Welsh v. Welsh

Barnes, J., delivered the opinion of the Court. This appeal principally involves the question of whether or not the appellees, Harry E. Welsh (Harry) and Elizabeth Welsh, his wife, were bona fide possessors of a tract of land owned by Charles C. Welsh (Charles), one of the appellants, when the appellees erected a substantial portion of a gasoline filling station thereon, so that the equitable doctrine of melioration would apply. One aspect of the present dispute involving an action of ejectment by Charles against Harry and wife in regard to the location of the lines of the adjoining properties was previously before us in Welsh v. Welsh, 248 Md. 619 , 237 A. 2d 739 (1968). In the ejectment case, the jury had found that the improvements erected by Harry E. Welsh and wife were upon the land owned by Charles C. Welsh and we held that the judgment entered in the ejectment action, considered in light of the charge ⁶⁸³ to the jury, to which no exception was taken, was sufficiently definite and established the controlling boundary line as that set forth in the 1957 plat prepared by the surveyor, J. Maxwell Mathias.

After the return of the mandate from the appeal in the ejectment case, Charles directed the Clerk to issue a Writ of Habere Facias Possessionem to the Sheriff of Allegany County (the other appellant) to place Charles in possession of all the land and improvements located east of the west boundary line established by the ejectment judgment as appearing on the Mathias plat. Harry and his wife then filed the bill of complaint involved in the present appeal on June 18, 1968 praying that (1) Charles’ application for a Writ of Habere Facias Possessionem be denied, (2) the lower court appoint a surveyor to determine the true line between the properties of Charles and Harry and his wife, (3) Charles and the Sheriff be enjoined, pending the proceedings, from levying or otherwise executing under the ejectment judgment, (4) the lower court determine the value of the land, if any, belonging to Charles and occupied by Harry and his wife, (5) upon payment by Harry and his wife to Charles of the value of the land so determined, Charles be directed to execute a deed conveying the land to Harry and wife, (6) if Charles refuses to execute the deed, the lower court appoint a trustee to do this and distribute the proceeds and (7) for further relief. Prior to January 1, 1948, Harry negotiated with Paul B. Gannon, unmarried, who lived in Kentucky at the time, for the purchase of Lots 18, 19 and 20 of Gannon’s Addition, Westernport, Maryland. On January 1, 1948, Gannon, for a consideration of $500.00, conveyed all of his right, title and interest in these lots to Harry and wife by a quitclaim deed, duly recorded on January 19, 1948.

There were no covenants of title, of warranty or of any other kind in the quitclaim deed. In the ejectment case, the record of which was received into evidence in the present equity suit, counsel for Gannon testified that Harry came to his office and he read the deed to him and ⁶⁸⁴ told him the reason for the use of that type of deed. He stated: “A. What I told Mr. Welsh was that I knew there was a dispute over the lines. I couldn’t tell him anything about the title with reference to location of the property.

He didn’t ask me, of course. He didn’t ask me or employ me to search the title to the property. I wasn’t representing him. I didn’t search the title.

Although if I had known or thought— “(Mr. Ryan) Objection to what he would have done if he had known or thought. We object to what he thought or what he knew. “ (The Court) The objection will be sustained. “A. So that was the reason I, in order to help my clients out of litigation, the Gannons— “(Mr. Ryan) We object. We object to what he said about his clients keeping out of litigation. “(The Court) He is explaining merely there was a quitclaim deed. “Q. This was fully explained to Mr. Harry Welsh? “A. Certainly was.” Harry testified in response to a question as to whether or not there were any questions raised “regarding the lines of this property?” : “A. My brother didn’t own it at the time. “Q. Did any one else raise any questions? “A. He had Mrs. Mason to sort of reject (sic) me building there.” Harry and wife then had Lots 18, 19 and 20 surveyed by Wallace Brown on March 3, 1948. A rather crude plat on a legal size piece of white paper, done in pencil, but signed by Mr. Brown, who affixed his seal as surveyor, was prepared, entitled “Map Showing Compromise Between the Properties of Harry Welsh and J. Mason, West ⁶⁸⁵ ernport, Maryland.” This plat was signed by Harry and Mrs. Mason on March 17, 1948.

Apparently there was no formal agreement indicating the nature of the settlement or what consideration, if any, there was for such an agreement. From the plat, it would appear that the area in question was a triangular parcel on the northeast portion of Lots 19 and 20, with a base of the triangle of 28.93 feet and bounded by the N. 49° 45' E. line forming the southeast boundary line of Lot 20 and running to a point at the northeasterly boundary line of Lots 19 and 20, i.e., N. 25° 15' W. This triangle is hatched in with a red pencil and presumably is the portion of the land in dispute between Mrs. Mason and Harry, although nothing on the plat or in the record indicates which one of the two signers was to receive or own the hatched triangle. There is no indication on this plat of the dividing line ultimately established by the Mathias Plat of 1957 which the jury accepted as the true division line. There is no projection of any buildings or other improvements on the plat.

In June 1949, Philip Hartig, a registered surveyor, made a survey of Lots 18, 19 and 20. There are no courses or distances indicated on this plat. Lots 18, 19 and 20 are marked “Quitclaimed from ‘Brickyard’ ”. The southeasterly line of Lot 20 appears to be a projection of the first line of “Good Luck” with a beginning point for that line on the southeasterly line of Lot 20.

No structures are indicated anywhere on Lots 18,19 and 20. In November 1950 Harry constructed the original service station and building, 28 feet wide and 40 feet long, located principally on what is shown on the prior surveys as Lot 19, but with a small part of the structure extending on to Lot 20. In July 1953, Mr. Hartig made a second survey and plat apparently for James Welsh, Harry’s brother and the predecessor in title of Charles. This second survey plat shows the division line running through the southeast portion of the service station so that approximately one-fourth of it was located on the adjoining land owned by ⁶⁸⁶ James Welsh.

