White v. Shaffer

Schmucker, J., delivered the opinion of the Court. The appeal in this case is from an order of the Circuit Court for Baltimore County overruling the demurrers of the appellants to an amended bill in equity filed by the appellee as plaintiff below. The question therefore presented for our consideration is whether the amended bill, admitting those of its allegations which are well pleaded to be true, presents a case entitling the plaintiff to relief. ³⁶¹ The substantial allegations of the bill are as follows : Matilda F. Smith being the owner of a valuable tract of land in Baltimore County subdivided it for purposes of sale into a number of smaller lots. Three of these lots, which for convenience will be designated as numbers one, two and three, lie adjacent to each other east of the Avalon Forge road in the relative positions indicated on the following plat.

Mrs. Smith having thus subdivided her land, sold and conveyed lot No.'one to the appellant, A. Robinson White, on August 22nd, 1889, and he granted and conveyed it to his wife, Mary Carter White, on March 4th, 1890. Mrs. White having acquired lot No. one desired also to secure lot No. two and made application to Mrs. Smith for its purchase, but, as a sale of lot No. two in its entirety would have resulted inputting off access from lot No. three northerly to the Avalon Forge road through other lands owned by Mrs. Smith lying north of lots one and two, she refused to sell the latter lot without the reservation of a roadway through it along its western boundary, from her lands on the north to ³⁶² her lot No. three on the south. Mrs. White and her husband then agreed to the reservation out of lot No. two of a roadway as aforesaid and purchased the lot upon those terms and on May 15th, 1891, took a deed therefor from Mrs. Smith in which the road was expressly reserved. In view of the reservation of this road it was agreed between the parties to the deed that Mrs. White should not pay for the ground embraced in the roadbed and in pursuance of said agreement the area of lot No. two as'purchased by her was computed at 3 66-100 acres, that being exclusive of the bed of the road.

In the deed from. Mrs. Smith to Mrs. White of lot No. two, the grant was therefore made “subject however to the use by the said Matilda Frances Smith, her heirs and assigns, of a road 16¿4 feet wide to be forever kept open for the benefit of the said Matilda Frances Smith,.her heirs and assigns, and lying to the east and bounding on the fifth line of the lot now intended to be .conyeyed” said fifth line being the-north ir degrees east 488 feet line, of the description contained in the deed, which was the dividing line between lots one and two ; and such reservation was in exact accord with the intention of both parties to the deed. After the acquisition by Mrs. White of lots one and two she requested of Mrs. Smith, who had not then sold lot No. three for the benefit of which the said road had been reserved, permission to extend the fences on the north and south sides of lot No. two across the ends of the roadway, in order to save Mrs. White the expense of building a line fence along the eastern side of the road, and that Mrs. Smith granted the permission, thus asked of her, with the understanding that the fences across the roadway should be removed whenever she might sell lot No. three or might otherwise have need for the use of the road, and that the appellants extended their fences across the right of way with the understanding aforesaid. Sometime after the execution of the deed to Mrs: White of lot No. two the appellant discovered that it contained some slight errors in the description of the lot and A.- Robinson White acting on behalf of his wife presented to Mrs. Smith ³⁶³ what purported to be a confirmatory deed from her to Mrs. White of lot No. two and asked her to execute it stating that its purpose was to correct some slight errors in the description contained in the original deed but saying nothing whatever in reference to the use of the road as reserved in the original deed.

Mrs. Smith having full confidence in Mr. White, who was and for sometime had been her confidential agent and broker in the sale of portions of her real estate, and being herself ignorant of the significance of the terms used in the description of lands by metes and bounds and trusting in the honor and integrity of Mr. White executed the confirmatory deed without seeking further advice on the subject. It is to be observed, in connection with the allegations of the bill thus far mentioned that an examination of the original and confirmatory deeds of lot No. two, copies of which are filed with the bill as exhibits, discloses the fact that the description of the lot is substantially the same in both instruments, the difference being that in the original deed the fifth line of the description is said to coincide with the ninth line of the deed from Mrs. Smith to Mr. White of lot No. one and in the confirmatory deed the fifth line is said to coincide with the second line of that lot. The confirmatory deed however differs materially from the original one in that it locates the roadway reserved to the grantor not inside of the lot along its fifth line, where it would run north and south and connect lot No. three with the grantor’s other lands, but makes it run east and west along the fourth line of the deed and outside of the lot, where it would serve no intelligible purpose. This reserved road as located along the dividing line between lots one and two, where the bill alleges that it was intended to be placed, would be highly beneficial although perhaps not essential to the use and enjoyment of lot No. three which the grantor retained, but, so far as the record shows, it would have been of no advantage whatever to her where the confirmatory deed located it.

It is further to be observed that although the confirmatory deed changes both the location and direction of the road it does not recite or mention any purpose ³⁶⁴ to make those changes. It simply recites as the reason fot its execution that the “parcel of land” conveyed by the original deed had been “erroneously described” therein and that the new deed is made for the purpose of “ correcting said error” and “ confirming said deed.” . The bill distinctly alleges that the recital in the confirmatory deed of the reservation of the road “ as being of a road to the west and along the fourth or north 78 degrees 40 minutes west 220 feet line of said deed was a mistake and was meant by both parties to said-deed to be to-the east and along the fifth line, of said description.” The bill further alleges that on September 20th, 1894, after the execution of the several deeds to Mrs. White for lots Nos. one and two, Mrs. Smith sold and conveyed with covenant of special warrant}'to the appellee Martha Porter Shaffer lot No. three together with the use and benefit of the 16^ feet roadway reserved or intended to be reserved in the confirmatory deed to Mrs. White. That at the time of such purchase by the -appellee -she had an agreement with her grantor Mrs. Smith that she should have an additional right of way, over Mrs. Smith’s land there situate, from the northern terminus of the way reserved over Mrs. White’s lot No; two out to the Avalon Forge road.

That the appellee, believing the title to lot No. three .and the said rights of way so purchased from Mrs. Smith to be good, paid, part of the' purchase-money therefor and proceeded with the erection of a house upon the lot before- the completion of an examination of its title. After the house had been partially erected the facts already mentioned touching the several deeds to Mrs. White of lot No-, two, were brought to light in the - course of the examination of the title; ■ That those facts were brought to the attention of Mrs. Smith -who, in view of the errors in the said deeds td Mrs. White, was unable to execute to the appellee \ deed with an absolute right to use such road as located in the original deed to Mrs. White of lot No. two, but agreed to execute and subsequently on September 4th, 1894, did execute to the appellee a deed for lot No. three, together with the use of the ³⁶⁵ roadway reserved or intended to be reserved in the confirmatory deed to Mrs. White of lot No. two, whereupon the appellee paid to Mrs. Smith the balance of the purchase-money for lot No. three. That since the receipt of her said deed the appellee has demanded of the appellants and particularly of Mrs. White that they remove their fences erected as aforesaid across said roadway, and has proffered and tendered to them a correct confirmatory deed of lot No. 2, properly executed by Mrs. Smith but that they have refused to accept such deed or to remove their said fences or to permit the appellee to use the said roadway as intended to be reserved. The bill then explains the apparent delay of the appellee in instituting her suit by averring that since the discovery by her of the errors of description in the deed to Mrs. White she has frequently made to her and her husband offers and suggestions looking toward an amicable settlement of the differences between them without getting a decided or final rejection of those offers until shortly before filing her bill; and that she had delayed filing the