Stewart v. May

Boyd, C. J., delivered the opinion of the Court. This case was previously before us on appeal from an order of the Circuit Court of Baltimore City overruling a demurrer to the Bill of Complaint, and is reported in 111 Md. 162 . We affirmed the order of the lower Court and remanded the case for further proceedings. After it was remanded, the defendants answered and testimony was taken in open Court.

A decree was passed declaring that the deed from Mary DeC. Garrison to Hyland P. Stewart, dated the 10th day of October, 1907, was null and void in so far as it purported or attempted to convey title to the southernmost three feet of the lot described in the deed, and that the title to the said strip of ground three feet wide is in the' plaintiff in fee simple, free and clear of any easement appurtenant to the defendant’s lot, and the mortgage from Stewart to Mrs. Garrison of the same date was likewise declared to be null and void as to those three feet. From that decree this appeal was taken. The object of the bill filed by the appellee was to remove the cloud on his title to the three feet, caused by the deed and mortgage referred to above, and as we held the bill sufficient to entitle him to relief on the facts therein alleged, the real question now to be determined is, whether the answers and testimony present such different facts or con ¹² ditions from those alleged in the bill as preclude the appellee from the relief sought.

In the case of Garrison v. Hill, 79 Md. 75 , which was decided in 1894, Mr. Stewart was counsel for Mrs. Garrison. She had acquired the property on the southeast corner of Liberty and Lexington streets in the City of Baltimore (spoken of in this case as ISTo. 47 Lexington street) as the heir at law of Maria M. J ohnson. The two properties spoken of in this case as Hos. 45 and 47 belonged to Maria E. Weise, who died in 1891, leaving a last will and testament by which she left “all that piece or parcel of ground situate at the southeast comer of Liberty and Lexington streets in the City of Baltimore aforesaid, together with the improvements and appurtenances” to Thomas Hill in trust for Maria M. J ohnson for life, and after her death in trust for William W. J"ohnson, his heirs and assigns, but in case he died without leaving a child or descendant, then the property was to go to Emma Maria C. Johnson. The property became vested in the latter person, who made Maria M. Johnson her sole devisee and Mrs. Garrison inherited it as her only heir at law.

By the next item of her will, Maria E. Weise left all the rest, residue and remainder of her estate “inclusive of my house and lot of ground and premises _on Lexington street adjoining the property described in the aforegoing item of my will and which is known as Ho. (96) ninety-six,” to Thomas Hill in trust for the purposes therein named. The new7 number was 45 Lexington street, Mrs. Garrison contended in the case in 79 Md. that ISTo. 45 ultimately became vested in Emma Maria C. Johnson, and that she inherited it as she had done the other property, but we held that it had not become vested in Emma M. C. Johnson, and hence did not pass upon her wdll to Maria M. Johnson, whose heir Mrs.’ Garrison was. It will he observed that when Maria E. Weise died in 1881 she owned the two properties, and although the will ¹³ does not show how they were divided in reference to the three feet which were included in the alley in question, the conduct of the parties throws much light on the subject.

The suit in ejectment, reported in 79 Md., was instituted in 1893, and Mr. Stewart, one of the present appellants, was one of her attorneys, and signed the declaration. In that declaration the property sued for, which it must be remembered is what is now owned by the appellee, was described as one parcel, as follows: “Beginning for the same on the southernmost side of Lexington street at the distance of nineteen feet and eight inches southeasterly from the southeast corner of Lexington and Liberty streets, and which place of beginning is designed to be in the centre of the division wall between the house next adjoining on the west, and running thence southeasterly, bounding on Lexington street, twenty feet and three inches to the centre of the wall between the house erected on the lot now being described and the house next adjoining on the east, thence southwesterly through the centre of the said wall fifty-two feet, more or less, to the north end wall of the house next adjoining on the south, fhence northwesterly along said wall forty feet to the easternmost side of Liberty street, then northeasterly, bounding on Liberty street, three feet to the southwest comer of the house adjoining on the north, thence southeasterly along the south end wall of said house, eighteen feet six inches until • it intersects a line drawn southwesterly through the centre of the division wall first above mentioned, thence northeasterly through the centre of said wall forty-nine feet, more or less, to the place of beginning.” The declaration thus clearly recognized the alley as a part of what is spoken of as Ho. 45 Lexington street. If Mrs. Garrison, as heir of Maria M. Johnson, had acquired the alley under the devise in the will of Maria E. Weise of the property at the comer of Liberty and Lexington streets, why would she have sued Thomas Hill for the alley as a part of Ho. 45 ? Or, if the alley was hers through that ¹⁴ devise, can it be supposed that when it was determined by tbe decision in 79 Maryland sbe had not inherited the other property (ISTo. 45), her attorney would not at least have endeavored to recover the alley?

