Kelso v. Steiger

• Decision Date: 15 March 1892
• Citation: 24 A. 18,75 Md. 376
• Parties: KELSO v. STEIGER et al. [*]
• Court: Maryland Court of Appeals

24 A. 18

75 Md. 376

KELSO v. STEIGER et al. ^[*]

Court of Appeals of Maryland

March 15, 1892

Appeal from circuit court, Baltimore county.

Ejectment by Benjamin F. Steiger and others against Jane M. Kelso. Judgment for plaintiffs. Defendant appeals. Reversed.

Argued before ALVEY, C.J., and MILLER, ROBINSON, IRVING, BRYAN, and MCSHERRY, JJ.

R H. Smith, Fred M. Story, Milton W. Offutt, and Alfred S. Niles, for appellant.

C H. Stanley, D. G. McIntosh, and Samuel Snoden for appellees.

ALVEY C.J.

Tihs is an action of ejectment, brought by parties claiming to be descendants of Andrew Stigar, long since deceased, against the appellant, the defendant below, for the recovery of certain undivided interests in a parcel of land in the city of Baltimore. The parcel of land sued for is described in the declaration by metes and bounds, courses and distances, and as being the same piece or parcel of land described in a certain deed from Joseph Mathews and others, trustees, to the defendant, bearing date December 23, 1882, and which deed was duly recorded in the land record referred to.

The foundation of the claim and supposed right of entry arises, as contended by the plaintiffs, by way of reverter, occasioned by the diversion from the uses and purposes for which the land in question was originally conveyed by Andrew Stigar, the ancestor, to John Cornthwait and Gerard Hopkins, and their heirs, in trust, by deed dated the 19th of June, 1773, for certain purposes therein set forth. That deed was made for a consideration expressed, and it declared the uses and purposes of the land granted to be "for and to the use of and purposes following, that is to say, for the use of the society of Christian people called 'Quakers,' inhabiting and dwelling in and near the town and county of Baltimore, in the province aforesaid, to inclose and keep the same for a burying-place, to bury or inter those of the same society that may from time to time depart this transitory life, and also to erect or build a meeting-house for the same society of people, for the public worship of Almighty God, or such other improvements as they, the said society, may think proper." The Quakers entered into possession, and held and used the ground as the property of the society, and conveyances were made from time to time to keep up the succession of trustees; and certain special acts of the general assembly of the state were obtained to confirm rights supposed to require such confirmation, and to confer rights as to the use and disposition of the property. Acts 1793, c. 20; Acts 1812, c. 158; Acts 1821, c 130; Acts 1852, c. 268; and Acts 1874, c. 390. In the preamble to the last-mentioned act, all the preceding legislation upon the subject is recited, and the act then, in its preamble, recites: "Whereas, since the purchase of the burial ground out of the limits of the city, there have been but few interments, and none of late years, within the burial ground on said property, and no probability of its ever again being used as a place of interment for the dead; and whereas, both of said meetings--the one worshiping in the meeting-house on said property, and the other worshiping in the meeting-house on Lombard street, comprising the monthly meeting of said Society of Friends--being desirous of disposing of a portion of said property not covered by the meeting-house, for the purpose that out of the proceeds of sale or lease, of giving education to the children of parents, one or both of whom may be members of the Society of Friends; and whereas, John C. Turner, William Riley, John Brown, and Joseph Mathews, having been appointed by their respective meetings trustees, the legal title to said property is vested in said trustees,"--therefore it was enacted that the trustees above named, or their successors, were thereby authorized to sell and convey in fee-simple, or lease for 99 years, renewable forever, such part of the property belonging to the monthly meeting of the Society of Friends in the city of Baltimore, of which they were the trustees, not covered by the meeting-house now standing thereon, in such lots, parcels, or portions as to them or their successors might seem advisable, and to appropriate the proceeds to the purpose in the foregoing preamble mentioned; and all laws inconsistent with the act were declared repealed. It was by virtue of authority supposed to be derived from this act of 1874 that the trustees of the Society of Friends made the deed to the defendant of the 23d of December, 1882. That deed makes special reference to the deed of Andrew Stigar, to the trustees, of the 19th of June, 1773, and recites the fact that the trustees executing the deed were the successors of the trustees named in the deed from Stigar to the trustees in 1773, and also of the trustees named in the act of 1874, c. 390, and without which right of succession, of course, there was no right to convey. The deed to the defendant is for part of the lot of ground conveyed and described in the old deed, from Stigar to the trustees, in 1773, and conveys the estate in fee simple, and describes the part conveyed by metes and bounds, courses and distances, and which description is the same as that set out in the declaration of the plaintiffs. The deed declares in terms that the part conveyed is part of the parcel conveyed by Stigar to the trustees, referring to that deed specifically. The deed to the defendant was accepted by her, and was duly recorded; and the defendant entered upon, and has used and occupied, the property, under the deed; and she still holds possession thereof, and has placed valuable improvements thereon, of a nature wholly different from those mentioned in and contemplated by the deed from Stigar to the original trustees. It is because of this diversion from the original purpose of the grant, and the ceasing to use the property for the purposes for which it was originally conveyed to the trustees, that the descendants of Andrew Stigar now claim that they are entitled, by way of reverter to the estate.

