Lannay's Lessee v. Wilson

• Decision Date: 01 June 1869
• Citation: 30 Md. 536
• Parties: LOUIS F. LANNAY and PRISCILLA LANNAY'S Lessee v. GREENBURY B. WILSON, and others.
• Court: Maryland Court of Appeals

30 Md. 536

LOUIS F. LANNAY and PRISCILLA LANNAY'S Lessee v. GREENBURY B. WILSON, and others.

Court of Appeals of Maryland

June 1, 1869

APPEAL from the Superior Court of Baltimore City.

This action was instituted in the Circuit Court for Baltimore county, on the 25th of November, 1863, and was removed to the Superior Court of Baltimore city, May 25th, 1864.

At the trial of the cause below, the defendant offered, in addition to the mortgage deeds, deed of assignment and chancery record, alluded to in the opinion of the Court, oral testimony showing that several persons, of whom John Akehurst was the last, had been in possession of the land in dispute as tenants of Luke Tiernan, one of the mortgagees who purchased the land at the trustee's sale. The will of David Williamson was then read. It was probated February 21st, 1839, and devised all his estate of every description to Maria Williamson, his wife.

The defendant then produced a writing in the form of a deed dated 15th July, 1850, from Maria Williamson and Luke T. Williamson to Greenbury B. Wilson, purporting (for a consideration of $2,000,) to convey to said Wilson, all the respective right of the grantors in law and equity or otherwise, in "the farm and improvement heretofore occupied by John Akehurst lying in Baltimore county, called Lower Pimlico, containing about two hundred and eighty acres of land, more or less, and which is now occupied by Leonard Ghast, as the tenant of the said Luke T. Williamson." The signatures of Maria Williamson and L. T. Williamson were proved, but no proof being produced that the paper had been acknowledged or recorded, it was not allowed to go in as evidence of title but (subject to legal exception,) was received to have such effect as it might be found entitled to, to show color of title.

The plaintiff proved that the trustee was appointed judge in 1816, and so continued till his death in May, 1850, when there was found, carefully preserved amongst his papers, the three promissory notes, each for $4,045.80, which had been taken for the Lannay purchase money. And the genuineness of the signatures to these notes--which were signed by David Williamson, Luke Tiernan and Kennedy Owen, was also proved. The plaintiff further produced the record of an action in Baltimore County Court, which the said Nicholas Brice, on the 25th of April, 1830, brought against David Williamson and Luke Tiernan, survivors of Kennedy Owen, for the recovery of said purchase money, declaring on said three promissory notes. Both defendants were taken, and, having appeared by attorney, pleaded non-assumpsit and limitations to the whole demand. At February Term, 1831, the death of David Williamson was suggested, and the plaintiff was non-suited.

The plaintiff's counsel then presented two prayers, setting out the facts of the case and asking that the jury, if it should find such to be the facts, be instructed to give a verdict for the plaintiff. Both were refused by the Court. The prayers which had been offered by the defendant were withdrawn, and the Court instructed the jury "that there was no evidence in the cause upon which the plaintiff could recover any part of, or interest in the land in controversy." To this ruling the plaintiff excepted, and the verdict and judgment being against him, he appealed. The remaining facts will be found sufficiently detailed in the opinion of the Court.

The cause was argued before STEWART, GRASON, MILLER, ALVEY and ROBINSON, J.

Arthur W. Machen and I. Nevett Steele, for the appellants:

Has the defendant shown any title in himself? Confessedly none. Had the deed from Maria Williamson and Luke T. Williamson to the defendant been sufficiently proved, what had the grantors to convey? But it is a concession in the case that that deed was not before the jury as an instrument capable of conveying title. It cannot be claimed that he acquired a right by adversary possession. For his possession did not begin till 1850. It is clear then that Greenbury B. Wilson himself had neither title nor such possession as may stand in lieu of title.

It is a well established rule that the title in a stranger which is to avail as a defence in ejectment, must be a clear subsisting title outstanding in another, and such a title as the stranger could recover on in ejectment against either of the contending parties. Hall vs. Gittings, 2 H. & J., 125; George's Creek Coal and Iron Co's Less. vs. Detmold, 1 Md., 234; Butler's N. P., 110; Foster's Lessee vs. Joice, 3 Wash. C. C., 501; Peck vs. Carmichael, 9 Yerg., 325; Jackson vs. Hudson, 3 John., 386; McDonald vs. Schneider, 27 Mo., 405; Dickinson's Lessee vs. Collins, 1 Swan, (Tenn.,) 516; Foust vs. Ross, 1 W. & Serg., 506; Hunter vs. Cochran, 3 Barr, 105; Hickey's Lessee vs. Stewart, 3 How., 750.

