Carswell v. Swindell

Decision Date09 January 1906
Citation62 A. 956,102 Md. 636
PartiesCARSWELL v. SWINDELL et al.
CourtMaryland Court of Appeals

Appeal from Circuit Court of Baltimore City; Thomas S. Baer, Judge.

Bill by Robert S. Carswell against Walter B. Swindell, trustee, and others. From a decree in favor of defendants, plaintiff appeals. Affirmed.

Argued before McSHERRY, C.J., and BOYD, PAGE, PEARCE, SCHMUCKER JONES, and BURKE, JJ.

David M. Newbold and Thomas G. Hayes, for appellant.

Alexander Preston and John C. Rose, for appellees.

PAGE J.

The appellant filed a bill in the lower court against the appellees praying for an injunction to restrain the latter from asserting any right or title to the land and accretions thereto described in the bill, and also for the purpose of obtaining a decree removing an alleged cloud on the title of the complainant to the land and accretions. The case was submitted upon bill and exhibits. The court refused the injunction, and from the decree this appeal is taken. The facts charged in the bill are as follows: In 1904 the complainant purchased certain land at public sale from David Newbold, Jr., for $1,225, and, after final ratification of the sale, it is alleged that "the complainant entered into possession of said land, the metes and bounds of which" are described in Exhibits Nos. 1 and 2 filed with the bill. The land was originally in part, an island in the middle branch of the Patapsco river, a public navigable water within the limits of Baltimore city, and in part submerged land covered by water. The fast land forming originally said island and included in the patent hereinafter mentioned was about four or five acres, and since the 19th day of October the date when the original patent from the state of Maryland was issued, the fast land of the said island has extended nearly to the mainland, by imperceptible accretions, forming on the shores of said island and becoming part of it. That the land purchased by the complainant was patented by the state on October 19, 1861, to one Thales A. Linthicum, who on April 19, 1873, sold and conveyed the same to Sidney C. Long, who subsequently, in 1902, executed a mortgage thereon to one David M. Newbold and that said mortgage was subsequently foreclosed, and sold by the trustee thereunder, to the complainant. By the fifth paragraph of said bill, it is charged that the appellant "is now, and has been since he acquired his title to the said land; in possession of all the land" described in his deed from said trustee, as well as that described in the said patent, and that his predecessors in title were also in possession of said land, and it is also averred that he now has a clear legal and equitable title thereto, and that the said title was judicially passed upon by the Commissioner of the Land Office, in a caveat proceeding decided in favor of said Linthicum on November 8, 1873, and a certified copy of the proceeding in the Land Office is filed with the bill marked "Plaintiff's Exhibit No. 4." That the defendants (appellees), "under paper writings purporting to be deeds," claim and assert title to the land and its accretions, but have no title whatever to the same, yet the said assertions of title create a cloud upon the title of the appellants. The appellants filed with their bill exhibits which show that the said defendants have deeded said land from time to time for many years, and further allege that the appellees have "entered upon said land and accretions and pulled down a portion of the fences surrounding the said land and its accretions, threatening to destroy the building on said land, and so continued on said land until the appellant compelled them to desist from their trespass and leave his said land and premises." That the appellees still deny the title and right of possession of the appellant and threaten to again forcibly enter upon the land, and the complainant "believes and avers that said defendants will immediately attempt to carry into execution said threat, if they are not immediately enjoined and restrained by this court. It further appears from the bill and exhibits that the patent of Thalia, when the same was issued, included only a little over 16 acres of land, of which there were only 4 or 5 acres of fast land, the rest being" submerged land forming the bottom of the Patapsco river; that by subsequent "accretions to shores of the original island," extending nearly to the mainland, the area has increased, until now it includes over 34 acres. Plats are filed with the bill showing the land as granted by the patents and the accretions up to the time the mortgage was given, and also up to the period when the appellant acquired his title. It also appears, from exhibits and plats filed with the bill, that the appellees and others, from whom they derived whatever rights they may have, for many years have claimed title to the said property, showing also that they claim under a deed bearing date in 1872 from James Carroll to their ancestor Charles Ranstead, and since that time it has passed by descent or conveyances to the appellees and bought, sold, mortgaged, and partitioned by them or those claiming under them.

The general principles applicable to a bill of this nature are well settled. It is a proceeding not intended to put an end to vexatious litigation, but brought because the party fears future injury to his rights; and to maintain it the complainant must be in possession of the property; and except when the defendants are numerous, his title, if a legal one, must have been established at law, or be founded on undisputed evidence of long continued possession. Possession in this class of case is not a fact to be presumed, but must be affirmatively alleged and shown. Livingston v. Hall, 73 Md. 395, 21 A. 49. In Textor v. Shipley, 77 Md. 475, 26 A. 1019, this court said, it was a general rule in this class of cases that the bill cannot be maintained without clear proof of both possession and legal title in the plaintiff. If the plaintiff is in actual possession, he cannot have "a remedy at law, and is obliged therefore to seek the aid of a court of equity. If, however, the possession is in another person, his remedy is by action of ejectment, and there is no ground for the interposition of a court of equity, for the reason he has...

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