Wathen v. Brown

• Citation: 429 A.2d 292,48 Md.App. 655
• Decision Date: 12 May 1981
• Docket Number: No. 1157,1157
• Parties: Norma D. WATHEN v. Helen H. BROWN.
• Court: Court of Special Appeals of Maryland

Page 655

48 Md.App. 655

429 A.2d 292

Norma D. WATHEN v. Helen H. BROWN.

No. 1157.

Court of Special Appeals of Maryland.

May 12, 1981.

C. Clarke Raley, Leonardtown, for appellant.

No brief or appearance for appellee.

Argued before MORTON, LOWE and COUCH, JJ.

LOWE, Judge.

Appellee is the record title holder to a parcel of land and right of way in St. Mary's County. Alleging that appellant claimed ownership by adverse possession, appellee filed a Bill of Complaint to Quiet Title in the Circuit Court for St. Mary's County. Appellant answered, admitting her claim of ownership by adverse possession but denying all else save record title in appellee which was neither admitted nor denied.

Appellant tells us that appellee "elected to vest her claim of ownership and right of disposition on proof that she had paper title. Her proof consisted of the introduction into evidence of her deed ... and of a plat" which set out the parcel and the right of way.

"At the close of Appellee's case, Appellant moved to dismiss upon the ground that Appellee had not alleged or proved the conditions for maintenance of a cause of action and a right of relief pursuant to Real Property Article, Section 14-108. The court denied the motion. The appellant declined to go forward.

The lower court declared that Appellee ... was the owner of the land and had the right to dispose of the property in dispute...."

Appellant's appeal, like her case below, rests upon two questions which may be answered as one:

"I. Is possession, actual or constructive, required to be proven by the plaintiff to establish a cause of action and a right to relief pursuant to Real Property Article, Section 14-108?

II. Did the evidence in this case permit the lower court to conclude that a cause of action and a right to relief pursuant to Real Property Article, Section 14-108 had been established by Appellee?"

Section 14-108 is one of the "Miscellaneous Rules" set forth in Title 14 of the recent recodification of the Real Property Laws. It was originally enacted in 1955 as a statutory section for the equitable remedy of quieting title to real estate, by authorizing courts of equity to do substantially what they had been doing prior to its enactment. ¹ Cherry v. Siegert, 215 Md. 81, 136 A.2d 754 (1957).

" § 14-108. Quieting title.

(a) Conditions. Any person in actual peaceable possession of property, or, if the property is vacant and unoccupied, in constructive and peaceable possession of it, either under color of title or claim by right by reason of his or his predecessor's adverse possession for the statutory period, when his title to the property is denied or disputed, or when any other person claims, of record or otherwise to own the property, or any part of it, or to hold any lien encumbrance on it, regardless of whether or not the hostile outstanding claim is being actively asserted, and if an action at law or proceeding in equity is not pending to enforce or test the validity of the title, lien, encumbrance, or other adverse claim, the person may maintain a suit in equity in the county where the property lies to quiet or remove any cloud from the title, or determine any adverse claim.

(b) Proceeding. The proceeding shall be deemed in rem or quasi in rem so long as the only relief sought is a decree that the plaintiff has absolute ownership and the right of disposition of the property, and an injunction against the assertion by the person named as the party defendant, of his claim by any action at law or otherwise. Any person who appears of record, or claims to have a hostile outstanding right, shall be made a defendant in the proceedings."

Appellant argues that this statute established a burden of proving actual or constructive possession and that mere evidence of record title (which she concedes in appellee) is insufficient to constitute constructive possession.

The object of a bill to quiet title is to protect the owner of legal title "from being disturbed in his possession and from being harassed by suits in regard to his title by persons setting up unjust and illegal pretensions...." Textor v. Shipley, 77 Md. 473, 475, 26 A. 1019 (1893). The statutory requirement of "possession" is that which originally provided equity with jurisdiction; otherwise the complainant would have had to resort to law, having an adequate legal remedy there.

"In such cases, one being in possession, he cannot have a remedy at law and is obliged therefore to seek the aid of a Court of Equity. If, however, the possession is in another person, his remedy is by action of ejectment, and there is no ground for the interposition of a Court of Equity, and for the reason that he has an adequate remedy at law." Id.

The alternative to "actual" possession (i. e., title plus vacancy) was early recognized in the case of Baumgardner v. Fowler, 82 Md. 631, 640, 34 A. 537 (1896), which noted that:

"... Courts have held that where a plaintiff has the legal title to lands that are wild, uncultivated and unoccupied, he may invoke the aid of a Court of Equity to remove a cloud upon his title, although he has no other than constructive possession resulting from legal ownership."

In Baumgardner this conclusion was coupled with, and apparently predicated upon, the fact that there was no proof that the adverse claimants under a tax sale had taken possession of the lands in dispute under the tax sale deed. Consequently, the plaintiffs could not have sued in ejectment to recover the property and thus decide ownership. Id. at 640-41, 34 A. 537.

Although these cases arose prior to the statute, the statute was seemingly based upon them, Cherry, supra 215 Md. at 85, 136 A.2d 754, and when enacted, it did not dispense with the necessity of showing possession, actual or constructive. Thomas v Hardisty, 217 Md. 523, 143 A.2d 618 (1958); Cherry, supra. Presumably then, if actual possession is not alleged in the Bill of Complaint although title is claimed, the bill is demurrable unless it is alleged that the lands are vacant and unoccupied. Barnes v. Webster, 220 Md. 473, 475-76, 154 A.2d 918 (1959).

The bill of complaint in this case was clearly demurrable if a demurrer had been filed. In five succinct paragraphs it alleged: (1) that appellee had record title to "Lot Number 5" (a copy of the deed was appended thereto); (2) that appellee had a twenty-foot right of way (evidenced by an appended deed); (3) that appellant's husband had acknowledged the land and right of way in a survey (which was also appended); (4) that appellant claimed both land and right of way by adverse possession; and (5) that the survey was acknowledged on August 29, 1960 and that therefore adverse possession could not have ripened until August 29, 1980. The suit was filed on September 27, 1979, obviously with the intention of tolling the twenty-year adverse possession period. There being no assertion of facts indicative either of actual possession or that the land was vacant and unoccupied (which coupled with the record title would have satisfied constructive possession, see Baumgardner, supra), had appellant demurred she would have been successful since the bill failed to state on its face a case within the jurisdiction of the court of equity. Redwood Hotel, Inc. v. Korbien, 195 Md. 402, 410, 412, 73 A.2d 468 (1950). A bill to quiet title in equity would not have been appropriate because it did not appear that the complainant was in possession of the property in dispute. Schultz v. Kaplan, 189 Md. 402, 408, 56 A.2d 17 (1947), and cases cited therein.

Through oversight or cunning, appellant chose not to educate appellee during the crucial twentieth year and elected to answer rather than demur. By admitting that she claimed the land and right of way by adverse possession as contended by appellee, she underscored the questionable jurisdiction of the equity court, but did naught to raise the issue at that time. On July 14, 1980, just over a month before the crucial date noted in the complaint, a hearing was held. Appellee as...