Title, Inc. v. Dubel

• Decision Date: 29 November 1939
• Docket Number: 64.
• Citation: 9 A.2d 591,177 Md. 387
• Parties: TITLE, Inc., v. DUBEL et ux.
• Court: Maryland Court of Appeals

9 A.2d 591

177 Md. 387

TITLE, Inc., v. DUBEL et ux.

No. 64.

Court of Appeals of Maryland

November 29, 1939

Appeal from Circuit Court of Baltimore City; W. Conwell Smith Judge.

Suit by William S. Dubel and wife, against Title, Incorporated, for specific performance of a contract to purchase land. Decree for plaintiffs, and defendant appeals.

Affirmed.

J. Irvin McCourt, of Baltimore, for appellant.

Louis J. Jira and Powell Vickers, both of Baltimore, for appellees.

Submitted to BOND, C.J., and OFFUTT, PARKE, SLOAN, MITCHELL, SHEHAN JOHNSON, and DELAPLAINE, JJ.

SLOAN Judge.

By agreement dated April 15, 1939, William S. Dubel and Mary R Dubel, his wife, agreed to sell to Title Inc., a Maryland corporation, and it agreed to buy a tract of land situate in Havre de Grace, Harford County, for the sum of $6,000 on account of which the vendee paid $500, and agreed to pay the balance in thirty days. The parcel of land so agreed to be bought and sold is part of an addition laid out many years ago, known as Hopper's Addition to the city of Havre de Grace, and the part covered by the agreement in this case is a rectangular lot, bounded by Ohio, Superior, Alleghany and Erie Streets. The plat filed as an exhibit by the defendant shows, and it is agreed to be true, that the lot is intersected by two streets, Columbia Street, 100 feet wide running north and south, and Huron Street, 50 feet wide, running east and west, and the land agreed to be sold includes the bed of these intersecting streets. The whole property was divided into squares of fourteen lots each, of which there are four squares here involved, Square 111, comprising Lots Nos. 614 to 627, both inclusive and Square 134, comprising lots Nos. 473 to 486, bounded by Ohio, Superior, Alleghany and Huron Streets are on the northerly side of the tract, Square 112, comprising Lots 600 to 613, and Square 135, comprising Lots Nos. 459 to 472, bounded by Ohio, Huron, Alleghany and Erie Streets are on the southerly side.

The vendee declined to pay the balance of the purchase money and the vendors thereupon filed a bill against it for the specific performance of the contract. The decree being for the plaintiffs, the defendant appeals.

The reason assigned by the defendant, in its answer, for its failure to comply with its contract, is that the plaintiffs have no title to the bed of the streets, Columbia and Huron intersecting the property, and that they do not have a good and merchantable title to Squares 112 and 135.

No oral evidence was taken, the case having been submitted upon bill, answer, exhibits and agreed statement of facts.

With respect to the intersecting streets, it is agreed that they '* * * are paper streets only, the same never having been actually or physically laid out or opened. That the public has never used the same, and said streets have never been accepted by any authority for public use, for public highways or as dedicated streets', which are grown up in grass, weeds, and scrub trees, and have been in that condition for more than fifty years. With this stipulation, then they are not now and never were public streets. It is possible for a street to become public without acceptance by any public authority, but the facts agreed to do not show any kind of acceptance or user by anybody. North Beach v. North Chesapeake Beach Land & Imp. Co., 172 Md. 101, 116, 191 A. 71; United Finance Corp. v. Royal Realty Corporation, 172 Md. 138, 148, 191 A. 81; Suburban Garden Farm Homes Corp. v. Adams, 171 Md. 212, 222, 188 A. 808.

The question then might arise as to who has the legal title to the fee in the platted streets. The deed from the owner who originally divided the property is not in the record. The oldest deed mentioned in the stipulation was made in 1867, and none of the deeds set out in the record have any reference to the title in the streets, until after the death of Augustus F. Brown. The Act of 1892, ch. 684, Code, Art. 21, sec. 98, provides that when any street or highway shall be one or more of the lines thereof, the title shall run to the center of the street or highway, unless the devisor, donor or grantor shall expressly reserve title in himself. This statute, however, does not affect a conveyance made prior to its passage. Hunt v. Brown, 75 Md. 481, 23 A. 1029; Rieman v. Baltimore Belt R. Co., 81 Md. 68, 79, 31 A. 444. From the view we take of the whole case as presented by the record, it is unnecessary to further discuss this point.

The two northerly squares Nos. 111 and 134 were conveyed to Augustus F. Brown by Robert S. Rodgers, Administrator of Jerusha Dennison by deed of February 13, 1867, and recorded in Harford County, and the stipulation says '* * * that about the same time he entered into possession of the lots adjoining and hereinbefore mentioned as Lots Nos. 459 to 472 (Square 135) both inclusive, and Lots 600 to 613, both inclusive (Square 112), and held title and exclusive possession of all of said lots, including the beds of Columbia and Huron Streets, to the time of his death in 1911', forty-eight years. Augustus F. Brown died a widower, in 1911, leaving a will whereby by the eighth item he devised to his daughter, Virginia Lee Dubel, named in the will, Jennie Dubel, the 28 lots of ground conveyed to him by Robert S. Rodgers, Administrator. He did not devise the other 28 lots of which he had been in possession for 48 years to any one. The will did not have a residuary clause, so that whatever title he had descended to his five children and heirs at law, Thomas J. Brown, J. Wheeler...