Goldberg v. Erich

• Decision Date: 18 January 1923
• Docket Number: 124.
• Parties: GOLDBERG v. ERICH ET AL.
• Court: Maryland Court of Appeals

121 A. 365

142 Md. 544

GOLDBERG v. ERICH ET AL.

No. 124.

Court of Appeals of Maryland

January 18, 1923

Appeal from Circuit Court No. 2 of Baltimore City; Chas. F. Stein Judge.

"To be officially reported."

Suit for specific performance by Louise Erich and another against Bernard Goldberg. Decree for plaintiffs, and defendant appeals. Affirmed.

Argued before BOYD, C.J., and BRISCOE, THOMAS, PATTISON, URNER ADKINS, and OFFUTT, JJ.

Joseph S. Goldsmith, of Baltimore, for appellant.

Harry N. Baetjer, of Baltimore (Venable, Baetjer & Howard, and Joseph France, all of Baltimore, on the brief), for appellees.

ADKINS J.

The only question on this appeal is whether the limitation in remainder in a deed from Dr. Augustus F. Erich and Annie Erich, his wife, of Baltimore city, to I. George Baetjer trustee, dated February 18, 1881, and duly recorded, is void as violating the rule against perpetuities.

Certain property described in that deed was sold by appellees, life beneficiaries under said trust deed and heirs of Dr. Erich to appellant, and a contract of sale was executed by them. On application by appellant to the Maryland Title & Guarantee Company for an insured title, that company refused to guarantee it, although its chief examiner expressed the opinion that title was in appellees, but did not advise acceptance of such title because he thought the deed of trust constituted at least a cloud on the title.

In these circumstances a bill for specific performance was filed by appellees, and in due course specific performance was decreed. From that decree this appeal was taken. The habendum in the deed of trust above mentioned is as follows:

"To have and to hold the said ground and premises unto the said George Baetjer, his successors and assigns, in fee simple, as to the parcel of ground hereinbefore first described, and for all the residue of the several terms of years yet to come and unexpired therein, with the benefit of renewal forever, subject to the payment of the several yearly rents aforesaid, as to the parcels of ground hereinbefore secondly and thirdly described. In trust nevertheless for the sole and separate use of the said Annie Erich, for the term of her natural life, with full power and authority to her to sell, lease, mortgage, or otherwise dispose of all or any part of the property hereby granted during the term of the natural life of the said Augustus F. Erich, with his consent and without the consent of said trustee, and without said trustee being a party to any deed, lease, mortgage, or other conveyance, and, after the death of said Augustus F. Erich, at her pleasure with the consent of said trustee, and with him uniting in any conveyance thereof, and to reinvest the proceeds thereof, upon the same trusts as are herein declared, and so that the purchaser or purchasers, lessees or mortgagees shall not be bound to see to the application of the purchase money; and from and after the death of the said Annie Erich, then in further trust for the use of the said Augustus F. Erich, for the term of his natural life, with full power and authority to him, without the consent of the said trustee, and without the trustee being a party thereto, to sell, lease, mortgage, or otherwise dispose of all or any part of the property hereby granted, or such other property as may be purchased by the said Annie Erich, during her life, in lieu of any part or all of the property above described sold by her under the power above granted to her, and to reinvest the proceeds thereof, upon the same trusts as are herein declared, and so that the purchaser or purchasers, lessees or mortgagees shall not be bound to see to the application of the purchase money; and from and after the death of the said Augustus F. Erich, or if he shall have departed this life before the decease of the said Annie Erich, then from and after her decease in further trust for the use of all the children of the said Augustus F. Erich, living at his death, if he should survive his said wife, Annie

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