Stewart v. May

• Decision Date: 01 June 1909
• Citation: 111 Md. 162,73 A. 460
• Parties: STEWART et al. v. MAY.
• Court: Maryland Court of Appeals

73 A. 460

111 Md. 162

STEWART et al.

v. MAY.

Court of Appeals of Maryland.

June 1, 1909.

Appeal from Circuit Court of Baltimore City; Charles W. Henisler, Judge.

Action by William May against Hyland P. Stewart and others. From the decree defendants appeal. Affirmed.

Argued before BOYD, C. J., and BRISCOE, SCHMUCKER, WORTHINGTON, THOMAS, and HENRY, JJ.

Charles F. Harley, for appellants.

J. Bannister Hall and Francis K. Carey, for appellee.

THOMAS, J. It appears from the bill of complaint in this case, and the exhibits filed therewith, that Maria E. Weise, of Baltimore City, died in 1881, leaving a last will and testament by which she devised to Thomas Hill "all that piece or parcel of ground situate at the southeast corner of Liberty and Lexington streets in the city of Baltimore aforesaid, together with the improvements and appurtenances" in trust for her aunt, Maria M. Johnson, during her natural life, and after her death to her cousin, William Worthington Johnson, his heirs and assigns, "but in case he died without leaving a child or descendants of a child living at the time of his death, then to her cousin, Emma Maria C. Johnson, absolutely." By the next item of her will she devised her "house and lot of ground and premises on Lexington street adjoining the property described in the aforegoing item of" her will to Thomas Hill in trust for her cousin, Emma Maria C. Johnson, for life, and after her death to her children, but in case she died "without leaving a child or children or descendants of a child living at the time of her decease" "then to" her "cousin, William Worthington Johnson, absolutely." The following copy of the plat filed with the bill shows the location of these two lots The lot on the corner of Lexington and Liberty streets is the one now owned by the appellant, and the adjoining lot is now owned by the appellee:

The title to the lot on the corner of Lexington and Liberty streets, mentioned in the first item of Maria E. Weise's will, and now owned by appellant, was acquired by Mary De Charms Garrison as only heir at law of Maria M. Johnson, who was the sole devisee under the will of Emma Maria C. Johnson, and in 1893 she and her husband brought suit in ejectment to recover the adjoining lot, now owned by the appellee, claiming title to it also as the heir at law of Maria M. Johnson, devisee under the will of Emma Maria C. Johnson, who it was claimed acquired it as only heir at law of William Worthington Johnson. In the declaration filed in that case the lot was described as follows: "Beginning for the same on the southernmost side of Lexington street at the distance of 19 feet and 8 inches southeasterly from the southeast corner of Lexington and Liberty streets, and which place of beginning is designed to be in the center of the division wall between the house erected on the lot now being described and the house next adjoining on the west, and running thence southeasterly, bounding on Lexington street, 20 feet and 3 inches to the center of the wall between the house erected on the lot now being described and the house next adjoining on the east; thence southwesterly through the center of said wall, 52 feet more or less, to the north end wall of the house next adjoining on the south; thence northwesterly, along said wall 40 feet to the easternmost side of Liberty street; thence northeasterly, bounding on Liberty street, 3 feet to the southwest corner of the house adjoining on the north; thence southeasterly along the south end wall of said house, 18 feet and 6 inches, until it intersects a line drawn southwesterly through the center of the division wall first above mentioned; thence northeasterly through the center of said wall 49 feet, more or less, to the place of beginning." That suit resulted in a judgment in favor of the defendant in that case, and on appeal the judgment was affirmed in the case of Garrison v. Hill, 79 Md. 75, 28 Atl. 1062, 47 Am. St. Rep. 363, when the court held that, as William Worthington Johnson died intestate before Emma Maria C. Johnson, the property passed to those of his heirs "alive at the happening of the contingency, viz., the death of Emma M. C. Johnson, unmarried and without issue."

