Mayor of Ocean City v. Taber

Orth, J., delivered the opinion of the Court. This appeal concerns the ownership of an improved lot of ground at the northwest corner of Atlantic Avenue and Caroline Street in Ocean City, Maryland, which was occupied and used by the United States of America as a Life Saving Station for almost a hundred years. At the hub of the controversy is whether the United States acquired title in fee simple absolute through adverse possession or lost all its right, title, interest and estate in the property by realization of a possibility of reverter. I The relevant record title to the property devolves through three conveyances: 1) a deed dated 28 July 1876 from Stephen Taber and wife to Hillary R. Pitts, Benjamin Jones Taylor and George W. Purnell, Trustees (the Trustees), recorded among the Land Records of Worcester County in ¹¹⁸ Liber I.T.M. No. 4, folios 536-537 (the 1876 deed); 2) a deed dated 11 September 1878 from the Trustees to the United States of America, recorded among the aforesaid Land Records in Liber I.T.M. No. 6, folios 400-402 (the 1878 deed); 3) a deed dated 23 June 1967 from the United States of America to the Mayor and City Council of Ocean City, recorded among the aforesaid Land Records in Liber F.W.H. No. 220, folios 449-451 (the 1967 deed).

Involved in the controversy is a decretal order of the Circuit Court of Worcester County issued 18 August 1894 in equity action No. 1399, instituted on 27 August 1892, the proceedings of which are recorded in Chancery Record Liber F.H.P. No. 18, folios 404-445 and 550-553 (the 1892 chancery action). II On 15 January 1869 Stephen Taber and Hepburn S. Benson obtained a patent from the State of Maryland. The patent, preserved in the Hall of Records in Liber W. L. & W. S. No. 2, folios 326-327, gave Taber and Benson “The Lady’s Resort to the Ocean”, a 280 acre tract of land along the Atlantic Ocean in Worcester County. Taber acquired Benson’s interest by deed dated 9 October 1871 and recorded among the aforesaid Land Records in Liber I.T.M. No. 1, folios 591-592.

Stephen Taber created Ocean City, “desirous,” as he explained in the 1876 deed, “of conforming to the views and general public sentiment of the people of Worcester and the adjacent counties in their desire to establish a place as a sea-side Summer Resort and the promotion of the growth of the same.” Fifty acres of “The Lady’s Resort to the Sea”, with his acquiescence and approval, were “laid off into a town, with lots, streets and avenues, as is called and known as Ocean City”, and he granted the fifty acres to the Trustees by the deed of 1876, appending a plat of the proposed town. 1 The terms of the trust were set out in the habendum clause. The Trustees were to hold the property ¹¹⁹ “upon trust, that they or their successors shall convey the same, with as little delay as practicable, at the expense of the grantee or grantees named in the deeds in lots as they are described on said plat and according to their numbers; to such persons as draw the same at a distribution of said lots, made by the Stockholders of the Atlantic Hotel Company at the Atlantic Hotel at Ocean City on the thirty first day of August Eighteen Hundred and Seventy Five. And if there are any lots remaining which are not drawn at the aforesaid distribution, then and in that event, the said trustees or their successors are hereby authorized and empowered to sell and convey the same to such persons as they think proper or to make any other disposition of said lots they think proper and appropriate the proceeds thereof in such manner as they shall deem most advantageous to the interest of said Ocean City.” Lot no. 3, as laid out on the plat, was at the northwest corner of Atlantic Avenue and Caroline Street. Its exact size is not shown, for the plat reflects neither lot dimensions nor a scale.

It was, however, much larger than the size of the other lots except that of the Atlantic Hotel. It was bounded by the west side of Atlantic Avenue on the east, the north side of Caroline Street on the south and the east side of Baltimore Avenue on the west and was of irregular width. The deed of 1878 conveyed a part of lot no. 3 to the United States of America. The part conveyed was described as “beginning at the northwest corner of Atlantic Avenue and Caroline Street thence running westerly by and with the north side of Caroline Street one hundred feet thence northerly by a line parallel with Atlantic Avenue fifty feet then easterly by a line parallel to Caroline Street one hundred feet to Atlantic Avenue, thence by and with the west ¹²⁰ side of Atlantic Avenue fifty feet to the place of beginning, all in Ocean City, County of Worcester and State of Maryland.” The deed declared that lot no. 3 had not been drawn in the distribution and that a part thereof had been sold to the United States by the Trustees for the sum of one dollar.

