Bay v. Posner

• Decision Date: 21 June 1893
• Citation: 26 A. 1084,78 Md. 42
• Parties: BAY ET AL. v. POSNER.
• Court: Maryland Court of Appeals

26 A. 1084

78 Md. 42

BAY ET AL. v. POSNER.

Court of Appeals of Maryland

June 21, 1893

Appeal from circuit court of Baltimore city.

Action by Samuel Posner against James H. Bay and others to recover land. From a pro forma decree for plaintiff, defendants appeal. Reversed.

Argued before BRYAN, ROBERTS, McSHERRY, BRISCOE, and FOWLER, JJ.

A. S Niles and Oscar Wolff, for appellants.

M. R Walter, for appellee.

FOWLER J.

This is one of the many cases which from time to time are brought here on appeal from pro forma orders for the purpose apparently, of making, if possible, a perfect title out of one which is already good and marketable. But the law has wisely, not required that titles to real estate shall be absolutely perfect and free from every possible doubt. In the case of Gill v. Wells, 59 Md. 492, after saying that no general rule can be laid down as to what doubts will be sufficient to make a title not marketable, this language is used: "A threat or even the possibility of a contest will not be sufficient. The doubt must be considerable and rational, such as would and ought to induce a prudent man to pause and hesitate,--not based on captious, frivolous, and astute niceties, but such as to produce real, bona fide hesitation in the mind of the chancellor." With this statement of the general rule in view, we will proceed to examine the objections relied on by the appellee to show that the title of the appellants to the property in question is not a good and marketable one:

1. That the grantee's name is omitted in the granting clause of one of the deeds under which the appellants claim. Not much reliance was placed upon this objection, and properly so, for we can see no force whatever, as applied to the deed in question, from Nesbitt to Williamson, dated 18th September, 1810, and recorded in Liber W-G, No. 112, vol. 24, etc. It is true that the name of Williamson, the grantee, is omitted from the granting clause; but it fully and clearly appears from the face of the deed that Nesbitt was the party of the first part, and Williamson the party of the other part, and that Nesbitt sold to Williamson the lot of ground in said deed described, for the sum of $3,000, and that Williamson was the person who was "to have and to hold the said lot of ground," etc. This deed appears to contain the requisites of a good deed, even under the requirements of our Code: The name of a grantor, and the name of one who is "to have and to hold" the estate intended to be conveyed; a consideration, and a description sufficient to identify the premises and the interest or estate intended to be conveyed. Code, art. 21, § 9.

2. The second objection is "that the sale of the original fee reversion by the administrator d. b. n. c. t. a. of Benjamin T. Hynson, under whom the appellants claim title, was unauthorized by law, and void." By his last, will Hynson devised and bequeathed all the residue of his estate, including his interest in the lot in question, to his children, and then...