Taussig v. Van Deusen

• Decision Date: 14 June 1944
• Docket Number: 31.
• Citation: 37 A.2d 915,183 Md. 436
• Parties: TAUSSIG et ux. v. VAN DEUSEN et ux.
• Court: Maryland Court of Appeals

37 A.2d 915

183 Md. 436

TAUSSIG et ux. v. VAN DEUSEN et ux.

No. 31.

Court of Appeals of Maryland

June 14, 1944

Appeal from Circuit Court, Anne Arundel County; James Clark, Judge.

Bill by Everett K. Van Deusen and wife against Jerome L. Taussig and wife for a specific performance of a contract to purchase realty. From a decree ordering specific performance defendants appeal.

Decree affirmed.

John S. Stanley, J. Sarsfield Sweeny, and Hershey, Donaldson Williams & Stanley, all of Baltimore, for appellants.

G. W S. Musgrave and James E. Steuart, both of Baltimore, for appellees.

Before MARBURY, C.J., and DELAPLAINE, COLLINS, GRASON, MELVIN, BAILEY, and CAPPER, JJ.

COLLINS Judge.

On April 21, 1942, Jerome L. Taussig and Hedwig T. Taussig, his wife, entered into a written agreement with Everett K. Van Deusen and Dorothy Van Deusen, his wife, to purchase a parcel of land containing 20 acres together with improvements thereon situated in Anne Arundel County for the price of $5,550 of which $500 was paid on the execution of the contract, and the balance was to be paid on or before the 1st day of June, 1942. The purchasers refused to pay the balance of the purchase price, claiming that the sellers were unable to convey to them a good and unencumbered estate in fee simple. Whereupon Everett K. Van Deusen and Dorothy Van Deusen, appellees here, filed a bill for specific performance of the contract against Jerome L. Taussig and Hedwig T. Taussig, appellants here, in the Circuit Court for Anne Arundel County. After answer and stipulation were filed and testimony submitted, the Chancellor, by decree dated March 22, 1944, ordered specific performance of the contract from which decree the appellants appeal to this Court.

It was stipulated and agreed between the parties that the only part of the tract agreed to be sold to which they question the title is two-thirds of one lot, No. 88. Appellants also object to taking title for the reason that certain streets or avenues were laid out through the tract of land about the year 1871 by a plat recorded among the Land Records of Anne Arundel County and to a right of way granted in January, 1934, to the Consolidated Gas, Electric Light & Power Company for the purpose of enabling that company to maintain an electric line over certain property. In this case we are therefore concerned only with the title to two-thirds of lot No. 88, the avenues running through the property, and the right of way granted for an electric line.

In 1871 John Hubner conveyed certain lands, of which the tract in question is a part, to Thomas J. Simpson who later laid out three avenues through the property and sold a number of lots including lot No. 88. The record title to this lot No. 88 appears to be defective. After numerous conveyances of the tract of which the land in question is a part, in 1906 it was sold to Herman Winter who had the property surveyed and a description written therefrom describing the tract by metes, bounds, courses and distances, which description was incorporated in the deed and which contained the land covered by the contract of sale now before this Court. The appellants admit that Herman Winter went into possession of the entire tract, including the lot in dispute, under the deed given him in 1906 under color of title. On November 24, 1938, Herman Winter and wife conveyed 30.4 acres of land to the appellees herein of which the tract covered by the contract of sale is a part.

The question before this Court is whether the appellees have acquired a title that can be safely accepted by the appellants.

Herman Winter and Mary Winter, his wife, testified that when they purchased the property in 1906, they had it surveyed, went into possession of it, caused the same to be fenced in and kept fenced, cultivated the property as a farm and have ever since resided upon some part of it; that in 1938 they conveyed 30.4 acres to the appellees who took possession and resided upon it until June, 1942, when the agreement of sale in this case was executed. They further stated that at no time since they entered into possession of said tract has any one ever laid claim to ownership of never heard of the possibility of such a claim until this case arose. They further say that not at any time during said period have any avenues, streets or highways been opened or used upon said tract of land, but the whole thereof has been continuously fenced in by them and the Van Deusens and used solely as a farm. They say that they continuously paid the taxes on the property in dispute from 1906 to 1938 and upon the remaining portion thereof which they still own from 1938 to 1943. During the entire period from 1906 to November, 1938, they held uninterrupted, continuous, undisputed and notorious possession of said land under contract, and no one has at any time claimed ownership of any lots or the right to use any avenues, streets or highways over or upon the said land.

Dorothy Van Deusen, granddaughter of Herman Winter, and her husband, appellees, say that they have occupied the land of which the tract in question is a part from November, 1938, until June, 1942, when the tract under contract was sold to the appellants who went into immediate possession and still occupy it. Mrs. Van Deusen says that she has been familiar with the property all of her life and knows that her grandfather has continuously used it as a farm and kept it fenced. They say that at no time have they ever heard of any claimant to any lot or lots thereon or the right to use any avenues, streets or highways nor have any such ever existed.

Three other witnesses substantiate the testimony of the Winters and the Van Deusens.

Appellants admit that the testimony of the witnesses for the appellees indicates that all of the property was actually enclosed and used by the appellees. No testimony was offered by the appellants.

During the period from 1906 to the date of testimony in 1943, no one having made any claim for any part of the land and no recognized right having been in any one except the Winters and Van Deusens, this Court finds that, under the testimony, adverse possession sufficient to support a title in the appellees exists. Stump v. Henry, 6 Md. 201, 61 Am.Dec. 300; Erdman v. Corse, 87 Md. 506, 40 A. 107; Sowers v. Keedy, 135 Md. 448, 109 A. 143; Peper v. Traeger, 152 Md. 174, 136 A. 537; Novak Realty Co. v. Trustees of Orphans' Home, 153 Md. 390, 138 A. 250; Parks v. Welch, 174 Md. 548, 199 A. 506.

The avenues and streets laid down on the plat were never actually laid out on the ground, and they have never been used nor has any one claimed the right to use them nor has there been acceptance by the public or by any public authority. The filing of the plat was nothing more than an offer which does not become a dedication until accepted. Beale v. Takoma Park, 130 Md. 297, 100 A. 379; Mullan v Hochman, 157 Md. 213, 145 A. 554; North Beach v. Land &...