Applying this rule to the evidence produced by the defendant, can he set up an outstanding title in the heirs of Williamson, Tiernan and Owen, in consequence of the mortgage to those parties by Lannay? Greenleaf's Lessee vs. Birth, 6 Pet., 302, 312; Giles vs. Baremore, 5 Johns. Ch., 552; Wilson vs. Witherby, Ball. N. P., 110; Boyd vs. Harris, 2 Md. Ch. Dec., 210, 214; Morgan's Lessee vs. Davis, 2 H. & McH., 18; Moreau vs. Detchmendy, 18 Missouri, 522; Jackson vs. Wood, 12 Johns., 242; Moore vs. Cable, 1 Johns. Ch., 385; Paxon's Lessee vs. Paul, 3 H. & McH., 399.

The next inquiry is, can a title be set up as outstanding in the heirs of Williamson, Tiernan and Owen, under their purchase from the trustee. It is settled law in this State that a sale and ratification cannot tranfer the legal estate, and that a deed from a trustee is indispensable. Massey vs. Massey's Lessee, 4 H. & J., 141; Hickey's Lessee vs. Stewart, 3 How., 750.

It is impossible to presume a deed in face of the fact that the purchase money was never paid. The nature of the resistance made to the suit brought by the trustee upon the notes taken for the purchase money, would rather indicate that the defendants had repudiated the purchase itself as well as the obligations growing out of it. Proof of actual payment by the vendee is absolutely necessary in order to justify a presumption of a conveyance from vendor to vendee. Brady vs. Begun, 36 Barb., 538; Lawrence vs. Ball, 14 N. Y., (4 Kern.) 477; Morey vs. Farmers' Loan & Trust Co., 14 N. Y., 302; Mundell vs. Clerklee, 3 H. & J., 468; Doe vs. Butler, 2 Wend., 152, 153.

A conveyance from the trustee would have been a breach of trust on his part, and therefore cannot be presumed. Keene ex dem., Lord Byron vs. Deardon, 8 East, 248.

If a purchaser who has not paid the consideration, nor obtained a conveyance, has any legal estate, it is at most but a tenancy at will, which, in this case, would be determined by the death of Luke Tiernan, the tenant at will. Howard's Lessee vs. Carpenter, 22 Md., 25; Ball vs. Cullimore, 5 Tyrw., 753, 755; Dupper vs. Mayo, 1 Wms. Saund. 276 b.; Doe d. Stanway vs. Rock, 1 Car. & Marsh., 549, (41 E. C. L. 299.) James vs. Dean, 11 Ves., 391.

Even if the possession of the purchasers had been complete and exclusive, and had been continuously maintained, the evidence so explains it, and discloses the qualified character of the right under which it was taken, that no presumption of a legal title could be founded on it. Jackson vs. Porter, Paine C. C., 457; Colvin vs. Warford's Lessee, 20 Md., 357, 395; Owings vs. Norwood, 2 H. & J., 100; Bowie vs. O'Neale, 5 H. & J., 226, 231; Beall vs. Lynn, 6 H. & J., 351; 1 Phill. Evid., 668-71, 678; Nieto vs. Carpenter, 21 Calif., 455.

On the whole, it is manifest that if the representatives of the purchasers at the chancery sale have any right, it is of a purely equitable character, and can only be worked out in the Court of Equity. They have no legal estate--least of all such an one as Greenbury B. Wilson, a stranger to it, could set up. If they go into equity they can be required to do equity. The Court of Chancery found Lannay in possession; why should his possession be taken away except by the act of the Court? Palmer vs. Jackson, 5 Brown Parl. Cases, 281.

In this connection, it may be observed that the mortgage interest of Riddle, who had died before the filing of the bill, was not represented in the chancery suit, and no good title could be made under the decree. Vickers vs. Cowell, 1 Beav., 529; Palmer vs. Carlisle, 1 Sim. & Stu., 423; Coote on Mortgages, 500, 510, 511, (70 Law Lib'y, 575.)

The bill in question having been filed before the passage of the Act of 1833, ch. 181, the heirs of Riddle, as well as his personal representatives were necessary parties. Worthington vs. Lee, 2 Bland, 684, 685.

In any view that can possibly be taken of the whole evidence, the defendant's case involved matters of fact relating to possession, without which no defence could be made out, and upon these facts, it was necessary for the jury to pass; and the learned judge erred in assuming the functions of the jury, and peremptorily instructing them to find a general verdict for the defendant. Maltby vs. Northwestern Va. R. R. Co., 16 Md., 445; Keener vs. Kauffman, 16 Md., 296.

Benjamin F. Horwitz and Robert J. Brent, for the appellees:

It is the settled law of Maryland that the plaintiff in ejectment must recover, if at all, on the strength of his own title, and cannot do so because of the weakness of that of the defendant: he is bound to show that he had both the legal title to the land and the right of entry or possession at the time the action was instituted, and must exhibit a case negativing the idea of an outstanding title. Wilson's Lessee vs. Inloes, 11 G. & J., 358; Mitchell's Lessee vs. Mitchell, 1 Md., 52, 55; Dorsey on Ejectment, 31.

The execution of the mortgages by Lannay to Brice and Williamson and others, conveyed...