Marden v. Leimbach

Urner, J., delivered the opinion of the Court. In this suit for the specific performance of an agreement for the sale of land the appellant, who was the purchaser, objects to the title offered upon the ground that it is not good and marketable. It appears from the record that the property contracted to be sold is a lot of ground containing six acres situated on the Severn river' and known as “Cypress Point”. This was originally part of a larger tract devised, under the designation of “Piney Grove Farm”, to Charles J. Stewart by the will of his mother, Virginia Levier, probated in 1885, and conveyed by the devisee to Theodore Leimbach, the vendor and appellee in this case, and to Juliane Leimbach, his wife, as tenants by entireties.

On December II, 1902, the grantees just named joined in a deed of the property to William Harrison in trust for the benefit of Theodore Leimbach for life with power to the life tenant “to sell, grant, convey, assign and dispose of said ground and premises absolutely,” and with remainder as to the property not ²⁰⁸ disposed of under the power to such person as the beneficiary for life might appoint by will, or, in default of such appointment, to such person as would be entitled to his lands under the laws of this State. Juliane Leimbach died about February 1st, 1907, and her surviving husband on March 20th following exercised the power of disposition reserved in the last-mentioned deed, by conveying all of the land it embraced to Mary K. McCormick, an unmarried woman, in fee simple. The deed by which this conveyance was accomplished expressed a consideration of five dollars and referred specifically to the power under which it was executed. The grantee immediately, by a deed of the same date and reciting the same nominal consideration, reconveyed the property to “Theodore Leimbach for and during his natural life and after his death unto William E. Leimbach and George Leimbach, trustees as hereinafter mentioned,” * * * “To have and to hold” * * * “unto and to the proper use and benefit of the said Theodore Leimbach, for and during his natural life and no longer, reserving, however, unto the said Theodore Leimbach the right during his life to sell, grant, convey, assign and dispose of the said ground and premises or any part thereof absolutely * * * and from and immediately after the decease of the said Leimbach, then unto William E. Leimbach and George Leimbach, trustees, who shall so soon after the decease of the said Leimbach as may be practicable sell” the land conveyed and distribute the proceeds among the children of the life tenant in the manner prescribed in the deed.

On August 14, 1909, Theodore Leimbach, by a deed in which his second wife, Catharine, joined and which made no reference to the power reserved in the last-mentioned deed, conveyed the real estate it described to John Aul absolutely for a recited consideration of five dollars, and received from him an immediate reconveyance in fee simple upon the same expressed consideration. Subsequently, Mr. Leimbach entered into the contract of sale which is sought to be enforced in this suit. ²⁰⁹ There are two objections raised by the appellant against the title. The first is that in the deed from Mary K. McCormick to the appellee the granting clause created only a life estate in his favor, with remainder to the trustees named, and that this is in conflict with, and must prevail over the habendum clause, which, by conferring an absolute power of disposition upon the life tenánt, would, if operative, have the effect of enlarging his interest to a fee simple estate. The second objection is that if the appellee is regarded as having acquired under the McCormick deed a life estate coupled with the power to dispose of the property absolutely in his lifetime, then his deed to Aul and the simultaneous reconveyance to himself were not sufficient to invest him with a fee simple title because these transfers made no reference to the power which they are claimed to have exercised.

The latter objection