Goen v. Sansbury

• Court: Maryland Supreme Court
• Writing for the Court: Before HENDERSON, HAMMOND, PRESCOTT and HORNEY, JJ., and THOMAS J. KEATING, Jr.; HAMMOND
• Citation: Goen v. Sansbury, 219 Md. 289, 149 A.2d 17 (Md. 1959)
• Decision Date: 17 March 1959
• Docket Number: No. 149,149
• Parties: Helen P. GOEN, Alice F. Cross, and Carolyn Pumphrey, v. Nellie SANSBURY.

Page 289

219 Md. 289

149 A.2d 17

Helen P. GOEN, Alice F. Cross, and Carolyn Pumphrey, v. Nellie SANSBURY.

No. 149.

Court of Appeals of Maryland.

March 17, 1959.

William E. Brooke, District Heights (Shriver & Brooke, District Heights, on the brief), for appellants.

T. Van Clagett, Jr., Upper Marlboro (M. Hampton Magruder, Upper Marlboro, on the brief), for appellee.

Before HENDERSON, HAMMOND, PRESCOTT and HORNEY, JJ., and THOMAS J. KEATING, Jr., J., specially assigned.

HAMMOND, Judge.

The appeal is from a decree dismissing a bill by landowners (the descendants of Otho S. Pumphrey and a spouse of one, hereinafter called 'the Pumphreys') against an adjoining owner (Mrs. Sansbury) to remove a cloud on the title to a tract of ground claimed by both, after a finding by the chancellor that Mrs. Sansbury had acquired good title to the disputed area by adverse possession. Mrs. Sansbury claims in this Court that the chancellor's decision is supportable on the alternative theory that there was no basis for equitable relief shown since the Pumphreys did not have possession, citing cases such as Carswell v. Swindell, 102 Md. 636, 62 A. 956. The point was not raised below, does not present the issue of fundamental jurisdiction, and is not before us. Maryland Rule 885; Code, 1957, Art. 16, Sec. 128; Haldas v. Commissioners of Charlestown, 207 Md. 255, 263, 113 A.2d 886; Moore v. McAllister, 216 Md. 497, 505 et seq., 141 A.2d 176.

Near Forestville in Prince George's County are two tracts of land which were once both owned by one Nathan Summers, who died in 1844. The High Court of Chancery of Maryland partitioned his land among his heirs. His daughters Louisa and Ann, in 1855, deeded to one Angell what is now the land of the Pumphreys, including the portion in controversy. From Angell the land came by mesne conveyances to Otho S. Pumphrey in 1923 and, at his death, passed to the appellants. From 1844 on, the Pumphreys showed a clear chain of title. The tract of land owned by Mrs. Sansbury, the respondent below, first appeared in her chain of title in 1867, when the administrator of one Albert Berry conveyed the tract--some forty-seven acres--to one Grafton Suit. No one has been able to locate of record any grantor of Berry or of his administrator. Recorded in 1896 (almost thirty years after Berry's death) were two contracts of sale, wherein Berry was vendee and Louisa Summers vendor, dated November 16, 1844, and July 12, 1849, which described the land remaining in Louisa Summers after her conveyance to Angell. The descriptions in the contracts do not conflict with those in the deeds to Angell and to the Pumphreys, although the description in the 1867 deed does, in that it purports to convey some of the land, including that in dispute, conveyed earlier by Louisa Summers to Angell. The expert title witness for the Pumphreys said he found no evidence of title in Berry or his administrators, other than the contracts of sale recorded years later, which did not cover the land in dispute.

When the 1867 deed from Berry's administrator was recorded, there was also recorded a plat prepared by the county surveyor which reflected the descriptions in that deed. Mrs. Sansbury acquired the Suit property in 1909. In 1924 she caused to be made and recorded a plat preparatory to offering lots for sale in a sub-division she called Sansbury Park and, in 1925, had recorded a similar plat which sub-divided the back lots--those in and near the area in dispute--into smaller lots. The outlines of these plats corresponded to those of the 1867 plat. In 1954, in an effort definitely to establish her line, Mrs. Sansbury employed another surveyor. He found the crucial lines to overlap the Pumphreys property but by less than the lines of the earlier plats. In 1938 the Pumphreys sub-divided their land in order to sell lots in a development they called Old Longfield. Their surveyor discovered a conflict or overlap in the lines of the two properties, and the plat he made and recorded did not sub-divide the area in controversy, although the outer lines of the whole Pumphrey property as shown on the plat were those called for by the deed to Otho S. Pumphrey. A surveyor produced at the trial by the Pumphreys testified that his work in the field led him to the conclusions, illustrated by a plat he introduced in evidence, that the 1867, 1924 and 1925 plats of the Sansbury property showed a triangular encroachment into the Pumphrey property, varying from nothing at the apex to a length of 325 feet at the base (an area of 5.78 acres), and that the 1954 plat showed a similarly shaped encroachment 297 feet long at its base (an area of some 5 acres).

The evidence Mrs. Sansbury offered in support of her claim to the pie-shaped area by adverse possession was that some time between 1909 and 1924 her husband had built a half-mile racetrack fairly close to the disputed area, on which he had conducted trotting races several times a year and that the back area (where the controversial triangle was) had been used for stables and the breeding of horses. It was not shown with particularity that the critical area was actually used for any purpose, the reference to the back land seemingly intending to convey the idea that the pie-shaped area had been used. In 1924 a sale of lots in the front part of the property was held. There was extensive advertising and a public auction attended by several hundred people, at which some one hundred lots were sold. In 1925 after the back land had been replatted into smaller lots, a similar sale was held. There was testimony by Mrs. Sansbury and her son that trees were cut down inside the lines of the streets shown on the plat and that these indicated streets ran to the edge of the property claimed by the Sansburys. The lots were staked out; however, the auction of them in 1925 was not well attended, the prices offered were low, and the auction was called off and the offers to sell withdrawn. There is no evidence in the record whatever of any other acts in connection with, or conduct in relation to, the disputed area from 1925 until 1938, other than the paying of taxes. Both the Sansburys and the Pumphreys paid taxes on the triangle in controversy.

In 1938, when the Pumphreys were in the process of sub-dividing their land, one of Mrs. Sansbury's sons advised the surveyor that he apparently was over their line. As a result, discussion was had and the Sansburys' and the Pumphreys' representatives went to the land records in Upper Marlboro in an effort to establish the true line, but they were unable to resolve the problem. The Pumphreys recorded their 1938 plat, on which the surveyor had put his certification that 'this sub-division' did not conflict with 'any other sub-division heretofore made and recorded * * *' (a statement which might be said to be literally true since the sub-divided part of the entire tract did not, although some boundary lines did). Mrs. Sansbury did nothing further with regard to the pie-shaped area until 1954, when she ordered the survey. As a result of that survey, markers were placed on the lines then run. Mrs. Sansbury never lived on any part of her land. Neither the Pumphreys nor Mrs. Sansbury personally occupied the area in controversy nor sold lots out of it, although both sold lots out of other parts of their respective holdings.

The principles of law that control the case are well established. The Pumphreys showed a valid record title to the area in controversy and that they were in actual possession of a part of the whole land described in their deed. Mrs. Sansbury showed but color of title. Generally, one who has color of title, like one who has actual title, has constructive possession of the land within the outlines of his title, although he actually occupies only a part of it. However, one who enters upon the land of another, though under color of title, gives no notice to that other of any claim, except to the extent of his actual occupancy. Thus, if a true owner be in actual possession of part of the whole land to which he has record title, he is in constructive possession of...