Nimro v. Holden

RODOWSKY, J. Maryland Code (1974, 2012 Repl.Vol.), § 8-103(a) of the Estates and Trusts Article (ET) is a nonclaim statute. Imbesi v. Carpenter Realty, 357 Md. 375, 377 , 744 A.2d 549, 550 (2000). In relevant part it provides: “§ 8-103. Limitation on presentment of claims. “(a) In general. — Except as otherwise expressly provided by statute with respect to claims of the United States and the State, all claims against an estate of a decedent, whether due or to become due, absolute or contingent, liquidated or unliquidated, founded on contract, tort, or other legal basis, are forever barred against the estate, the personal representative, and the heirs and legatees, unless presented within the earlier of the following dates: “(1) 6 months after the date of the decedent’s death[.]” The principal question here is: When record title to realty devolves upon a personal representative after the twenty-year period for the transfer of title by adverse possession, or for the acquisition of a prescriptive easement, are such interests ¹⁸ extinguished under § 8-103(a) by the failure of the alleged adverse possessor/user to file a claim in the estate proceedings asserting ownership of those interests?

In an action to quiet title, the Circuit Court for Anne Arundel County held, on a motion titled, “to Dismiss,” that that was the effect of § 8-103(a) because the assertion of rights allegedly acquired by adverse possession or prescription was a “claim” within the meaning of § 8-103(a). For the reasons hereinafter set forth, we disagree and shall reverse. At issue are the rights in lots 84 through 87 and 1 through 3 as shown on the plat of Fairview-Section One, dated January 1933, recorded among the land records of Anne Arundel County in Plat Book FSR No. 3, folio No. 76. When the instant action was initiated in September 2013, the appellee, Jane W. Holden, as personal representative of the Estate of Dan D. Westland, held record title to the disputed property.

The appellant, Guy A. Nimro, owns lots 80-83. Attached to Nimro’s complaint are copies of conveyances and of the plat of Section One of Fairview. The east side of Fairview faces Herring Bay and lots 1 through 3 abut the water. They lie on the east side of a north-south street, Shore Drive.

Between Shore Drive and the water, to the north of lots 1-3, is a way from that street to the water. Lots 87 through 80 are in a block of lots extending from the west side of Shore Drive in a westerly direction. That block is bounded on its north side by South Drive, an east-west street. Lot 87 is at the corner of Shore Drive and South Drive.

Lot 84, the western end of the disputed property, abuts the eastern side of lot 83, the east end of the Nimro property. Thus, the disputed property lies between the Nimro property and the water. Other exhibits to the complaint indicate that the disputed property is unimproved. The record consists of the complaint and its attached exhibits, and both an answer and a motion to dismiss.

To the latter is attached a copy of the docket entries from the Orphans’ Court for Anne Arundel County in the Westland estate. The purpose of producing the docket entries was to get before the ¹⁹ court the negative fact that Nimro had not filed a claim against the Westland estate. That exhibit had the effect of converting appellee’s motion to dismiss into a motion for summary judgment. Maryland Rule 2-322(c).

Consequently, we shall restrict our review to the ground of decision relied upon by the circuit court. The Nimro exhibits show that appellant acquired lots 80-83 by a deed dated June 29, 1990, from Mildred Bloom, who acquired title in her own name in February 1987. Mildred’s title was acquired after the death of the survivor of Loren A. and Madge T. Bloom, who had acquired lots 81-83 in 1946 and lot 80 in 1952. The deed to Nimro does not expressly convey any rights of the grantor in the disputed property.

Dan Westland had acquired the disputed property as a gift, by deed from his mother in 1989. She had acquired the disputed property in 1978. The complaint alleged in Count I that “[f]or more than twenty (20) years Plaintiff and his predecessors in title have been in open, exclusive, hostile, adverse and actual possession under a claim of right” to the disputed property. Count II alleged that “since 1952, the Plaintiff ... and his predecessors in title have used the property for more than twenty years ... as an extension of Plaintiffs front yard, unobstructed sight line to Herring Bay and ingress and egress to the beach are [sic ] on Herring Bay.” There is no allegation that the Blooms or Nimro enclosed or built on the disputed land.

