintiffs’ declaration,) is not within the lines of the deed from Andrew Stigar to Oornthwaite and Hopkins, trustees.

To this offer the plaintiffs objected, as they had objected to the issuing of the warrant of resurvey; but their objection was overruled, to which they excepted. And though this exception is taken by the appellees in this case, who obtained the judgment below, by the Public Local Law for Baltimore County, where the case was tried, it is made the duty of this Court to consider and decide the question raised by the exception. Code of Public Local Laws, Art. 3, sec. 22. In the ruling as stated in this exception there was manifest error; and error, too, that involved the trial of the cause in great and unnecessary perplexity and confusion, as is amply shown by the record and plats produced in this Court. .The supposed difficulty in the locations that have been made do not arise in the location or identification of the land claimed and described in the declaration, but in regard to the location of the beginning line of the deed from Stigar to the trustees.

That beginning, according to the call, is at the end of John Deaver’s N. 13° E. 10 perches line of one acre of ground, and where there was at the time of the deed made, a stone put down, and running from said stone N. 13° E. 12 perches, &c. There has been no effort to show what has become of the ³⁹² stone, or where it stood. But the defendant has. undertaken to arrive at this beginning by locating in a particular way certain lines of two deeds of prior dates, of different parties, and for other land. The first of these deeds is that from Sligh to Young, dated Bov. 8, 1759, and the other is from Sligh to Stigar, dated the 16th of March, 1765, the latter deed calling to bound on the land of the former deed reversely two courses, viz., N. 2° 45' E. 27 perches; N. 58° 30' W., 3¿ perches, (this latter being the first line in the deed from Sligh to Young,) unto the end of the S. 17° E. 22 perches line of a part of Mountaney’s Beck, by conveyance of that date, made by Sligh to John Deaver; thence bounding on that part B. 17° W. 22 perches, to the end of the B. 73° E. 10 perches line of the said parcel of land; thence bounding on that line S. 73° W. 10 perches, and then north by a straight line to the beginning.

The whole apparent difficulty, as made by the location of the defendant, is in the manner of locating the course of the first- line of the deed-from Sligh to Young. That directs the course north, without call for any object at the end of the line, nor is there any call at the end of the second line, which calls to run south; whereas, according to the actual survey made of the ground, having ■regard to all the other calls, courses and distances of the deed, the course of such first line should be south instead of north; and this, according to the testimony of the surveyors who made the survey, is the only mode of location by which to embrace the area, and gratify all the other calls, courses and distances of the deed. The defendant did not attempt to locate and define the area of ground conveyed by the deed of Sligh to Young, but only located the two first lines thereof, without any attempt to close the survey, to test the accuracy of the location of the two lines surveyed. Bow, according to well established principles of location in this State, as ³⁹³ well as elsewhere, where there is manifest error in the grant in regard to descriptions of objects, courses or distances, the Court will enquire into the probabilities of mistake, as to the objects or courses called for, and look to the consequeneés which would result from rejecting the one or the other.

And in this respect there is no difference between the weight to be ascribed to a call for a boundary, or matter of description thereof, when referred to as the beginning of a tract or as the terminus of one of its lines. An error of description in a survey, says this Court in Wilson vs. Inloes, 6 Gill, 121, 165, 166 , adopted in a patent or grant, manifestly founded in mistake or falsehood, is insufficient to control other calls and expressions inconsistent therewith, and where the assumption of mistake in a single description, harmonizes all the rest of the grant, the Court will make such assumption. lb. And the same principle is fully sanctioned in the case of White vs. Luning, 93 U. S., 514 , where it was held, that as it. was manifest, from actual survey, that there'was error in the course given, in such case, in order to close the survey and maintain the grant, a course that was described as east should he read tuest. It must be borne in mind that the north 58° 30' E. 18 perches line, in the deed to Young is nota call made in the deed from Stigar to the trustees in 1773, nor is that line mentioned in this latter deed, nor is the deed for adjoining land: hut that line is resorted to and attempted to be located by a north course'; and when locating the subsequent deed from Sligh to Stigar, in which that first line in the deed to Young is referred to, as furnishing the course reversely for one of the lines in the later deed, the defendant disregards the course, and treats the course as erroneous in the later deed of Sligh to Stigar.

In thus reaching the end of John Denver’s north 73° E. 10 perches line of the one acre of ground convéyed to John Denver, referred to in ³⁹⁴ the deed from Stigar to the trustees, as the beginning of the lines of that deed, according to the defendant’s location, the result would he to throw the lines of the lot conveyed by Stigar to the trustees some twenty perches further north than they'really are; and thus show that the ground in question is not, by what is denominated legal locations, embraced in the lot conveyed by Stigar to the trustees. We have thus fully stated the principal question made on the locations, and which was much discussed by counsel at the bar; but we are at a loss to perceive in what respect the locations that have been made are material or necessary to the fair trial of this case. This is in no sense a case of disputed boundary or of a divisional line of the land claimed, as contemplated by the statute law of this State. Prior to the Act of 1852, ch. 177, our system of location of controverted land titles had become exceedingly artificial and technical, and in many cases not only produced delay and embarrassment, attended with onerous costs in preparing cases for trial, but often offered the means of defeating the efforts to attain justice.

To remedy this evil in our practice and procedure, the Legislature-, by the Act just referred to, and the subsequent Acts of 1872, ch. 346, and 1882, ch. 372, now embodied in the Code, adopted provisions with a view of simplifying the former practice of location, and of restricting the occasions when warrants of resurvey should issue. By section 77 of Art. 75 of the Oode, it is provided: icNo warrant of resurvey shall issue in any action of ejectment unless the Court shall be satisfied that there is a dispute about the location of the lands claimed in said action; nor shall any issue in other actions, unless there is a dispute about the location of the lands, for the injury of which damages are claimed; or unless the Court shall be satisfied that plats are necessary for illus ³⁹⁵ tration.” In the next section of the same Article it is provided: “Tn any action where the parties hold or claim under the same title the lands in dispute, no warrant of resurvey shall issue, except in cases where the parties claim different parcels under the same title, and it appears to the Court there is a dispute about the location of the divisional line or lines.” The statute then provides that the party upon whose application a warrant of resurvey shall issue in any action, shall first make the location of his claim and pretension, and such other location as he may think necessary to bring the cause fairly to trial. And in the following section it is provided that if either party shall make any surveys or locations which the Court may deem .unnecessary, such party may he required to pay the cost thereof. ■ From these provisions of the Code, it is very clear that it is incumbent upon the party applying for a warrant of resurvey to furnish evidence satisfactory to the Court of the fact that there is a bona fide dispute about the location of the property claimed, or the divisional line thereof, and that the Court ought not to grant the warrant of resurvey unless such satisfactory evidence he furnished. And if the warrant be issued, in the execution thereof, it is incumbent upon the party upon whose application it is issued, first to make location of his claim and pretension, and such other location as may he deemed necessary to a fair trial of the cause, before the opposite party can be required to proceed.

Here, in the nature of the case, there could he no necessity for the issue of the warrant or the surveys thereunder. The description of the land sued for is identical with that claimed by the defendant under the deed to her from the trustees, and which she locates, and about the location of which there is no conflict or dispute whatever. That the land embraced by the deed to her from the trustees is pari of the land conveyed by the deed of Stigar to Oornth ³⁹⁶ waite and Hopkins in 1113, is a fact