In the trial of the case below the plaintiffs, in support of their claim of title and right of entry, offered and read in evidnce the two deeds,--the one from Andrew Stigar to Cornthwait and Hopkins, trustees, and the other from Mathews and others, trustees, to the defendant. The first of these deeds came under the consideration of this court in the recent case of Society v. Dugan. 65 Md. 460, 5 A. 415. The trustees for the Society of Friends or Quakers in Baltimore, by authority of the society, and under the supposed power conferred by the act of 1852, c. 268, disposed of a part of the ground acquired from Stigar, and which by mesne conveyances became vested in the appellant in that case, and the latter contracted to sell the same to the appellee in that case, and the question was whether a good, marketable title could be made; and this court, mainly upon the authority of the case of Reed v. Stouffer, 56 Md. 253, held that the title was not such as the appellant in that case could sell as a clear, marketable title, by reason of the defeasible nature of the titles conveyed by the two deeds in question there,--the one from Stigar to the original trustees of the Quakers, and the other from Deaver to the same trustees, for the same purposes as those declared in the deed from Stigar. In that case this court said: "There having been a clear diversion of the property from the uses to which it was devoted by the original deeds, the rights of the heirs at law of the original grantors of the property, who from the great lapse of time may be supposed to be dead, to have the land again by reverter, have arisen, and cloud the title of the appellant. It does not appear that the heirs of Stigar or of Deaver have failed, or that the reversions had escheated to the state before the act of 1852." It was further held that the act of 1852 could not have the effect of diverting vested rights of individuals, and thus make the alienations pursuant to that act effectual in conferring a good and indefeasible title. It is certainly true that that decision is not to be treated as at all binding upon the defendant in this case, otherwise than as a mere precedent, affording presuasive reason to the same conclusion. The defendant, not being a party to that case, nor to the deed made by the trustees under the act of 1852, is in no manner concluded by that decision; and, if we saw sufficient reason for coming to a different conclusion in this case, we should not hesitate so to conclude. But we perceive no such reason as would justify a different conclusion in this case; and the act of 1874, c. 390, equally with the act of 1852, c. 268, was wholly incompetent to clothe the trustees with power to make a conveyance which could have the effect of diverting vested rights of property of others than those represented by the trustees.

The plaintiffs in this case claim to represent, and to be entitled to recover, 14 undivided eighteenths,--the whole into 18 parts to be divided,--and they offered proof in support of their claim; and the defendant offered certain deeds, among them the deed to herself from the trustees, of December 23, 1882. The defendant contests the alleged right of the plaintiffs to recover upon several grounds. They will be considered in their order:

First. That the parcel of ground sued for is not sufficiently identified and located as being part of the lot of ground conveyed by the deed of Andrew Stigar to Cornthwait and Hopkins, trustees; and this question has been raised on locations made under a warrant of resurvey issued at the instance of the defendant. It appears that on the application for the warrant of resurvey the plaintiffs objected because, as they contended, a survey was...