Wagner v. James A. Bealmear & Son Co.

Stockbridge, J., delivered the opinion of the Court. William: Wagner filed the bill of complaint in this case against the James A. Bealmear & Son Ch., a body corporate, for the specific performance of a contract of sale of eleven houses on the Philadelphia road in fee, and one house on S'treeper street, leasehold, as enumerated in the receipt given by Mr. Wagner to the defendant on the 25th of August, 1919. To the bill so filed the defendant demurred, and the ground of the demurrer seams to have been the claim on the part of the defendant company that Mr. Wagner could not give a merchantable title to the property. There is apparently no disagreement between the solicitors of the respective parties upon any question of fact, save possibly one, and that is a mixed question of law and fact.

Etom the undisputed statements of counsel there was passed, in June, 1914, an ordinance of the Mayor and City ⁶⁹² Council of Baltimore for the opening of Potomac street, from Eayette street to Philadelphia avenue, and upon a portion of the bed of that street the plaintiff had erected a number’ of dwellings, five of which out of the total number of eleven were within the line of the proposed street, as was also the leasehold lot of ground before mentioned. This condemnation proceeding was advanced in the regular routine of such proceedings up‘ to the point of the final award made by the Commissioners for Opening Streets, and in the case of the awards for two lots an appeal was taken from the award to the Baltimore City Court, which terminated in 1915. Eothing was thereafter done by the Mayor and Oity Council of Baltimore toward the consummation of the proceedings, but they have been allowed to lie dormant until the present time. In the view of the appellee the condemnation begun constitutes such an encumbrance upon the title to the lots in question as to render 'the title to these houses unmerchantable.

In the case of Gill v. Wells, 59 Md. 492 , while that was not a condemnation case, but came up' to this Court upon a bill for specific performance of a contract for sale, it was held that the vendee of a piece of property is not bound to take 'an estate fettered by encumbrances by which he may be subjected to litigation to procure a title; that the vendee has a right to demand and to have a title which shall enable him, not only to hold his land but to hold it in peace, and if he wishes to sell it to be reasonably sure that no flaw or doubt will come up to disturb its marketable value. The rule so laid down has been since affirmed in the Sharp Street Station v. Rother, 83 Md. 289 , and Abell Company v. Fire mens Insur. Co., 93 Md. 596 . There are numerous decisions in this State to the effect that under our constitution no title to the property condemned passes to the condemning parties until there has been the payment or a tender of the damages fixed for the ⁶⁹³ taking of the property, and as in this caso there is no pretense that the property in question has ever been paid for or tender made of tbe value fixed, there can of course be no question that no title whatever has passed to the Mayor and City Council.

Can the Mayor and City Council now at the close of 1919 proceed to open Potomac street along the lines set forth in the return of the Commissioners for Opening Streets, or has it by its inaction lost that right, so that if the city desires to open today it should be compelled to resort to an entirely new proceeding ? In Norris v. Baltimore, 44 Md. 598, Justice Miller, speaking for this Court, says: “The mere assessment of damages by commissioners or a jury is not a taking. It is a step¡ preliminary to the taking, not the taking itself. * * * It is obviously unjust for the city to hold a condemnation over property for years, neither paying the assessment nor abandoning tbe improvement. The effect of so doing is in