Wickes v. Wickes

Jones, J., delivered the opinion of the Court. In this case the controversy has respect to real estate which was sold under a decree of the Circuit Court for Kent County. The record brings up four appeals. Three of these are from the action of the Court in regard to certain questions which, in the course of proceedings had pending the ratification of the sale, were submitted to it for adjudication as being within the provisions of sec. 183 of Art. 16 of the Code; and the fourth is from the order of the Court overruling exceptions filed to the ratification of the sale by Willie Wickes, appellant in No. 10 of the Appeals, dismissing a petition in'which she asked leave to amend her answer to the bill of complaint and for other relief; and finally ratifying the sale as reported.

The controversy in the case arose from a claim of title to the property solid, set up by the said appellant in No. 10 of the Appeals, after sale made and pending ratification of the same. This claim is that the property sold is the subject of an estate tail general and that said estate is now vested in the said Willie Wickes by inheritance in regular course of descent from the first tenant in tail, and rests on the following facts. Samuel Wickes of Kent County who died in the year 1732 was seized in fee-simple of the property in controversy, and by his will of date September the 5th, 1729, devised it as follows: “Item, I give, devise and bequeath unto my son Samuel Wickes all that tract or parcel of land and plantation with all the other appurtenances thereto belonging, containing by ³¹⁷ estimation 370 acres more or less, called or commonly known by the name of ‘Wickliffe’ it being the land and plantation whereon I now dwell in the Eastern Neck Island, in the county of Kent, to him and the heirs of his body lawfully begotten forever, and if in case it should please God my son Samuel shall happen to die without such lawful heirs as aforesaid, the aforesaid lands to descend to the next heir of blood according to law forever.” Samuel Wickes, son of the above-named testator, and devisee in the foregoing devise held the land in question until he died in 1767 and by his will devised it as follows: “2nd. I give and bequeath unto my son Samuel Wickes, my dwelling plantation and all the land adjoining thereto to him and the heirs of his body lawfully begotten forever, and in case my son Samuel should die without such issue then to the next surviving heir and heirs of their body lawfully begotten forever.” Samuel Wickes named aS devisee in the last-mentioned devise was the oldest son and the common law heir of the Samuel who was the devisee in the first-mentioned devise.

He entered upon and was possessed of the land mentioned during his life; and is supposed to have survived until after the passage of the Act to Direct Descents of 1786, ch. 45, and until after that Act went into effect, by its terms, as to estates tail, on the first of January, 1788. At his death his oldest son, William Wickes, entered upon and held the said land until his death which occurred sometime before the year 1852. William Wickes left an only son, James P. Wickes, and two daughters. James P. Wickes entered upon and held the land during his life but apparently supposing that it was a fee-simple inheritance descending to all of his father’s children in equal shares he took deeds from his sisters—each deed expressing that it conveyed an “undivided third part” of the land in question as “being the same lands which descended from the late William Wickes” to his “children and heirs at law.” Both deeds were made for a money consideration which in one was “three thousand dollars” and in the other "two thousand and five hundred dollars.” ³¹⁸ James P. Wickes died intestate in the year 1869 leaving a widow and eight children.