The deed recited that the Secretary of the Treasury of the United States had been authorized by Act of Congress of 3 March 1875 “wherever he shall deem it advisable, to acquire by donation or purchase, in behalf of the United States the right to use and occupy, sites for Life Saving, or Life Boat Stations...” and that the Secretary of the Treasury deemed “it advisable to acquire on behalf of the United States the right to use and occupy, the hereinafter described lot of land, as a site for a Life Saving Station, as is indicated by his signature hereto....” The part of lot no. 3 granted by the deed was “for the purpose of a Life Saving Station, and also the right to erect such structures, upon the said land, as the United States may see fit, and to remove any and all such structures and appliances at any time, the said premises to be used and occupied, for the purpose named in said act of March 3, 1875. . . .” The habendum clause read: “to have and to hold the said lot of land and privileges, unto the United States from this date for the purpose aforesaid. And it is further stipulated, that when the United States shall fail to use the said Life Saving Station, the land hereby conveyed for the purpose aforesaid, shall, without any legal proceedings, suit or otherwise, revert to the said Trustees, their successors and assigns, absolutely, and they shall be entitled to re-enter upon and take possession thereof free from all encumbrances of every nature or kind.” The deed was signed and acknowledged by the Trustees and signed by the Secretary of the Treasury. The 1967 deed was designated a “Quitclaim Deed.” The United States of America was “Grantor”, and the Mayor and City Council of Ocean City, Maryland, was “Grantee.” It ¹²¹ witnessed that “the Grantor has remised, released and forever quitclaimed, and by these presents does remise, release and forever quitclaim any and all right, title and interest which [the United States] may have, on an ‘as is, where is’ basis” to two parcels of land and designated improvements thereon. The first parcel described was the lot conveyed by the 1878 deed. 2 The habendum clause read: “TO HAVE AND TO HOLD the premises herein granted unto the Grantee, its successors and assigns forever.” The deed expressly declared that it was “executed and delivered to the Grantee without representations, warranties or covenants, either express or implied.” Ill On 17 July 1973 an equity action for a declaratory judgment was instituted in the Circuit Court for Worcester County by Thomas T. Taber, Jr., et alii (appellees) against the Mayor and City Council of Ocean City (appellant), et alii.

Motions for Summary Judgment filed by appellees and by appellant were determined without hearing or argument by agreement. The motions were denied on 4 December 1975 with the suggestion that the parties “submit the entire proceeding to the Court upon the pleadings and exhibits in the file.” The suggestion was followed. On 17 December all parties, through their counsel, requested that the court “render an Opinion and Order based upon the pleadings and exhibits presently on file herein, after giving due consideration to the memoranda of the various parties filed herein, and render its decision hereon at its earliest convenience without a hearing or taking of testimony on this ¹²² matter.” The court honored the request, and its order came forth on 8 April 1976. Only the Mayor and City Council of Ocean City noted an appeal therefrom to the Court of Special Appeals.

We granted a writ of certiorari before decision by that Court. 3 IV Appellant would have the 1878 deed be ineffective. Thus, it reasons, the United States, and appellant through privity of estate, Gore v. Hall, 206 Md. 485, 491 , 112 A. 2d 675 (1955), would have acquired legal title to the property by adverse possession. Wilt v. Wilt, 242 Md. 129, 135 , 218 A. 2d 180 (1966); Hungerford v. Hungerford, 234 Md. 338, 340 , 199 A. 2d 209 (1964); Bishop v. Stackus, 206 Md. 493, 498 , 112 A. 2d 472 (1955); Ridgely v. Lewis, 204 Md. 563, 566 , 105 A. 2d 212 (1954); Columbia Bldg. Co. v. Cemetery, 155 Md. 221, 225-226 , 141 A. 525 (1928); Novak Realty Co. v. Orphans’ Home, 153 Md. 390, 393 , 138 A. 250 (1927); Peper v. Traeger, 152 Md. 174, 181 , 136 A. 537 (1927); Mayfield v. Safe Dep. & Tr.

Co., 150 Md. 157, 161-162 , 132 A. 595 (1926); Balto. Life Ins. Co. v. M. E. Church, 148 Md. 603, 608-609 , 129 A. 908 (1925); Singer v. Wyman Memorial Assn., 138 Md. 398, 409-410 , 114 A. 50 (1921); Amer. Colonization Society’s Case, 129 Md. 605 , 99 A. 944 (1917); Novak v. Orphans’ Home, Etc., 123 Md. 161, 167-168 , 90 A. 997 (1914); Mills v. Zion Chapel, 119 Md. 510 , 87 A. 257 (1913); Dickerson v. Kirk, 105 Md. 638, 639-640 , 66 A. 494 (1907); Regents v. Calvary Church, 104 Md. 635, 638-642 , 65 A. 398 (1906); Zion Church v. Hilken, 84 Md. 170, 171-172 , 35 A. 9 (1896); Gump v. Sibley, 79 Md. 165, 169 , 28 A. 977 (1894); Needles v. Martin, 33 Md. 609, 619 (1871).

