Wagner v. James A. Bealmear & Son Co.

• Decision Date: 16 January 1920
• Docket Number: 87.
• Citation: 109 A. 466,135 Md. 690
• Parties: WAGNER v. JAMES A. BEALMEAR & SON CO.
• Court: Maryland Court of Appeals

109 A. 466

135 Md. 690

WAGNER v. JAMES A. BEALMEAR & SON CO.

No. 87.

Court of Appeals of Maryland

January 16, 1920

Appeal from Circuit Court, Baltimore City; James P. Gorter, Judge.

"To be officially reported."

Bill by William Wagner against the James A. Bealmear & Son Company to which a demurrer was sustained, and from a decree dismissing the bill the plaintiff appeals. Decree reversed and cause remanded.

Argued before BOYD, C.J., and BURKE, THOMAS, PATTISON, URNER STOCKBRIDGE, and ADKINS, JJ.

John Holt Richardson and George Washington Williams, both of Baltimore, for appellant.

Edward M. Hammond, of Baltimore, for appellee.

STOCKBRIDGE J.

William Wagner filed the bill of complaint in this case against the James A. Bealmear & Son Company, a body corporate, for the specific performance of a contract of sale of eleven houses on the Philadelphia road in fee, and one house on Streeper street, leasehold, as enumerated in the receipt given by Mr Wagner to the defendant on the 25th of August, 1919. To the bill so filed the defendant demurred, and the ground of the demurrer seems to have been the claim on the part of the defendant company that Mr. Wagner could not give a merchantable title to the property. There is apparently no disagreement between the solicitors of the respective parties upon any question of fact, save possibly one, and that is a mixed question of law and fact.

From the undisputed statements of counsel there was passed in June, 1914, an ordinance of the mayor and city council of Baltimore for the opening of Potomac street, from Fayette street to Philadelphia avenue, and upon a portion of the bed of that street the plaintiff had erected a number of dwellings, five of which, out of the total number of eleven, were within the line of the proposed street, as was also the leasehold lot of ground before mentioned. This condemnation proceeding was advanced in the regular routine of such proceedings up to the point of the final award made by the commissioners for opening streets, and in the case of the awards for two lots an appeal was taken from the award to the Baltimore city court, which terminated in 1915. Nothing was thereafter done by the mayor and city council of Baltimore toward the consummation of the proceedings, but they have been allowed to lie dormant until the present time.

In the view of the appellee the condemnation begun constitutes such an incumbrance upon the title to the lots in question as to render the title to these houses unmerchantable.

In the case of Gill v. Wells, 59 Md. 492, while that was not a condemnation case, but came up to this court upon a bill for specific performance of a contract for sale, it was held that the vendee of a piece of property is not bound to take an estate fettered by incumbrances by which he may be subjected to litigation to procure a title; that the vendee has a right to demand and to have a title which shall enable him not only to hold his land but to hold it in peace, and if he wishes to sell it to be reasonably sure that no flaw or doubt will come up to disturb its marketable value. The rule so laid down has been since affirmed in the Sharp Street Station v. Rother, 83 Md. 492, 34 A. 843 and Abell v. Insurance Co., 93 Md. 596, 49 A. 334.

There are numerous decisions in this state to the effect that under our Constitution no title to the property condemned passes to the condemning parties until there has been the payment or a tender of the damages fixed for the taking of the property, and as in this case there is no pretense that the property in question has ever been paid for or tender made of the value fixed, there can, of course, be no question that no title whatever has passed to the mayor and city council.

Can the mayor and city council now, at the close of 1919, proceed to open Potomac street along the lines set forth in...