Of these children William H. Wickes was the oldest son, who with the widow, his mother, and the other children, except a married daughter, continued to reside upon and occupy the property in question. The widow and children of James P. Wickes seem to have regarded the property as he had, as descending as a fee-simple inheritance ; and accordingly there was an arrangement among them by which William H. Wickes became tenant of the farm paying rent therefor to his mother and brothers and sisters; and it was testified that he continued “to farm the farm as tenant until his death which took place on May 15th, 1871.” William H. Wickes left an only child who is the Willie Wickes heretofore mentioned as the appellant in Appeal No. 10 in this record ; and who was born on the 2nd day of May, 1871, thirteen days prior to the death of her father, at Chestertown, Kent County, where her parents then were. Such is the source of title and such the course of descent through which the appellant, Willie Wickes, claims to be vested with an estate tail general in the property in controversy. The Act of 1782, chapter 23 (Code, Art. 21, sec. 24), provided that “any person seized of an estate tail in possession, or remainder, in any lands * * * may grant, sell and convey the same in the same manner and by the same form of conveyance as if he were seized of an estate in fee-simple” and that such conveyance should be good "against all persons whom the grantor might debar by any mode of common recovery or by any ways or means whatsoever.” The Act of 1786, chapter 45, to direct descents in Maryland (Code, Art. 46) provided that if any person seized of lands in this State as of a fee-tail general should die intestate thereof such lands should “descend in fee-simple” but provided that the Act should not be construed “to alter or in any manner change the course of descent as heretofore used and established, so as to affect the case of any entail or limitation in tail whatever, ³¹⁹ made, created and in being before the first day of January, 1788, but the same shall, during the continuance of the estate in tail or limitation in tail, and until the same may be legally destroyed or barred, descend according to the course of descent heretofore used and established.” According to the claim here set up of title in tail to the property in question the estate tail was in existence prior to January 1st, 1788 and was therefore within the exception provided in the Act of 1786.

It is not pretended that any person seized of said estate attempted to grant, sell or convey the same by any form of conveyance under the provisions of the Act of 1782, chapter 23; or to bar it in any mode recognized as effective for that purpose as the law stood prior to that Act. Now if we assume upon the facts recited that the appellant, Willie Wickes, became, as she claims she did, upon the death of her father, entitled as tenant in tail to the land in controversy and to possess herself thereof as of an estate tail general, the record presents the further inquiry whether from the disclosures thereof such title has since become barred and defeated. As appropriate to this inquiry the further facts disclosed by the record are that on the 15th of October, 1872, a bill was filed by the adult children of James P. Wickes against those of his children then minors and the appellant, Willie Wickes, as defendants, to procure a decree for a sale of the property here in controversy and of which he was possessed as aforesaid during his life, for the purpose of partition; and that the proceeds of sale might be distributed among the parties to the cause; the proceedings being the same as if the said James P. Wickes had been seized of the property in fee and the same had descended to his children in fee-simple under the Act to direct descents. A decree was passed after the usual proceedings had by the Circuit Court for Kent County for a sale of the property and appointing a trustee to make sale.

The decree was dated the 7th of February, 1873, and the trustee reported the property as having been sold in March, 1873, to Charlotte A. Wickes, the widow of James P. Wickes and the ³²⁰ sale was finally ratified and confirmed. On the 13th day of November, 1877, a deed from the trustee to Charlotte A. Wickes was recorded in Kent County which referred to the property sold to her as being the same property of which the late James P. Wickes died seized and possessed a portion of which he inherited from his father and the remainder he acquired under two conveyances, &c., these conveyances being those made to him by his sisters as hereinbefore set out. Under this sale and deed Charlotte A. Wickes held and possessed the property continuously until her death which occurred on the 3rd of February, 1900. It was testified that “from date of sale March, 1873, until her death she lived on the farm and had absolute possession of it, claiming under the deed the property to be her own.” During her lifetime she executed three several mortgages on the property.

For the year 1900 she had rented the farm to one Kelly who, at the time of her death, was farming it as her tenant and continued his tenancy to the end of the year. For the years 1901 and 1902 the farm was rented to one Newcomb by Mr. Barroll acting as attorney for all of the heirs of Charlotte A. Wickes; four of whom were living on the farm with her at the time of her death; and continued to live upon and occupy the same until January 1st, 1901, at or about which time one of them went to reside elsewhere; and the other three children took up their residence in a house built by them upon a lot of four acres—part of the farm in question—which they purchased from the other heirs of their mother, all of whom, including the appellant, Willie Wickes, executed to them a deed therefor. Willie Wickes never at any time lived or resided upon the property in question; and was never there in any capacity other than that of an occasional visitor. On the 23rd of April, 1900, the case, which is before the Court upon the present appeals; was instituted.

