Beranek v. Caccimaici

• Decision Date: 21 March 1929
• Docket Number: 34.
• Citation: Beranek v. Caccimaici, 157 Md. 144, 145 A. 369 (Md. 1929)
• Parties: BERANEK v. CACCIMAICI.
• Court: Maryland Court of Appeals

145 A. 369

157 Md. 144

BERANEK v. CACCIMAICI.

No. 34.

Court of Appeals of Maryland

March 21, 1929

Appeal from Circuit CourtNo. 2 of Baltimore City; Joseph N. Ulman Judge.

Action by Mollie A. Beranek against Joseph Caccimaici.Judgment for defendant, and plaintiff appeals.Reversed and remanded.

Argued before BOND, C.J., and PATTISON, ADKINS, OFFUTT, DIGGESPARKE, and SLOAN, JJ.

T. Lyde Mason, Jr., of Baltimore (Rudolph M. Winterling, of Baltimore, on the brief), for appellant.

W. W Powell, of Baltimore (Walter I. Wells, of Baltimore, on the brief), for appellee.

PARKE J.

Mollie A. Beranek, the plaintiff, was the owner in severalty of an improved leasehold lot in Baltimore City which was subject to the payment of the annual ground rent of one cent.By her deed of assignment of May 9, 1925, she granted the leasehold estate to her adult son, William C. Wills, and her daughter Thelma C. Wills, then and now an infant, "as tenants in common, their personal representatives and assigns, subject, however, to a life estate in the said Mollie A. Beranek, which she hereby retains, together with the right and privilege to mortgage, sell or otherwise dispose of or encumber" the demised lot.The language of the grant is repeated in the habendum, and there is no repugnancy nor conflict anywhere with the operative part of the deed.Nor is there any doubt of the meaning of the words when read in their ordinary and grammatical sense, which, when given effect, create estates and powers of a sensible and reasonable kind in accordance with the plain intention of the grantor, as gathered from the four ends of the instrument.Brown v. Reeder,108 Md. 653, 71 A. 417;Marden v. Leimbach,115 Md. 206, 210, 80 A. 958.

The grantor assigns the residue of her term, subject to an estate in her for life, to her two children as tenants in common, their personal representatives and assigns, with the reservation of a power in herself to mortgage, sell, or otherwise dispose of or incumber the term granted.In other words, a life estate is reserved with an absolute estate in enjoyment at its termination, to two persons, subject to the power of the life tenant to defeat the life estate and estate given at its end by sale, mortgage, or other incumbrance.

At common law, an estate of freehold could not be created to begin immediately, subject to life estate reserved in the grantor, because, as accurately stated by Mr. Tiffany, it "involved an attempt, by one transaction, to dispose of one's own estate and to acquire another estate."The learned author, however, sums up the present rule in this way: "And that an estate can be created in favor of another, to commence in enjoyment upon the grantor's death has been generally recognized in this country"--and this statement is true of this jurisdiction.Tiffany on Real Property (2d Ed.) § 159, infra.So a grantor, on authority and precedent, may now immediately convey or assign by deed so that out of his fee or leasehold estate the grantor may at once reserve a life estate in himself with an absolute estate over to others (a) subject to a power reserved in himself to sell, mortgage, or otherwise incumber the fee or term, (b) and thereby defeat the conveyance or grant.(a)Hewitt's Appeal, 55 Md. 509 513, 514;Murray v. Kerney,115 Md. 514, 81 A. 6, 38 L. R. A. (N. S.) 937;Gaither v. Williams,57 Md. 625;Moody v. Hall,61 Md. 517;2 Devlin on Deeds(3d Ed.) § 979, p. 1834.(b)Roberts v. Roberts,102 Md. 131, 147, 62 A. 161, 1 L. R. A. (N. S.) 782, 111 Am. St. Rep. 344, 5 Ann. Cas. 805;Foos v. Scarf,55 Md. 301, 310-312;Weinbeck v. Dahms,134 Md. 464, 468, 107 A. 12;Tiffany on Real Property (2d Ed.) § 32, p. 80;Brandau v. McCurley,124 Md. 243, 92 A. 540, L. R. A. 1915C, 767;...