The 1878 deed, on its face, was a valid conveyance by the ¹²³ Trustees to the United States of an estate in fee simple determinable of a part of lot no. 3. It would be ineffective only if the Trustees had no power to make the conveyance. The Trustees derived such power from the 1876 deed. Appellant points to the 1892 chancery action as holding that the provision in the 1876 deed authorizing the Trustees to sell lots not drawn at the distribution was “utterly null and void to all intents and purposes whatever, and that the said part of said deed [of 1876] shall not interfere with nor in any manner affect the right, title and claim of [certain named] devisees of Stephen Taber, deceased....” Appellant claims that, therefore, the 1878 deed passed no legal title, and as the United States entered into possession of the-property under color of the 1878 deed, its possession from the time of the entry was actual, notorious, exclusive, hostile and under claim of title and ownership.

As it retained such possession continuously for more than twenty years, it acquired a valid estate in fee simple absolute. The chancellor in the case sub judice declared that the 1892 chancery action did not void the 1878 deed and that, therefore, appellant did “not acquire title to the property in question by virtue of adverse possession thereof.” We think he was right. The parties to the 1892 chancery action were certain heirs and devisees of Stephen Taber and the then Trustees under the deed of 1876. Although a part of lot no. 3 had been conveyed by the Trustees to the United States about fourteen years before, the United States was not a party to the action.

The Bill of Complaint listed sixty-four lots by number as designated on the plat made part of the 1876 deed. These lots had not been drawn at the distribution called for in that deed, a id had not been sold or disposed of by the Trustees. Lot no. 3 was not among them. The Bill prayed that the deed of 1876, “so far as the same purports to affect the title to the aforesaid lots at Ocean City, in Worcester County, Maryland, still remaining in the possession of the said Trustees, or their successors, and which were not drawn at the aforesaid distribution, may be vacated and annulled; and that the said lots may be ¹²⁴ sold. . . .” On 18 August 1894 the chancellor decreed that the part of the 1876 deed which prescribed the disposition of lots not drawn at the distribution was “set aside and declared to be held and taken to be utterly null and void to all intents and purposes whatever, and that said part of said deed . . . shall not interfere with nor in any manner affect the right, title and claim of [named devisees of Stephen Taber] in and to all of said lots in said deed . . . which were not drawn at the said distribution referred to in said last named deed [of 1876] — the said lots not drawn as foresaid being described by number as follows: . . . .” Sixty-six lots were so described. 4 Lot no. 3 was not among them.

It was ordered that the said described lots be sold and two Trustees were appointed to sell them. The decree was preceded by an opinion filed 25 May 1894. The chancellor said: “The proceedings show that quite a number of lots remained, after the drawing & are now in the hands of the Trustees unsold. The representatives of the grantors in the original deed of trust, claim the trust is void as to these lots and have filed their bill, to obtain a sale and a division of the proceeds among them.

The grounds upon which they insisted that as to these unsold lots the trust is void are two .... Without assigning the reasons (which are so well stated in the arguments of Counsel), I am of the opinion that both of these grounds are well taken; & that therefore, so far as the lots now remaining unsold are concerned, the trust is void, and the title still remains in the devisees of the grantor and ¹²⁵ their grantees. I will therefore sign a proper decree for the mile of the lots an prayed for in the bill.” (emphasis added) We find it manifest that the 1892 chancery action did not affect the title of that part of lot no. 3 conveyed to the United States. Lot no. 3 had been conveyed to the United States by the Trustees some fourteen years before the equity action was instituted.

The United States was not a party to the action. The action did not seek relief with respect to lot no. 3, it not being among those listed in the Bill of Complaint. The decree afforded no relief with respect to lot no. 3, it not being among those listed therein to be sold. In short, the purpose of the action, as was patent from the pleadings, was to obtain the sale of those lots then in the possession of the Trustees, not those lots which had previously been conveyed.

The intendment and effect of the decree, as is obvious from the opinion of the court and the decree itself, was no more than that. We find, as did the chancellor below, that the decree in the 1892 chancery action in nowise affected the title to property obtained by the United States under the 1878 deed. On appeal appellant urges that the 1876 deed was void without regard to the 1892 chancery action because its trust provisions were uncertain and void and it was without a beneficiary in existence at the time of the creation of the trust. It suggests that its being void does not depend upon a court declaration.

The trouble with this view is that the point does not plainly appear by the record to have been tried and decided by the lower court. Maryland Rule 885. In fact, we do not find in the joint record extract that the point was