The complaint alleged, and the estate exhibit shows, that Dan West-land died February 13, 2006. The circuit court ruled: “Based upon the Plaintiffs claim, claiming adverse possession, he’s claiming that he and his predecessors-in-title have either adverse possession or the prescriptive easement, as existed for 20 years, and it also relates to the predecessors. “Clearly in 2006, that claim existed that it is a legal basis that no claim was made against the property; no claim was ²⁰ made against the estate. On that basis, the Court will grant the Motion to dismiss.” I A Preliminary Issue This is a dispute about the date on which the applicable twenty year period is alleged to have begun. Count II (adverse user) clearly avers 1952 while Count I (adverse possession) is silent on the start date. “It is the Appellant’s position that he has asserted dominion over the properly [sic ] in question since 1990 when he purchased the property and that his predecessor in title had done so.” Appellant’s Brief at 4.

If the start date is in 1990, the twenty year period would not run until sometime in 2010, four years after the decedent’s death. With that start date, § 8-103 literally would not apply. The circuit court, however, construed the ambiguity in the complaint adversely to the pleader. Read Drug Chemical Co. v. Colwill Construction Co., 250 Md. 406 , 243 A.2d 548 (1968).

It considered the twenty year period to have run by 2006. That is the way that the issue comes to us. Accordingly, we are to consider that the twenty year period began during the Blooms’ ownership of the present Nimro lots. The circuit court assumed that any rights held by the Blooms in the disputed property passed to Nimro through the 1990 conveyance of the present Nimro property.

The appellee’s argument does not question on legal grounds that step in Nimro’s assertion of title to, or an easement over, the disputed property The Parties’ Contentions Nimro submits that he “is not making a claim against the estate.” Appellant’s Reply Brief and Appendix at 4. Rather than seeking an asset of the Westland estate, “he is seeking a ruling of good title to his property.” Id. The estate contends that Nimro is seeking title to an asset of the estate and thus is asserting a claim against it which should have been filed in the estate proceedings, per § 8- ²¹ 103(a), within six months after Westland’s death. The claim does not lie beyond the intendment of § 8-103(a) because the nonclaim statute applies to “all ” claims whether “founded on contract, tort, or other legal basis.” (Emphasis added).

Appellee also emphasizes that the policy of § 8-103 is to expedite the administration of estates, a policy that is satisfied by requiring one whose claim rests on adverse possession to come forward within six months, or be barred. The bill to quiet title, the estate asserts, is subject to the nonclaim statute because this Court held the statute to apply to an action in equity, i.e., specific performance, in Lowery v. Hairston, 73 Md.App. 189 , 533 A.2d 922 (1987). Thus, appellant’s position is that adverse possession and prescription created Nimro’s interests in the disputed property by operation of law when the twenty years had run. Appellee’s ultimate position necessarily is that no interest in realty that arose by adverse possession or prescription can survive, if the title to realty devolves into a testamentary estate, unless the holder of the adverse interest timely files a claim per ET § 8-103(a).

Phrasing the question to be whether filing an action to quiet title is asserting a claim against the estate does not answer the question whether the judicial declaration of status of title itself creates the title as of the declaration or whether the declaration, if favorable to the party asserting adverse possession, is the judicial recognition of a legal consequence of a state of facts that took effect at an earlier date. Our first inquiry is whether Nimro’s view of the substantive law of adverse possession is correct. The Nature of Adverse Possession Adverse possession has been described as “a method of transition of ownership through nonassertion of title thereto, coupled with unauthorized possession thereof by one lacking good title[.]” 4 Tiffany Real Property § 1132 (3d ed.1939). This Court has given the following explanation: ²² “ ‘Adverse possession is a method whereby a person who was not the owner of property obtains a valid title to that property by the passage of time.’ Md. Civ.

Pattern Jury Instr. 2:1 (MPJI-Civ.). ‘A number of policy justifications for the doctrine of adverse possession have been advanced.’ Herbert T. Tiffany & Basil Jones, Tiffany Real Property, Neighbor § 6:2 (1975, through Sept. 2006).... Most commonly, ‘courts justify the existence and application of adverse possession’ for one or more of the following reasons: “ ‘First, there is a societal interest in “quieting” title to property by cutting off old claims. Second, there is a desire to punish true owners of land who neglect to assert their proprietary rights. Third, there is a need to protect the reliance interests of either the adverse possessor or others dealing with the adverse possessor that are justifiably based on the status quo.

Last an efficiency rationale, asserting a goal of promoting land development, seeks to reward those who will use land and cause it to be productive’ “Id” Hillsmere Shores Improvement Ass’n v. Singleton, 182 Md. App. 667, 691 , 959 A.2d 130, 140 (2008) (quoting Yourik v. Mallonee, 174 Md.App. 415, 422 , 921 A.2d 869, 873-74 (2007)). The Court of Appeals has recognized that title through adverse possession is acquired on the expiration of the twentieth year, a transfer that occurs by operation of law and without any need for a judicial determination. Trustees of Broadfording Church of the Brethren v. Western Md. Ry. Co., 262 Md. 84 , 277 A.2d 276 (1971).