A bill was then filed for the purpose of having the property in question sold as real estate of which Charlotte A. Wickes died seized and possessed in fee-simple and intestate to the end that the proceeds of sale might be distributed among the heirs at law ³²¹ of the said deceased. Certain of these heirs appeared as plaintiffs and others, among whom was Willie Wickes, were made defendants. All of the defendants united in an answer to the bill admitting the allegations thereof and consenting that a decree should be passed “for the sale of the said real estate, as prayed, so that the same may be divided among the heirs at law of the said Charlotte A. Wickes according to their several and respective rights.” A decree was accordingly passed on the 6th of June, 1900, appointing Mr. Barroll trustee to make sale. The trustee reported a sale on the 29th of May, 1902, as having been made on the 27th of that month to James W. Stevens, who, on August 15th, 1902, filed in the cause a petition in which, after reciting among others, the facts which have herein been set out as to the source of title and course of descent of the property in question, he averred that Willie Wickes by the death of “Charlotte A. Wickes, her grandmother,” had become seized of the same “as tenant in tail, according to the form of the gift as in the will of * * * Samuel Wickes, the elder, is limited.” After stating reasons therefor he concluded the petition with a pfrayer that the said Willie Wickes be required to execute to him “a deed to bar the said entail, under the Act of 1782, ch. 23, now * * Art. 21, sec. 24,” of the Code upon his compliance “with all the terms of sale as to him reported.” On the 6th of September, 1902, the appellant, Willie Wickes, filed in the cause a petition in which she alleged that she “signed and sealed the answer heretofore filed in this cause believing and having all reasonable grounds to believe all the material statements of the bill of complaint to be true;” that she had recently ascertained that the statement that Charlotte A. Wickes had “left a large and valuable farm,” &c., was “entirely inaccurate and erroneous;” that the decree in the cause “was, in so far as the same related to said farm, erroneous, improvident and void;” and asked “that her name and seal appended to the original answer in this cause be removed therefrom;” that she have leave to file an amended answer to the bill; that the decree “be rescinded, stricken out ³²² and annulled;” and that the bill of complaint be dismissed as “far as the same relates to the farm” mentioned.

On the same day she filed an answer to the petition of Stevens, the purchaser, denying that he was entitled to the relief prayed in his said petition and stating at length the grounds of her defense. These it is not necessary to set out here. As far as they may be material to an understanding of the case they will appear in the report thereof. She further accompanied her petition arid answer, just referred to, with the exceptions to the ratification of the sale in which she denied the jurisdiction of the Court to make the sale; denied that the parties to the cause, other than herself, had any interest in the property sold or in the proceeds of sale; denied that Chailotte A. Wickes left a farm at her death as alleged in the bill; and averred that she had recently become aware of the facts set forth in the exceptions “having ascertained them at the time, in the manner and under the circumstances which are shown by her answer” to the petition of James W. Stevens, purchaser.

The other parties to the cause, plaintiffs and defendants, united in an answer to the petition of Willie Wickes in which they put in issue the averments thereof; deny that she is entitled to the relief asked; and rely upon laches and limitations as a defense to the same. After other proceedings, not material to notice here, the Court below was asked upon petition by both- the purchaser and the appellant, Willie Wickes, to hear and determine certain preliminary questions of law that were suggested in the petitions as being raised by the pleadings; and based the application upon sec. 183 of Art. 16 of the Code. The Court accordingly heard argument upon questions thus presented arid on the 26th of February, 1903, passed an order in which it was set out that the Court was of opinion that “the will of Samuel Wickes, the first created an estate, tail general; that James P. Wickes and the prior tenants thereof were seized of the farm or plantation, ‘Wickliffe,’ mentioned in said devise, as tenants in tail;” that William H. Wickes, eldest son of James, became seized upon the death of his father as tenant in tail of said farm; that Willie Wickes, ³²³ as the only child of William H., is tenant in tail thereof “unless the said estate tail has been broken, barred or destroyed by adverse possession, whereby Charlotte A. Wickes and those claiming” under her would be entitled to said farm in fee-simple; and that in the event said estate ' tail is not broken or barred the only relief that could be extended to the purchaser, Stevens, would be to rescind the sale to him and direct such purchase-money as he had paid “to be refunded by the trustee; but if the entail had been broken then the sale would be “finally ratified as carrying the fee-simple in said farm.” The Court finally ordered that the parties be allowed to take testimony “as to the extent and character of any adversary possession of said farm, to be returned to the Court and used in deciding said question, the Court reserving the right to decide thereon, and also as to what relief, if any, the said Willie Wickes is entitled (if not barred by limitations) in this case.” From this order Stevens, the purchaser, ordered an appeal, and the children of Charlotte A. Wickes ordered two appeals— one of which was taken generally and the other as respondents to the petition of Willie Wickes. After the taking and return of testimony as ordered the Court passed the final order in the case finally ratifying the sale, from which order the appeal of Willie Wickes was taken; and the purport of which has already been given.

