Lurman v. Hubner

• Decision Date: 04 February 1892
• Citation: 23 A. 646,75 Md. 268
• Parties: LURMAN ET AL. v. HUBNER.
• Court: Maryland Court of Appeals

23 A. 646

75 Md. 268

LURMAN ET AL. v. HUBNER.

Court of Appeals of Maryland

February 4, 1892

Appeal from circuit court, Baltimore county, in equity.

Proceedings for partition. Gustav W. Lurman and John H. Fowler were appointed trustees to make sale, and sold part of the land to John Hubner, who filed exceptions to the ratification of the sale on the ground that the title was defective. From an order sustaining the exceptions the trustees appeal. Appeal dismissed.

IRVING, ROBINSON, BRYAN, and MCSHERRY, JJ.

John Stewart, David Stewart, and D. G McIntosh, for appellants.

James S. Caldwell and John P. Brown, for appellee.

BRYAN J.

The appellants were appointed by a decree of a court of equity to make sale of the real estate of Robert Fowler, deceased, for the purpose of partition among his heirs. Two certain lots of ground were sold to John Hubner, and he filed exceptions to the ratification of the sale, alleging that the title was defective. It appears that Robert R. Richardson died in the year 1840, seised and possessed in fee of a tract of land which includes the lots in question. He devised the land to his son Robert R. Richardson, Jr., with a limitation over to his son Charles, in case Robert should die without lawful issue. Robert, the son, devised the land to Nathan H. Ware and died in the year 1845, without leaving issue. After the death of Robert, the son, two creditors' bills were filed for the sale of his real estate for the payment of his debts, on the allegation of the insufficiency of his personal assets. In each of these bills it was alleged that Robert, the son, died seised and possessed of this land, and other real estate. No steps have been taken in the prosecution of either of these suits since 1851, and it is shown, by an agreement of counsel, that since the appeal was taken in this case they have been dismissed. Charles Richardson, in the year 1856, by deed duly recorded, conveyed this land to William Leach. No title is shown in Charles Richardson, except such as arose under his father's will by the limitation, in the event of the death of Robert without lawful issue. This, being after an indefinite failure of issue, was clearly void; but it would give color of title. We learn nothing from the record with respect to possession by Charles, except so far as it may be inferred from his deed to Leach, and the circumstances subsequent to it. It is very certain that Leach claimed title under that deed, and it is sufficiently shown that he took possession under it, and that the greater portion of it was fenced and cultivated. The act of 1852 dispensed with the necessity of proving possession by actual inclosure. Before the passage of that act the law was declared, in Hoye v. Swan's Lessee, 5 Md. 248, as follows: " First, where one enters not under any deed or written title, but merely assuming the possession with claim of right, the ouster he effects extends no further than he occupies, cultivates, incloses, or otherwise excludes the owner from. Second, but if one enters under color of title, by deed or other written document, and occupies and improves the.land, he acquires in law actual possession, to the extent of the boundaries contained in the writing; and this though the title conveyed to him by the deed be good for nothing." William Leach, being thus in possession of the land, in 1861 conveyed it to William Leach, Jr., by deed duly recorded. From this time there is a regular chain of conveyances down to March 23, 1873, when the property was conveyed to Robert Fowler. He died in 1874, intestate, seised and possessed of the land, and his title descended to his heirs at law. None of the deeds appear in the record; but there is an agreement of counsel that they were executed and recorded. If we knew the recitals of the deed from Charles Richardson to Leach, we might probably have more satisfactory information in regard to his possession. But disregarding everything which occurred previously to this deed, it is impossible that we should fail to see that Leach's deed gave him color of title, and that his entry under it invested him with adverse possession of the whole tract. In Hoye v. Swan's Lessee, at page 248, this court, speaking of the character of possession under color of title, says: "It appears to be immaterial whether the title be valid or not, provided the entry and claim be bona fide under that title;" and, on page 250, the court quotes with approbation the following: "Entry under claim of title is generally sufficient to constitute an adverse possession, and it is not material whether the title be valid or not. But if claim is not founded on a deed or writing, the possession is limited to actual occupancy, and substantial inclosures, definite and notorious." The title which Leach thus acquired was transmitted, with all its advantages through a chain of conveyances, to Robert Fowler, in 1873; the title conveyed being sufficient to draw to it constructive possession of the whole tract, even without an entry upon it by the grantees subsequent to the elder Leach. From the time of the deed by Charles Richardson to the time of the sale by the trustees to Hubner, in November, 1890, more than 34 years had elapsed of continuous adverse possession...