Inasmuch as the second Hartig plat of July 1953 was introduced into evidence by Harry and Ms wife in the prior ejectment case, it is apparent that they had knowledge of this second survey and had a copy of the plat. Thereafter on October 26, 1954, James Welsh began an action at law in ejectment (Law No. 529, Circuit Court for Allegany County) disputing the boundary line. On December 6, 1955, Harry and his wife obtained a confirmatory deed from Paul B. Gannon which was duly recorded on December 9, 1955. This confirmatory deed describes as a First Parcel Lots 18, 19 and 20 by metes and bounds; as a Second Parcel refers to land contiguous to and on the south side of Lots 18, 19 and 20 and the edge of the concrete pavement of the State Highway between Westernport and McCoole, being the property conveyed to Harry and his wife by Gannon by a deed dated September 15, 1948 and duly recorded, reference being made to that deed for a more specific description; as a Third Parcel, the land contiguous to the south side of Lot 17 and being between that lot and the concrete pavement of the State Highway between Westernport and McCoole, being the property conveyed to Harry and his wife by Gannon by a deed dated February 1, 1950 and duly recorded, reference being made to that deed for a more specific description.

This confirmatory deed conveyed all those parcels to Harry and his wife as tenants by the entireties, and contains a covenant of general warranty, a covenant of seisin, a covenant against encumbrances and a covenant for further assurances. In November 1957, J. Maxwell Mathias, a registered surveyor, made his survey which showed that the dividing line between the property of James Welsh and that of Harry and his wife ran through the service station so that approximately three-fourths of it was on the land of James. This was the plat found by the jury to be the correct plat in the ejectment action involved in Welsh v. Welsh, supra, 248 Md. at 622 , 237 A. 2d at 741 . ⁶⁸⁷ On April 6, 1959 the original ejectment action filed by-James Welsh on October 26, 1954 was placed on the stet docket and on June 10, 1960 a Motion Ne Recipiatur was filed in that case by Harry and his wife, after which no further action was taken in those proceedings. In 1962, Harry constructed an addition on the east side of the original structure, consisting of an additional 14 feet, to be used as a service area and an apartment for rental purposes.

James Welsh and wife conveyed their property adjoining the property of Harry and his wife to Charles by a deed which was dated April 1, 1965 and was duly recorded. Two parcels were conveyed, one, the half acre, more or less, described by metes and bounds and formerly owned by Jerentha Mason; the other, the parcel known as “Good Luck” also described by metes and bounds, which contained 20 acres, more or less, also once owned by Mrs. Mason. Charles, on May 25, 1965, filed his declaration in the ejectment action involved in Welsh v. Welsh, supra, which, as we have indicated, was concluded in his favor after we affirmed the judgment of the lower court in that case on February 7,1968. On May 28, 1968, after the mandate in the ejectment case had been returned to the lower court, Charles directed the Clerk of the Circuit Court to issue to the Sheriff the Writ of Habere Facias Possessionem, as we have indicated, and the present suit in equity was subsequently filed by Harry and his wife.

At the hearing on the merits the above mentioned facts were developed, as well as other facts we shall mention later. Wallace H. Wilson, a real estate appraiser, appointed by the trial court (Getty, J.) gave his opinion that the improvements erected by Harry and his wife upon the land owned by Charles had an approximate value of $21,000. There was testimony offered by Charles that the value was approximately $6,000. On October 10, 1968, the trial court filed a written opinion indicating that in his opinion Harry and his wife ⁶⁸⁸ were bona fide possessors of the real estate of Charles, on which they had erected the substantial part of the service station and building and that the equitable doctrine of melioration should apply.

On that date also an order was signed by the lower court providing that Charles, within 10 days, should notify Harry and his wife by registered letter of his option either (1) to accept payment for the lot at its face value without improvements, fixed by the court at $500 or (2) pay to Harry and his wife $20,000 representing additional value conferred upon the lot by the improvements and, depending upon which option Charles exercised, the proper party convey to the other upon payment, the property in question. From this order the present appeal was timely taken. The appellant, Charles, contends before us that the trial court erred in deciding that— (1) Harry and his wife were bona fide possessors of the land on which they originally constructed the garage and on which they subsequently constructed additions to the garage and apartments; (2) The improvements on the real estate added an additional value of $20,000 to the real estate in consideration of all the evidence and circumstances in the case. We have concluded that the lower court was in error in holding that Harry and his wife were bona fide possessors entitling them to the application of the equitable doctrine of melioration, and we shall reverse the order of October 10, 1968.

We find it unnecessary to consider or decide the second ground of error raised by the appellant, Charles. • Maryland follows the general rule in the United States in regard , to the equitable doctrine of melioration or compensation for improvements made by a bona fide possessor of land. The general rule is well stated by Professor Tiffany in 2 Tiffany, Real Property §625, Compensation for Improvements, at 621 (3d Ed. 1939) as follows: “Since the rule that erections or additions made by-one who has no rights to land are fix ⁶⁸⁹ tures, and therefore not removable by him, even though he made them in the belief that he was the owner of the land, is calculated to cause hardships to an innocent occupant of another’s land, by giving the benefit of his labor and expenditures to the landowner, the courts of this country, without either imputing fraud or requiring proof of it, hold it inequitable to allow one to be enriched under such circumstances by the labor and expenditures of another who acted in good faith and in ignorance of any adverse claim or title. Applying this doctrine of ‘unjust enrichment,’ a court of equity will, on the principle that he who seeks equity must do equity, refuse its assistance to the rightful owner of land as against an occupant thereof unless he makes compensation for permanent and beneficial improvements, made by the latter without notice of the defect in his title.” It will be observed that the