The facts and proceedings in the record have been set out at length because this was necessary to a proper understanding of the attitude of the case before the Court; and of the questions to be passed upon. Leaving out of view for the present the matters embraced in the order of the 26th of February last and proceeding to a consideration of the order last mentioned ratifying the sale, it seems clear that the exceptions to the sale filed by Willie Wickes were properly overruled. The case at bar is, as respects the nature and character of the exceptions, so nearly analogous to the case of Slingluff v. Stanley, Trustee et al., 66 Md. 220 , that it is hardly necessary to do more than to make reference to that case as decisive of ³²⁴ this. The exceptions went to the jurisdiction of the Court and the merits of the decree, and presented matters against the ratification of the sale which, as among the parties thereto, were concluded by the decree until that should be set aside by the Court which passed it, or be reversed on appeal.

In the case.just cited it was said “if it be apparent on the face of the proceedings that there was an entire want of jurisdiction of the Court to decree the sale of the property, then, doubtless, the objection could be availed of in this mode.” But the Court in that case found no such condition of proceedings and the reasons given there in support of the jurisdiction all apply with pertinency and force in the case at bar. The Court in the case cited, also says “the test is, whether a demurrer'would have been sustained if interposed to the bill; and that it would not, we-think is clear.” In the present case' it is equally clear that a demurrer to the bill would not have been sustained. The bill alleged that Charlotte A. Wickes died intestate and “left a large and valuable farm” (being the property in question): that she left heirs who were named in the bill; and “that the said real estate is not susceptible of partition without loss and injury to the parties entitled to interests therein;” and prayed that a decree be passed for a sale thereof. Here were all the necessary allegations to give the Court jurisdiction to proceed to decree a sale.

We think this sufficiently .disposes of the exceptions to the ratification of the sale taken apart from other proceedings on the part of appellant in Appeal N0..10 in assertion of her claim of title to the property sold. This brings us to the inquiry, is this appellant entitled to the relief prayed in her petition of the fith of September, 1902? 'Waiving all question of procedure and assuming that the petitioner in said petition became tenant in tail under the devise and through the course of descent, which have been set out, the relief sought by the petition was properly refused by the Court below, if, as that Court determined, the claim of this appellant as such tenant in tail had become barred by limitations and the adverse possession of Charlotte A. Wickes and those claiming under her. ³²⁵ It was decided at an early date in this State under the Statute of the 21 James I, chapter 16, that the failure of the tenant in tail to enter on lands held by adverse possession against him within twenty years from the time the right of entry accrued to him barred the issue in tail. Martindale v. Troop, 3 Har. & McH. 244. And this seems never to have been questioned since.

If then under the facts of this case Willie Wickes is barred by limitations any issue of hers will be barred; and Charlotte A. Wickes or those claiming under her are invested with an indefeasible title and right of possession of the land in controversy, by reason of their adverse holding of the same, which they could not only defend against any attempt of the tenant in tail or of any issue in tail to dispossess them through legal procedure; but which they could enforce and reclaim by action of ejectment against the party holding the paper title who had ousted them. Armstrong v. Risteau, 5 Md. 256 . Such being the law, if we find Willie Wickes barred of her title to the property in question by limitations there can be no