Columbia Bldg. Co. v. Cemetery of the Holy Cross

• Decision Date: 18 April 1928
• Docket Number: 60.
• Citation: 141 A. 525,155 Md. 221
• Parties: COLUMBIA BLDG. CO. v. CEMETERY OF THE HOLY CROSS.
• Court: Maryland Court of Appeals

141 A. 525

155 Md. 221

COLUMBIA BLDG. CO. v. CEMETERY OF THE HOLY CROSS.

No. 60.

Court of Appeals of Maryland

April 18, 1928

Appeal from Circuit Court of Baltimore City; H. Arthur Stump, Judge.

"To be officially reported."

Suit by the Cemetery of the Holy Cross against the Columbia Building Company. Decree for plaintiff, and defendant appeals. Affirmed.

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

John M Requardt, of Baltimore (Harry E. Parkhurst, of Baltimore, on the brief), for appellant.

Thomas Foley Hisky, of Baltimore (Thomas N. Copenhaver, of Baltimore, on the brief), for appellee.

OFFUTT J.

James Dolan on May 1, 1862, executed to the Associated Professors of Loyola College in the City of Baltimore, a corporation the Trustees of the Orphans' Home of Baltimore City, a corporation, and Bernard L. McManus, rector of St. John's Roman Catholic Church in Baltimore City, a bond for the conveyance of a tract of 15 acres and 33 square perches of land lying in what was then Baltimore county, but is now a part of Baltimore City, on the east side of the Harford road, "to be held and used by the obligees in this bond, their representatives and assigns as a cemetery for the burial of deceased Catholics on such terms and under such obligations as the said corporations or Bernard J. McManus, may hereafter agree on and prescribe."

On February 28, 1863, the obligees named in that bond executed a deed conveying the land described in it to the Cemetery of the Holy Cross, a corporation, "subject nevertheless that the payment of the purchase money therefor, as set forth in said bond of conveyance, the said lands to be held and used by the Cemetery of the Holy Cross, and its assigns as a cemetery for the burial of deceased Catholics on such terms, under such regulations and as the Cemetery of the Holy Cross may hereafter agree upon and determine."

On January 25, 1927, the Cemetery of the Holy Cross, by its contract under seal, agreed, in consideration of $25,000, the conveyance of another smaller lot of ground to it, the construction of certain streets, alleys, and ways, and the improvement of a part of its remaining property, to grant to the Columbia Building Company a part of the land which it acquired under the deed last referred to, and to convey it in fee simple by a good and merchantable title to the purchaser.

The vendee refused to consummate the sale on the ground that the vendor was unable to give it a good and merchantable title in fee simple, and on January 5, 1928, the vendor filed in the circuit court of Baltimore City its bill of complaint to compel the vendee to specifically perform its contract for the purchase of the property.

The defendant answered, and in due course the case was heard upon the bill, exhibits, answer, and an agreed statement of facts, and a decree entered requiring the defendant to specifically perform its contract for the purchase of the property. This appeal is from that decree.

The sole question presented by the appeal is whether the statement which appears in both the bond and the deed that the whole tract, of which the land described in the contract of sale is a part, is to be held and used for cemetery purposes affects the merchantability of the vendor's title. The appellant contends that it does, upon the ground that the language referred to created a trust, and that upon the diversion of the property from the purposes of the trust it will revert to the heirs of Dolan, the obligor named in the bond of conveyance. The appellee contends that it does not (1) because it holds the land in question in fee simple by adverse possession, and (2) because whether or not the language quoted created a trust the sale is in aid of and not in violation of the purpose of the grant, and that the language does not create a condition which can derogate from the quality of its title as an estate in fee simple.

The facts of the case are not disputed and may be found in the pleadings, and in an agreed statement of facts, and from these sources it appears: (1) That a part of the whole tract never used for purposes of sepulture was condemned by Baltimore City in 1915 in connection with the opening of Wolfe street from North avenue to the Harford road. (2) That the whole tract described in the bond of conveyance was inclosed by the appellee with a substantial fence, and, "with the exception of the small strip hereinafter mentioned, from February 28, 1863, to the present time, has had notorious, adverse, open, exclusive, and continuous possession of the property mentioned and described in Plaintiff's Exhibits No. 1 and No. 2, and which includes the land mentioned in the contract of sale in this cause, Plaintiff's Exhibit No. 3." That the opening of Wolfe street left a small strip of land binding on it in which no rights of sepulture have ever been granted or any interments made, and which will never be needed for purposes of interment, because by reason of the changed character of the neighborhood the number of removals therefrom greatly exceed the number of interments therein. (3) "That the physical condition of said cemetery has been and is unsightly and greatly in need of care and improvement and the chapel therein is going to ruin, and the general condition of said cemetery has been the subject of strong and urgent complaint from the neighbors living around said cemetery. That the plaintiff has been and is in need of money for cleaning up the cemetery ground, for repairing the roadways thereof, and for repairs to the chapel building in said cemetery, which chapel is in a woeful state of ill repair and in danger of total decay, and the sale of said land will provide the funds necessary for the repairs and maintenance of said cemetery and will thereby be advantageous to the plaintiff." And (4) that from 1863 to the present time appellee's title to the property mentioned in the contract of sale has been undisputed.

The contention that the appellee holds the land by adverse possession presents no difficulty. It is undisputed that from the time it entered into possession of the land at least until the condemnation of a part of it for the opening of Wolfe street in 1915 it held and used it in strict and literal compliance with all the terms both of the bond of conveyance from Dolan and of the deed from McManus and others. The hostile possession necessary to a title by adverse possession only begins when a right of action accrues to the true owner (Tiffany on Real Property, par. 506), and if the language affecting the use of the property created, as appellant contends, a condition subsequent, then no right of action accrued until there was a breach of that condition; and, since there was nothing which could possibly be construed as a breach of it prior to the date of the contract of sale, no right of action accrued in favor of the persons to whom the title would revert, and the possession of the appellee never was hostile to whatever rights they may have had in the property. The case of Rydzewski v. Grace & St. Peter's Church, 145 Md. 535, 125 A. 717, cited by the appellee, presents facts wholly different from those involved in this case, for there the church entered into possession under a void deed, and the adverse character of its possession rested on that fact. And that is true also of the cases of Gump v. Sibley, 79 Md. 165, 28 A. 977; Zion Church v. Hilken, 84 Md. 170, 35 A. 9; Regents v. Calvary Church, 104 Md. 635, 65 A. 398; Dickerson v. Kirk, 105 Md. 638, 66 A. 494, cited in Rydzewski v. Grace Church, supra.

But the second proposition of the appellee, that it holds an indefeasible title in fee simple to the land in question under the deed from McManus and others, is in our opinion sound. The right of the grantors in that deed to convey the property is conceded, so that the only objection which could be raised to the title conveyed by it to the appellee is that the proviso that occurs both in the bond of...