Williamson v. Mayor of Baltimore

Bowie, C. J., delivered tbe opinion of tbis Court: David Williamson, by bis deed dated tbe 12th of June 1194, conveyed unto John Townsend and others a certain lot in tbe city of Baltimore, in trust for tbe sepulture and burial of tbe poor and strangers dying within tbe city. No provision being made in tbe deed for tbe appointment of successors for tbe continuance of tbe trusts, tbe grantor and grantees, by deed dated 12th December 1198, conveyed tbe said lot to tbe Mayor and City Council, “to have and to bold tbe land and premises unto tbe Mayor and City Council and their successors forever, as a place for tbe sepulture and burial of poor persons and strangers dying in tbe city of Baltimore, and to and for no other use, intent or purpose.” Tbe appellees filed their bill on tbe 16th September 1850, in tbe Superior Court, as a Court of Equity, setting forth ⁴¹⁵ the above facts, and alleging that they had faith fully Continued to perform the trust, until the rapid increase of the city around the premises, rendered it inexpedient; that wishing to perpetuate the benevolent object of the first conveyance, they have purchased a more spacious lot of ground situate beyond the limits of the city. They prayed that the appellants might be summoned to answer, and' that the “Potters Field” might ho sold under a decree of the Court. The appellants, by their answer, admitted that the ground and premises referred to in the bill, were conveyed for tbe purposes charged, but insisted that whenever it ceased to he used for that purpose, it became forfeited to the heirs and representatives of the grantor.

On the 9th of June 1858, the parties, by their counsel,, entered into the following agreement: “It is agreed that a decree shall pass for a sale of the° property, Grafton L. Dulany and T. Parkin Scott to he the-trustees; one-lialf of the net sales to he paid to the complainants, and one-half the net sales to he divided amongst' the representatives of David "Williamson, senior,.deceased. Terms of sale, one-third cash, and the balance in. six and twelve months, with interest and security.” Upon this agreement a decree for .the sale of the lands was passed, and the trustees required to bring into Court the proceeds, to be distributed under its order, after deducting commission and costs. The sale being made, the auditor stated an account, distributing the proceeds, equally between the city and the representatives of Williamson, hut charging the city with-the amount of paving tax. The appellees excepted to the-auditor’s account; the Court below sustained their, exceptions, and ordered the auditor to state another account, charging the whole fund with the amount of the paving' tax, and dividing the balance between, appellants and ⁴¹⁶ appellees equally.

From which order this appeal is taken. At the hearing of the exceptions below, it was admitted . that application was made by property -holders (of which the Mayor and City Council was not one) binding’ on Orleans street, in 1857, for the paving of that street, and that it was accordingly paved during that year; but that no application was made by the defendants, or either of them, nor was their assent thereto asked or given; also, that the city used the property for other purposes than a burial ground, without the consent and without objection of the defendants. The appellants contend the auditor’s report was based upon the true interpretation of the agreement; according to which, having purchased their peace by surrendering their claim to one-half the net proceeds, they were entitled to the other, without deduction; that the paving tax Was incurred whilst the