Weinbeck v. Dahms

• Decision Date: 24 April 1919
• Docket Number: 12.
• Citation: Weinbeck v. Dahms, 134 Md. 464, 107 A. 12 (Md. 1919)
• Parties: WEINBECK v. DAHMS.
• Court: Maryland Court of Appeals

107 A. 12

134 Md. 464

WEINBECK v. DAHMS.

No. 12.

Court of Appeals of Maryland

April 24, 1919

Appeal from Baltimore City Court; Henry Duffy, Judge.

"To be officially reported."

Ejectment by Gertrude C. Dahms against Joseph Weinbeck.Judgment for plaintiff, and defendant appeals.Reversed, without a new trial.

Frank Driscoll, of Baltimore (Edward A. Weiler, of Baltimore, on the brief), for appellant.

Edward H. Burke, of Towson, and Osborne I. Yellott, of Baltimore (Piper, Yellott, Hall & Carey, of Baltimore, on the brief) for appellee.

STOCKBRIDGE J.

This is an action of ejectment brought by the appellee claiming as a tenant in common to the extent of a one-third interest in a lot on Dillon street.

The supposed right of the plaintiff, appellee here, arises out of a deed executed on the 21st of April, 1913, by Anna Dahms, of the property in question on Dillon street.The granting clause of the deed was in the following language:

"Witnesseth that in consideration of the sum of five dollars and other good and valuable considerations, the said Anna Dahms doth grant and convey unto Gertrude C. DahmsIrwin F. Dahms, and Anna Dahms, minors (reserving, however the absolute right to grant, convey, sell, mortgage, limit or dispose of the herein described property, absolutely, during the term of my natural life, as if this deed had never been executed), their heirs and assigns in fee simple, all that lot of ground, situate, lying, and being in Baltimore county and described as follows."

The habendum clause of the deed follows exactly the language of the granting clause.

On February 1, 1916, the said Anna Dahms, who remarried, the name of her then husband being John Grosskopf, conveyed in fee simple to Joseph Weinbeck the same lot as that described in the deed of 1913 before referred to, and the present action is for the purpose of recovering from Weinbeck an undivided one-third interest by Gertrude C. Dahms, as tenant in common, as her interest in the property.This claim is predicated upon the theory of a repugnancy in the deed of 1913; the contention being that the grant to Gertrude, Irwin, and Anna gave each of them a vested interest in the property, and that the reservation in the grantor was in derogation of the fee-simple interest, and therefore void.

The case was tried before the court below upon an agreed statement of facts, and the first five exceptions appearing in the record were upon offers of evidence, on the ground that the evidence so proposed to be offered was in contradiction of the written deed, and therefore inadmissible.These objections were severally sustained by the trial court, and the correctness of those rulings will be discussed later.

The remaining bill of exceptions deals with the prayers, and it will be sufficient for their consideration to advert briefly to the rule of law properly applicable under a condition of facts such as the record discloses, and then pass to one or two special comments with regard to the form of three of the prayers.

At the outset it is proper to say that there cannot be any dispute as to the proposition that, where there is a repugnancy between the granting clause of a deed and the habendum, where an estate which has been granted in fee is sought to be cut down to a lesser estate, or limited by conditions, that such attempt will be rejected as void, being in derogation of the absolute estate previously granted.

The same rule also applies where there is a proviso in a deed which would operate in the same manner, and a large number of the cases cited in the argument, and referred to in the briefs of counsel, are of this class; but it is equally true that, where a repugnancy does not so exist, or where there is an ambiguity, and the court can ascertain the intent of the grantor by reference, not to one, but to all parts of the deed, that intent will be given effect.The rule of law to-day is well and clearly stated in 8 R. C. L.pp. 1037, 1038, and 1046:

"Whatever may have been the earlier doctrine, it is now thoroughly settled that technical rules of construction are not favored, and must not be applied so as to defeat the intention.*** In modern times the more sensible rule obtains, in all cases to ascertain and give effect to the intention of the party as gathered from the entire instrument, together with the surrounding circumstances,

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