Appellee claims title to this lot under a deed from Thomas Ireland Elliott and wife and Philip H. Hoffman and wife, who acquired title as follows: Thomas Ireland Elliott by deed from Eliza P. Johnson, only heir at law of William Worthington Johnson, and Luther Johnson, her husband; Philip H. Hoffman by deed from Belle Clare Sprague and others, devisees of Eliza P. Johnson—in each of which deeds appellee's lot is described as it is in the declaration in the case of Garrison v. Hill. In 1893 Mary De Charms Garrison and husband conveyed to the appellant "one undivided half part" of all their interest in the respective estates of Maria E. Weise, Maria M. Johnson, and Emma M. C. Johnson, and in 1894, by a confirmatory deed, conveyed to the appellant an undivided one-half interest in the lot on the corner of Lexington and Liberty streets, and described in said deed as follows: "Beginning for the same at the southeast corner of Lexington and Liberty streets and running thence southeasterly, bounding on Lexington street nineteen feet and eight inches to the center of the division wall between the house on the lot now being described and the house next adjoining on the east, thence southwesterly bounding on the center of said wall forty-nine feet to the end thereof, thence northwesterly along the south end wall of said house on the north side of an alley three feet wide, eighteen feet and six inches to the easternmost side of Liberty street, thence northeasterly bounding on Liberty street forty-nine feet, more or less, to the place of beginning." In this deed the second line of appellant's lot follows the center of the division wall between his lot and the lot of the appellee 49 feet to the end of said division wall, and the third line follows the south end wall of the building on appellant's lot to Liberty street, and corresponds with the fifth and sixth end lines of the appellee's lot, leaving what is called in this deed an "alley," three feet wide, between the lot of the appellant and the property on the south, but which is included in the ejectment suit and in appellee's deed as part of his lot.

In 1903 the then owners of appellee's lot leased it to Sigmund Salomon, trading as S. Salomon & Co., for the term of five years, accounting from the 1st day of February, 1904, which lease, with the consent of the owners of the lot, was subsequently assigned to Max Philipsborn and Gerson Nordlinger, trading as M. Philipsborn & Co., who have continued to pay rent to the appellee since he acquired the lot. Prior to the execution of the lease to Salomon, which was a renewal of a previous lease, he leased the property south of appellee's lot and also the property of the appellant, and with the consent of the owners of the three lots so changed the improvements thereon as to make them practically one building. On the 10th of October, 1907, the appellant purchased from Mrs. Garrison and her husband the remaining undivided one-half interest in the corner lot, and on the same day executed to Mrs. Garrison a mortgage on the property to secure the payment of $20,000, in which deed and mortgage the lines of the lot, instead of running to the end of the division wall between appellant's and appellee's lot, 49 feet, and thence along the south wall of appellant's building to Liberty street, as in the deed of 1894, are made to run "52 feet, more or less, to the northern wall of the property adjoining on the south as now situate; thence northwesterly along the north side of said wall 18 feet, 6 inches, more or less, to Liberty street," so as to include in appellant's lot that portion of appellee's lot fronting 3 feet on Liberty street, between the south wall of appellant's building as it originally stood and the property on the south.

The bill further states: That the appellee is informed and believes that Philipsborn and Nordlinger have renewed the leases from the owners of the adjoining properties; that the appellant is claiming title to that part of appellee's lot included in appellant's deed of 1907; that Philipsborn and Nordlinger are desirous of renewing the lease for appellee's lot; but that inasmuch as the appellant is claiming title to a part of appellee's lot, and has color of title thereto under said deed, he refused to renew the lease to them unless the lease contains a full description of his property; that Philipsborn and Nordlinger, acting under the advice of appellant, their counsel, have refused to execute a lease containing a full description of appellee's property; and that the claims of the appellant and his advice to appellee's tenants cast a cloud on the appellee's title to that part of his lot included in appellee's deed of 1907, to the great damage of the appellee. The prayer of the bill is that the appellee's title to that part of his lot included in the appellant's deed may be quieted, and that the cloud cast thereon by said deed and the claims and actions of the appellant may be removed, and that the mortgage from the appellant to Mary De Charms Garrison may be declared void as to the part of the appellant's lot included therein, and for general relief. The defendants, Hyland P. Stewart, Esq., and Mary De Charms Garrison, mortgagee,...