Regents of University of Maryland v. Trustees of the Calvary Methodist Episcopal Church

McSherry, C. J., delivered the opinion of the Court. Under a Bill of Complaint filed by the-Trustees of the Calvary Methodist'Plpiscopal Church South against the Regents of the University of Maryland, in the Circuit Court of Baltimore City, the specific performance of a contract for the sale of certain leasehold property was sought. The execution of the contract was admitted and its terms are definite and clear. The purchaser, the University of Maryland, declined to pay the installments of purchase money now due, solely because of a supposed defect in the title of the vendor, the Trustees of the Calvary Church.

The single inquiry in the case concerns the title of the vendor. That title as it now stands on the Land Records of Baltimore City is as follows : (1) A lease dated February second 1880 and duly recorded amongst said Land Records and made by Joseph O. Shipley to Levin Freeman. (2) A deed frohi Charles Shipley and Thomas J. Magruder to the Trustees of the Calvary Methodist Episcopal Church dated July 1st, 1881, in which deed it is recited that the parcel of ground is the same’ that was assigned by ⁶³⁷ Levin Freeman to said Charles Shipley and Thomas- J. Mag-ruder as joint tenants by deed dated February the second, 1880, and left for record among the Land Records of Baltimore City prior to the execution of the deed of July 1st, 1881-(3) A deed from James E. Freeman, administrator of Levin Freeman, to the Trustees of Calvary Church, dated February fifth, 1906, which deed was sanctioned by ch. J06 of the Acts of Assembly of 1906. The deed from Shipley and Magruder to the Trustees of Calvary Church has never received the sanction of the Legislature.

No assignment from Levin Freeman to Charles Shipley and Thomas J. Magruder, as joint tenants, can be found among the Land Records of the City ; and neither any member of the respective families of said Shipley, Magruder and Levin Freeman, nor the present representatives of any of them have any knowledge of any conveyance by Levin Freeman of said leasehold property to Shipley and 'Magruder, or to any one, and no person can be found who has any knowledge that any conveyance of said leasehold property was ever executed except from the declaration in said deed that the property conveyed by it was the same as that conveyed to said Shipley and Magruder, as joint tenants, by Levin Freeman. There is a break in the chain of the record title. There is no conveyance of record from Freeman to Shipley and Mag-ruder, and if the latter acquired no title from Freeman they could assign none by the deed of July, 1881, to the Trustees of Calvary Church. This last named deed though it conveyed no legal title because the grantors as disclosed by the records had none to convey, contained nevertheless, a recital that such a deed had been executed and delivered ; and that recital might be sufficient notice that such a deed did exist to put a purchaser on inquiry as to the rights of Shipley and Mag-ruder, if the limitations in their deed of 1881 are effective and valid.

With that oustanding notice on the land records unqualified by the facts which evidenced an adverse possession, a purchaser could not be expected to admit [that the deed from Freeman’s administrator in 1906, assigned a title to the ⁶³⁸ trustees, which could not be questioned by the legal representatives of Shipley or Magruder. If on the other hand the deed from Shipley and Magruder is void because it conflicts with the organic law of the State, then its limitations are likewise nugatory, and though the grantee named therein entered under it, that grantee—the Trustees of Calvary Church—may have, in virtue of an adverse possession, a marketable title to the property. This brings us to an examination of the deed of July, 1881. By that deed for the consideration therein set forth Shipley and Magruder on July first, 1881, granted and assigned unto the Trustees of the Calvary Church, a religious body corporate, chartered as such under the Act of 1868, ch. 4-Ji, the lot or parcel of ground now involved in this controversy, “subject to the payment of the annual rent” therein named; “to have and to hold the said described lot * * * unto and to the use of the Trustees of the Calvary Methodist Episcopal Church South in the city of Baltimore, its successors and assigns * * *.

It is hereby understood and provided that in case said property should be diverted by any means whatsoever from the uses and purposes of the Methodist Episcopal Church South by said trustees, their successors or assigns, then it shall be deemed forfeited and diverted and shall immediately vest in the said Charles Shipley or his personal representatives and held by him or them free, clear and discharged from all incumbrances whatsoever except the leasehold interest now thereout issuing.” Now, it will be observed that the deed nowhere declares that the land is to be used for a “church meeting-house, or other house of worship, or parsonage, or for a burying ground.” It is quite apparent from the outlines of the description that the quantity of land is less than five acres. No prior or subsequent sanction was given by the General Assembly to this sale or grant. Under these conditions by the express terms of Article 38 of the Declaration of Rights the deed is absolutely void. That Article provides: “That every * * * sale * * * of land to any * * * religious sect, order or denomination, or to or for ⁶³⁹ the support, use or benefit of * * * any religious sect, order or denomination, without the prior or subsequent sanction of the Legislature, shall be void; except always, any sale * * * of land, not exceeding five acres, for a church, meeting-house or other house of worship, or parsonage, or for a burying ground * * * or such sale shall be void.” This provision of the Declaration of Rights was interpreted in Grove et al. v. Trustees, &c., 33 Md. 451 .

It appeared in that case that John Eager Howard in 1787 conveyed a parcel of land—less than two acres—to trustees for the use of a religious society. The deed did not express that the land was “for a church, meeting, or other house of worship,” or, “for a burying ground;” nor did it declare that the land should “be improved, enjoyed, or used only for such purposes; and it was not averred or shown that there had been any assent of the Legislature to the grant. The society remained in possession of the land using it as a burying ground until 1808, when Mr. Howard made another deed conveying the same property to other trustees for the use of the same religious society, and defining more accurately the purposes of the trust. It was held by the Court (first) that the deed of 1787 was in contravention of the 34th Article of the Declaration of Rights then in force and was consequently void—the same Article