Fertitta v. Bay Shore Development Corp., 19

• Decision Date: 11 February 1969
• Docket Number: No. 19,19
• Citation: 250 A.2d 69,252 Md. 393
• Parties: Rosemary FERTITTA v. BAY SHORE DEVELOPMENT CORPORATION et al.
• Court: Maryland Court of Appeals

Page 393

252 Md. 393

250 A.2d 69

Rosemary FERTITTA v. BAY SHORE DEVELOPMENT CORPORATION et al.

No. 19.

Court of Appeals of Maryland.

Feb. 11, 1969.

Charles C. W. Atwater, Baltimore, (David A. Carney and Mylander & Atwater, Baltimore, on the brief), for appellant.

Jack Dunlap and Marcus J. Williams, Berlin, (Williams & Dunlap, Berlin, on the brief), for appellees.

Before HAMMOND, C. J., and MARBURY, FINAN, SINGLEY and SMITH, JJ.

SMITH, Judge.

This case arises because of an apparent error of the State Roads Commission in that a road near Ocean City was built in a place other than in the location described in the deeds.

Sinepuxent Beach Company of Baltimore City laid out a tract of land north of the former corporate limits of Ocean City. A plat was recorded among the Worcester County land records in 1891. Just prior to World War II the Maryland State Roads Commission (Commission) desired to acquire a 120 foot right-of-way for a road from Ocean City to the Maryland-Delaware State line at Fenwick Island. It is conceded that it was the intent of the Commission in acquiring its right-of-way to take land on each side of Philadelphia Avenue as it was laid down on the Sinepuxent Beach plat. Reference to plat 1 will demonstrate this point. It is a copy of a portion of the Commission's plat.

PLAT 1

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

In accordance with plat 1 the father of appellant (Fertitta), her predecessor in title, made a conveyance to the Commission on its usual deed form conveying the land 'lying between the lines designated 'right-of-way lines' as shown and/or indicated on the aforesaid plat * * *.' He owned lots 1 and 2 in Block 87, being the land at the southeast corner of 30th Street and Philadelphia Avenue. As will be noted, the lots bind on the east side of Philadelphia Avenue and, therefore, appellant's father acquired under his deed title to the middle of Philadelphia Avenue pursuant to Chapter 684 of the Acts of 1892 now codified as Code (1966 Repl.Vol.) Art. 21, § 107.

After the acquisition of title from appellant's father and others the Commission proceeded with construction of the road from Ocean City to Fenwick Island. Unfortunately, Philadelphia Avenue and the various lot lines were not accurately laid down on the Commission's plat, a fact here conceded by all parties. A local surveyor was retained by the Commission to resurvey the area and lay down the road as actually constructed. The product of his work is here reproduced as plat 2. After the completion of that plat in 1952 (it is claimed that the intervention of World War II slowed down this settlement) a deed was prepared on behalf of the Commission from appellant's father to the Commission. Instead of conveying to the Commission land 'lying between the lines designated 'right-of-way lines' as shown and/or indicated on the aforesaid plat * * *', (the form used in the 1940 deed and the form then commonly used by the Commission) the 1952 deed conveyed by a precise description as follows:

Plat 2

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

'Beginning for the same at a point in the Northerly line of Lot No. 1, Block 87, as said Lot No. 1 is shown on the plat of the Sinepuxent Beach Company, recorded among the Land Records of Worcester County, in Plat Book O.D.C. No. 1, Folio 2, and also in Plat Book O.D.C. No. 2, Folio 13, said point of beginning situated 1.96 feet, measured Southeasterly along the Northerly Line of said Lot No. 1, from the Northwest corner of Lot No. 1, thence binding along a part of the Northerly line of Lot No. 1, S. 64 -11 -00 , E. 120.02 feet, to intersect the Easterly right-of-way line of the state highway leading from Ocean City to the Delaware State Line; thence, binding along said Easterly right-of-way line, S. 26 -46 -00 , W. 100.02 feet, to intersect the line of division between Lots Nos. 2 and 3 of Block 87, as said lots are shown on the aforesaid plat of the Sinepuxent Beach Company, thence, binding along a part of the line of division between said Lots Nos. 2 and 3 N. 64 -1 -00 , W. 120.02 feet, to intersect the Westerly right-of-way line of the state highway leading from Ocean City to the Delaware State Line; thence, binding along said Westerly right-of-way line, N. 26 -46 -00 , E. 100.02 feet, to the place of beginning.'

The deed also contained the following language:

'It is understood that this deed and the attached plat is in substitution for and in lieu of the deed and attached plat from Frank Fertitta to the State of Maryland to the use of State Roads Commission dated February 17, 1940, and recorded among the Land Records of Worcester County in Liber JEB No. 3, folios 471 and 472.'

