Stewart v. Kreuzer

Burke, J., delivered the opinion of the Court. The appeals in this case were taken from two decrees of Circuit Court No. 2 of Baltimore City, passed on the second and nineteen days of December, 1914. The decree of December 2nd ratified and confirmed a contract of sale, hereinafter particularly mentioned, of the property known as No. 214 W. Saratoga Street in Baltimore City. .This contract was entered into between Joseph O. Lautner, as agent for the owners, and Hyland P. Stewart, as purchaser. As the decision on Mr. Stewart’s appeal must rest largely upon the provisions of the contract, in connection with the evidence in the record, the contract will be here inserted: “This Agreement, Made this 26th day of September, nineteen hundred and thirteen, between Joseph C. ³ Lautner, the Agent for the owners, Barbara Kreuzer, life tenant, Thomas Kreuzer, Joseph Kreuzer, Dr. William Gr.

Muench, guardian of Thomas, Ruth, Paul and Joseph Muench; of the first part, and Hyland P. Stewart, of the second part ;• “Witnesseth, That the said party of the first part do hereby bargain and sell unto the said party of the second part, and the latter doth hereby purchase from the former the following described property, situate and Lying in Baltimore City and known as No. 214 W. Saratoga street as now in possession and occupancy of said owners. “At and for the price of ($13,375.00) thirteen thousand three hundred and seventy-five dollars, of which $375.00 have been paid prior to the signing hereof, and the balance is to be paid as follows: “It being understood that this sale is made subject to the ratification of the Circuit Court. It being necessary that a case be filed in said Court between the owners of said property before said property can be sold. Immediately upon ratification of sale the entire balance of the purchase money to become due. “And upon payment as above of the unpaid purchase money, a deed for the property shall be executed at the vendee’s expense by the vendor, which shall convey the property by a good and merchantable title to the vendee. “Taxes and water rent, but no sewerage charges, to be paid or allowed for by the vendor to date of transfer, nineteen hundred and commissions to broker, M. A. Catling, to be paid by purchaser. Present tenant has a lease from year to year expiring October 31st, 1913, at a rental of $840 per annum, one month’s notice sufficient to terminate tenancy, which notice owners will at once give.” The property which is the subject of the contract was in the possession of Christopher Kreuzer at the time of his death.

He took possession of the property under a deed to ⁴ him from Hiram Woods and others, dated April 28, 1874. The possessory lines of the property are shown by the record, and embrace the identical property occupied and enjoyed by Mr. Kreuzer during his life, and comprehend the exact property “in the possession and' occupancy” of the vendors at the date of the contract. Mr. Kreuzer died in July, 1878, and by his last will and testament the property was devised to his wife for life, or as long as she might remain his widow, and upon her death or remarriage to his children and their descendants. His estate has been fully administered and all his debts have been paid.

Mr. Kreuzer left surviving him his widow, Barbara, who-is now over 70 years of age and has never remarried, and who is one of the appellees on this record, and four childdren. Two of these children are now dead. One died intestate and unmarried, and the other left surviving her four children who are now minors. The record shows that all persons in being who have any interest in the property under the will of Christopher Kreuzer, or by reason of intermarriage with any one of his children are parties to this cause.

On the 2nd of October, 1913, the bill in this case was filed under section 228, Article 16, of the Code for the sale of the property. It charged that Christopher Kreuzer and Barbara, his wife, as life tenant, have enjoyed the exclusive, adverse and absolute possession of the land, which is described in the bill and which was contracted to be sold, for a continuous and uninterrupted period of more than 39,years, and that the land has been enclosed for that period. It then set forth facts showing that it would be advantageous to all parties concerned that the property be sold and the proceeds be invested in some safe security so as to inure in like manner to the benefit of those interested therein under the will of Christopher Kreuzer. It then referred to the contract of sale, which we have transcribed, and charged that the sale-was a most advantageous one and that the price for which ⁵ the property was contracted to be sold is the best that could ever be obtained for it.

The specific prayers of the bill are: “1. That a decree may be passed for the sale of said property. “2. That the contract mentioned in this Rill be ratified and confirmed by this Court and a trustee or trustees be appointed to convey the interest of all parties to this cause, in and to the property herein described, to the purchaser, Hyland P. Stewart, upon the payment of the purchase price, viz, $13,375.00, and that the proceeds of said sale so made, be invested under the direction of this Court in some safe and profitable investment or security so as to inure in like manner to the use and benefit of the same parties who would be entitled to said property under the terms, conditions and provisions of the last will and testament of Christopher Kreuzer, deceased.” The defendants’ answer, filed October 7, 1913, admitted the facts alleged in the bill, and consented to the sale as prayed, and on October 8, 1913, the general replication was filed. Nothing further appears to have been done until the 23rd of March, 1914, a period of more than five months, and on that day Mr. Stewart, as purchaser, filed a petition in the case in which it was alleged, first, that one of the objects of the suit was to establish by adversary possession the right and title in the plaintiffs to a strip of land about four feet, one and one-half inches of irregular dimensions on the west side of the property; that this strip of land was in conflict with the lines of the adjoining property on the west owned by Morrow Brothers, who had mortgaged the same in 1905 to the Fidelity Trust Company, and that the mortgage was still outstanding and unreleased, and that neither the Morrow Brothers nor the mortgagee had been made parties to the proceedings; secondly, “that sometime in the year 1906 said Morrow Brothers built a large warehouse on their property and established a party wall on their easternmost line with the property in question in this suit, but said party wall was ⁶ only established to the heighth of the plaintiffs’ several walls adjoining, which are much lower than the walls of the said Morrow Brothers’ new building, but said new wall was carried up much higher upon the same foundation lines as the said party wall of the Morrow Brothers’ property, and about twenty windows have been opened therein overlooking the roofs and property mentioned in these proceedings, which was a trespass upon the rights of the plaintiffs as to the use of the above portion of said will on the land of the plaintiffs; and an ejectment by the plaintiffs against Morrow Brothers might be necessary to settle the rights of the parties in the proper use of said wall above the roofs of the plaintiffs, whereby should the plaintiffs, or any purchaser from them desire to build up this property, it would be necessary to close up said windows, and also to build an entire new wall adjoining the said party wall to carry said upper wall as the plaintiffs in the absence of an agreement to the contrary may have no right to use said party wall above the present roofs of their property, and which would be a great depreciation to the property of the plaintiffs, or of any purchaser from them, or involve them in a law suit.” The petition further charged that the petitioner had had a verbal understanding and arrangement as to the settlement of the disputed lines and as to the use of the party wall above the vendors’ property, but that the arrangement had not been reduced to writing; that neither the mortgagee nor the wives of the Morrow Brothers were parties to this arrangement.

Because of the facts stated it was alleged that the title to the property contracted to be sold was seriously affected, and that the petitioner objected to accepting such title as the vendors were able to give. Upon this petition the Court passed an order making Mr. Stewart a party defendant, and requiring him to answer the bill, and further ordered that the Morrow Brothers and the Fidelity Trust Company, mortgagee, show cause why they ⁷ should not be made parties aud required to answer the bill. The answer of Mr. Stewart, filed April 3, 1914-, admitted the contract set up in the bill and alleged that the vendors were unable to convey a good and merchantable title to the property, and for that reason the sale should not be ratified by the Court. The Morrow Brothers and the Fidelity Trust Company filed answers to the petition in which they showed» cause why they should not be made parties.

They were not made parties to the cause, and no further action with respect to them was taken. These anwsers were filed April 6th, 1914, and the papers were referred to an examiner to take testimony, and the first testimony was taken April 29, 1914. Great delay is shown in