But in addition to that, Mrs. Garrison and her husband made a deed to Mr. Stewart on May 7th, 1892, by which they granted an undivided half part or moiety of all their right, title and interest in and to the respective estates of Maria E. Weis, Maria M. Johnson and Emma M. C. Johnson, and then on the 4th day of December, 1894, they made a confirmatory deed to him in which they referred to the former conveyance being made “with no exact description in said deed of the property hereinafter mentioned, and for the purpose of confirming’ said deed and of giving an accurate description of this particular part of the property mentioned in said deed, these presents are executed,” and then conveyed an undivided half interest in and to the property by courses and distances, which limited the lot to 49 feet in depth and called for running along the south end wall of the house on Do. 47, “and on the north side of an alley three feet wide” — thus in terms excluding the alley from the conveyance, and added: “Being the same piece or parcel of ground, the title to which was acquired by Mary DeCharms Garrison as the only heir at law of Maria M. Johnson, who was the sole devisee under the will of Emma M. 0. Johnson * * * the said Emma M. 0. Johnson having acquired the same in fee as devisee under the will of Maria E. Weise.” It was thus admitted by that deed, executed as late as December 4th, 1894 — the same year that the ejectment suit was decided -against Mrs. Garrison — that the property acquired by Emma M. 0. Johnson, as devisee under the will of Maria E. Weise, was forty-nine feet in depth and was on the north side of the alley.

A deed made by Eliza P. Johnson and husband to Thomas Ireland Elliott for an undivided half interest in ISTo. 45 was dated July 23, 1894, and the property conveyed thereby was described precisely as it ¹⁵ was in the declaration. Eliza P. Johnson was the only heir at law of William W. Johnson, and it was decided in 79 Md. that this property descended to his heirs who were living at the death of Emma M. C. Johnson. There can, therefore, he no doubt that as late as 1898 and 1894, the owners of those two lots understood and believed that the strip included in the alley belonged to the property referred to as To. 45, and it is equally certain that Mr. Stewart so thought, as otherwise he would not have included the alley in the ejectment suit and have excluded it in the confirmatory deed to himself, which was made for the special purpose of giving a proper description of the property spoken of as To. 47. It was certainly a very natural and wise division of the properties, for inasmuch as To. 47 was on the corner, and had an entrance from Liberty street, as well as from Lexington street, and as To. 45 was erected between two houses on Lexington street, the alley leading to Liberty street from the rear of this lot was of great value to it, as the properties then stood.

Then when the devisees of Eliza P. J ohnson conveyed the other half of To. 45 to Philip H. Hoffman, on May 8, 1905, the property was described as in the declaration, and the case of Garrison v. Hall, 79 Md. 75 , was referred to in the deed. But when on the 10th day of October, 1907, Mr. and Mrs. Garrison conveyed the other undivided half to Mr. Stewart, in fee simple the description of the lot included the alley, making the lot 52 feet in depth, instead of 49, and calling for the northerly wall of the house adjoining on the south. It cannot be doubted from the testimony in the record that at least as far back as 1887, when Mr. Struven became tenant of To. 45, the strip included in the alley was regarded as part of To. 45 Lexington street. Indeed from the testimony of Samuel Bealmear, a witness produced by the appellants, it may he inferred that such was the case from the time he went into To. 47, which was in 1868.

He extended ¹⁶ the house