Rosenthal v. Donnelly

• Decision Date: 07 May 1915
• Docket Number: 55.
• Citation: 94 A. 1030,126 Md. 147
• Parties: ROSENTHAL v. DONNELLY.
• Court: Maryland Court of Appeals

94 A. 1030

126 Md. 147

ROSENTHAL v. DONNELLY.

No. 55.

Court of Appeals of Maryland

May 7, 1915

Appeal from Circuit Court No. 2 of Baltimore City; James M. Ambler Judge.

"To be officially reported."

Suit by William J. Donnelly against Samuel Rosenthal. From an order overruling a demurrer to the bill, defendant appeals. Order affirmed, and case remanded.

Jacob J. H. Mitnick, of Baltimore (Louis Mitnick, of Baltimore, on the brief), for appellant. Richard Bernard and Alfred S Niles, both of Baltimore (Richard Bernard & Son, of Baltimore, on the brief), for appellee.

PATTISON J.

This is an appeal from an order overruling a demurrer to the bill of the appellee filed against the appellant. The bill as originally filed alleges, in substance, that the plaintiff is "seized and possessed" of a certain lot of ground in the city of Baltimore, situated on the north side of Water street. The lot was acquired by deed from George R. Gaither trustee, dated September 10, 1904, a copy of which is filed with the bill and made part of it. In this deed the land so acquired by the plaintiff is fully described by metes and bounds, courses and distances.

On the 12th day of March, 1914, the plaintiff, by written contract or agreement made with one Charles E. Falconer, agreed to sell and sold to him, at and for the sum of $6,500, the aforesaid lot of land, and upon the payment of the purchase money therefor a deed was to be executed by the plaintiff conveying to the said Falconer a good and merchantable title therein. The contract of sale was likewise filed with the bill and made a part of it. Upon an examination of the title by the Title Guarantee & Trust Company, there was discovered upon the records a deed from one James W. Harvey, substituted trustee, to the defendant, dated January 19, 1914, by which the said Harvey, trustee, attempted to convey unto the defendant two lots or parcels of land. The bill alleges that in his attempt to convey the secondly described parcel of land, which lies immediately north of the plaintiff's lot, he included within the lines of the land so conveyed a strip of land belonging to the plaintiff two feet in width, extending across the entire rear or northern end of said lot of the plaintiff, and also included two feet of an alley three feet in width over which the plaintiff has an easement from his lot to Custom House avenue. The lot of the plaintiff was purchased by him soon after the great fire of 1904, and the bill alleges that said lot has been in the possession of the plaintiff ever since, although no buildings have been erected or improvements made thereon.

It is further alleged in the bill that the defendant has never physically trespassed or occupied any part of said lot or alley. The bill also alleges that the placing on record of said deed was unwarranted and inequitable, and has created a cloud on the title of the plaintiff. The prayer of the bill then asked that the title of the plaintiff to the aforesaid strip of land embraced in the deed to the defendant, together with his easement over said alley three feet in width, be quieted, and the cloud cast thereon by recording said deed from James W. Harvey, substituted trustee, to the said defendant, be removed by a decree of the court.

A demurrer to this bill was sustained, with leave to the plaintiff to file an amended bill. Thereafter the Savings Bank of Baltimore, to whom a mortgage had been executed by the defendant upon the lands so conveyed to him by Harvey, trustee, including the aforesaid strip of land, was, upon the petition of the plaintiff, made a party defendant to the bill, and thereafter the appellant filed his amended bill.

The amended bill adopts the allegations of the original bill, and further alleges that the defendant, before accepting the said deed from Harvey, substituted trustee, a copy of which deed is filed as Exhibit No. 3 with the original bill, and therefore is to be considered a part of the amended bill, caused to be made a survey of the land, and--

"upon the strength of the measurements and locations disclosed by said survey, objected to the title of the said James W. Harvey, substituted trustee, to the secondly described lot in said Exhibit No. 3, and forced said trustee and his counsel to make an abatement of a part of the purchase price, the amount of which abatement was paid to the said Samuel Rosenthal [the defendant] by the said trustee or his counsel. Yet, notwithstanding his said objection to the secondly described lot in said deed and the abatement of part of said purchase money, the said Rosenthal placed on record, among the land records of Baltimore city, said deed, knowing that a large part of the secondly described lot therein did not belong to James W. Harvey, trustee, but belonged to your orator and others."

The bill then alleges that the secondly described lot of land in the aforesaid deed, including the strip of land belonging to the plaintiff, is embraced in the mortgage from the defendant to the Savings Bank of Baltimore, although it is not separately described therein, and a copy of which said mortgage is filed as an exhibit with the bill. It further alleges in relation thereto that:

"The officers of the Title Guarantee & Trust Company employed by the said Savings Bank of Baltimore to examine the title of the defendant to the property mentioned in said mortgage were fully conversant with the measurements and locations ascertained by said survey and refused to pass or insure the said Samuel Resenthal's title to said secondly described lot in said deed, Plaintiff's Exhibit No. 3. Notwithstanding that, the said Savings Bank of Baltimore placed upon record said mortgage."

With the amended bill is filed, as an exhibit, a plat showing the location of the plaintiff's property and the property contiguous thereto. This plat we will ask the reporter to insert in the report of this case.

RPT.CC.1915026070.00010 The bill then alleges that the plaintiff's lot and the alley three feet in width, mentioned in the deed to him from George R. Gaither, trustee, are bounded on the north by the dividing line between lot 66 and lot 67 of Baltimore town as shown and designated upon the aforesaid plat, this dividing line being also the southernmost line of the land belonging to the said James W. Harvey, substituted trustee, "south of which he never professed to own any land whatever."

As alleged in the bill, the southern wall of the building erected on the first described lot in the deed from Harvey trustee, to the defendant is north of the aforesaid dividing line between lots Nos. 66 and 67, and is, as shown by the plat, upon the line starting on Gay street at the letter "P," and extending in a straight line westerly in the direction of the beginning point of the secondly described lot, ending at a point about north of letter "D" on said plat. This line, it will be seen by reference to the plat, is also about three feet north of the northernmost line of the plaintiff's lot. And so it was, as the bill alleges, that when--

"the draftsman of the deed, in running the second, third, and fourth lines of the said secondly described lot, wrote, 'thence southerly, along the lot of the ground firstly described [that is, from M to Q, as shown by the plat to be three feet in length], and continuing the same course five feet [thus crossing the aforesaid divisional line between lots Nos. 66 and 67 and the northernmost line of the plaintiff's line when extended], thence westerly, parallel with the first line of the lot now being described, ninety feet to Custom House avenue, and thence northerly to the place of beginning,' [he] well knew that he inclosed not only land belonging to James W. Harvey, trustee, but also land belonging to your orator and others."

It is also alleged in the bill that the locations and measurements shown on the plat filed were obtained from the surveyors of the Title Guarantee & Trust Company, and that such locations and measurements were used by it in endeavoring to induce the said Rosenthal, the defendant, "to quitclaim" to the strip of land belonging to the plaintiff, which is said to be included within the aforesaid deed....