It will be observed from an examination of the plat that Fertitta was left with a strip between the road right-of-way as actually laid down and Philadelphia Avenue as laid down on the original Sinepuxent Beach plat (but never improved) varying in depth from .3 of a foot on the south end to 1.9 feet on the north end. Philadelphia Avenue was originally laid down to be 60 feet in width. Accordingly, Fertitta claims 30 feet of this unopened street fronting on Lots 1 and 2 of Block 87.

It is to be noted that Fertitta's father, who may or may not have been represented by counsel, did not require the Commission to follow the practice that some careful title counsel would have followed of requiring the Commission to convey to Mr. Fertitta the land originally conveyed by him to the Commission followed by a new deed from him with the proper description to the Commission.

Appellee (Bay Shore) obtained a quit claim deed from the Commission on February 27, 1961. Parcel No. 2 in that deed is a strip approximately 60 feet wide by 300 feet long lying between Lots 1 to 6, inclusive, of Block 87 and Lots 7 to 12, inclusive, of Block 88 on the original Sinepuxent Beach plat, being the bed of Philadelphia Avenue as there laid down between 29th and 30th Streets, except for a small portion thereof at the south end of the block apparently included within the corrected State Roads Commission right-of-way, sometimes referred to as 'Ocean Highway' and as 'Coastal Highway'. Parcel No. 3 is a similar parcel representing Philadelphia Avenue between 30th Street and 31st Street.

The quit claim deed from the Commission contained the following language:

'Subject to and excepting from the operation and effect of this deed any and all rights and reservations that may have been granted or reserved by former owners of this property or their predecessors in title and/or covenants or restrictions which may have been established with respect to said land by such former owners or their predecessors in title.'

The land owned by Bay Shore includes land in Block 90 described as being the westernmost parts of the lots there laid down lying between the Coastal Highway and the easternmost line of Philadelphia Avenue acquired by deed from Cullen S. Jenkins and wife, a carefully prepared deed. It is specifically noted that in this deed from Jenkins to Bay Shore in 1959 Jenkins purported to convey all of Philadelphia Avenue south of the land of Fertitta and north of 29th Street. Opposite the land of Fertitta and no to the north Jenkins purported to convey the westernmost half of Philadelphia Avenue. The description called for the southern boundary of Fertitta's land as one of the lines. A part of that parcel was contained in the 1961 quit claim deed from the Commission to Bay Shore.

Fertitta sued Bay Shore in ejectment as to the thin sliver of land lying between the Ocean Highway as described in the 1952 deed and Philadelphia Avenue and also as to the eastern half of the bed of Philadelphia Avenue opposite Lots 1 and 2 of Block 87, after Bay Shore in 1964 opened the Arnold Palmer Driving Range and placed blacktop surfacing on a part of the disputed land.

The trial court entered judgment for the appellee. It held Fertitta to be without title because there was no deed from the Commission to Fertitta's father executed in accordance with what is now Code (1966 Repl.Vol.) Art. 21, § 1.

The trial court was correct in holding that the plaintiff must recover by the strength of his own title and not the weakness of the title of his adversary. In Richardson v. B. & D. B. R. Co., 89 Md. 126, 42 A. 938 (1899) our predecessors said:

'In this State it is well settled that, in actions of ejectment, the plaintiff must show that he has a legal title, and the right of possession in the land.' (emphasis in original) Id. at 128, 42 A. at 939.

After the adverse judgment in the trial court and within the 30 day period provided for revision of judgment Fertitta moved that the case be transferred to equity. The motion was denied.

It was contended in the trial court and is here contended by Fertitta that the recording of the 1952 deed from her father to the Commission was in substitution for and in lieu of the original deed and that this thereby vested him with title to the sliver of land between Coastal Highway and Philadelphia Avenue with the consequent rights in Philadelphia Avenue.

There can be no question but that Fertitta's father divested himself of legal title to the land in question when he executed the first deed to the Commission. The question, therefore, arises as to what, if any, effect should be given to the subsequent conveyance to the Commission. 26 C.J.S. Deeds, § 174 states:

'What a court may do in the cancellation of a deed the parties may do voluntarily, and under the facts of particular cases it has been held that, if an unrecorded deed is canceled by the consent of the parties thereto, it may operate to restore the estate to the grantor, if the rights of third persons have not intervened. So, as between the parties and persons with notice, a deed, although recorded, is vacated and annulled by the acceptance by the grantee of a subsequent inconsistent deed from the grantor.' (emphasis added)

23 Am.Jur.2d, ...