The facts of that case, for summary judgment purposes, were: 1912 A 100 ft. right of way, containing 8.47 acres, was granted to the railroad over the subject property. 1930 One Dorsey acquired an undivided half interest in the subject property. 1936-37 After railroad bridge over the Potomac washed out, spur line tracks were removed. Dorsey enclosed the right of way and began use. The railroad sued in ejectment. Case languished on docket. 1960 ²³ 1963 Dorsey sells to Beavers.

Conveyance excludes the right of way as do subsequent conveyances. 1967 Dorsey dies. His will devises residue to appellant church. Noting that “the critical date is 1937, when Dorsey is alleged to have taken possession of the right of way,” the Court held: “If Dorsey’s pleas can be substantiated by competent testimony, he acquired title to the disputed right of away in 1957 by adverse possession, and if he did, from 1957 on, he held a title which he could have alienated by conveyance or devise. The circumstance that he specifically excluded the right of way in the deed to Beavers left title in him, Fleischmann v. Hearn, ... 141 Md. [463,] 468, 118 A. 847 [, 849] (1922)[.]” Id. at 87-88, 277 A.2d at 278 (footnote omitted).

The Court also quoted approvingly from 3 American Law of Property, § 15.14, at 828 (1952), as follows: “ ‘It has even been stated that after the statute has fully run the title should be treated as having vested at the date of inception of the adverse possession. Whatever the date, having once vested it acquires the attributes of other vested titles in that it cannot be divested by parol abandonment, by the re-entry of the former owner, or by a failure to continue to possession.’ ” Id. at 88, 277 A.2d at 278 . To the same effect is Safe Deposit & Trust Co. v. Marburg, 110 Md. 410 , 72 A. 839 (1909), which sustained the constitutionality of Chapter 502 of the Acts of 1884 providing that, whenever any demand for payment, or payment of, a ground rent had not been made for more than twenty consecutive years, the rent was conclusively presumed to have been extinguished, with the result that the reversionary interest was terminated. Describing this statute as addressing proof that would satisfy adverse possession, the Court said: “[T]here can be no reason why such adverse holding of the tenant should not be given the same effect as is given to other adverse possessions.

The effect of adverse possession is thus stated in 1 Am. & Eng. Ency. of Law, 883: ‘By ²⁴ adverse possession of land for the statutory period of limitation the adverse holder acquires a title in fee simple, which is as perfect as a title by deed. Its legal effect is, not only to bar the remedy of the owner of the paper title, but to divest his estate, and vest it in the party holding adversely for the required period of time, so that he may maintain an action of ejectment for the recovery of the land even as against the holder of such paper title who has ousted him.’ That doctrine was early recognized in this state. Armstrong v. Risteau, 5 Md. 256 , 59 Am.

Dec. 115 [ (1853) ]. See also Cooley’s Const. Lim. (365); 1 Cyc. 1135.” Obtaining an easement by prescription, as alleged in Count II of Nimro’s complaint to quiet title, operates the same way.

This is forcefully illustrated by the description of a side effect of the creation of an easement at the expiration of the twentieth year that is found in Restatement (First) of Property § 465 (1944), Comment a. “a. Effect of running of prescriptive period on liability for past use. An adverse use ordinarily constitutes an invasion of the rights of the owner of the land used. Where it does, a cause of action arises against the user at the moment the use is made as, for example, for a trespass to the land, or for damages caused by taking some substance from the land.

On this cause of action the applicable statute may prescribe a period less than the prescriptive period. Thus the remedy for some acts of adverse use may have been barred before the adverse use has continued for the prescriptive period and, therefore, before an easement has been created by prescription. Conversely, even though the period of limitation for the recovery of damages is less than the prescriptive period, it must always be true that the statute has not run on all of such causes of action upon the completion of the prescriptive period. Until the last moment of the prescriptive period, the acts of adverse use are generating new causes of action.

For those immediately preceding the running of the prescriptive period, the statutory period cannot have run. Nevertheless, upon the running of the prescriptive period and the consequent creation by prescription of an easement, all acts of adverse use ²⁵ contributing to the creation by prescription of such easement become privileged retroactively. Even though