Worthington v. Hiss

• Decision Date: 17 January 1889
• Citation: 16 A. 534,70 Md. 172
• Parties: WORTHINGTON ET AL. v. HISS ET AL.
• Court: Maryland Court of Appeals

16 A. 534

70 Md. 172

WORTHINGTON ET AL. v. HISS ET AL.

Court of Appeals of Maryland

January 17, 1889

Appeal from circuit court of Baltimore city.

Suit by Thomas Worthington and others against P. Hanson Hiss and others for partition. The parties on both sides appeal.

Argued before ALVEY, C.J., and MILLER, IRVING, STONE, BRYAN YELLOTT, and MCSHERRY, JJ.

I N. Steele and J. I. Alexander, for Worthington and others.

S Teakle Wallis, M. R. Walter, A. W. Machen, Sebastian Brown, and James McColgan, for Hiss and others.

MILLER J.

After the remand of this case on the second appeal, (67 Md. 139, 9 A. 228,) the circuit court, being so instructed by this court, passed a decree, dated the 23d of May, 1887, for a partition of the common property, and directed that the shares of the Worthingtons and Knapps therein should be allotted to them out of the unimproved part now in possession of the devisees of Philip Hiss. This partition and allotment have been made, and to this extent the litigation seems to be ended. It was decided on the first appeal (62 Md. 33) that the Worthingtons were entitled as tenants in common to an undivided sixth, and the Knapps to an undivided sixth of one-sixth part of all the common property. This property consists of about seven acres of land lying within the limits of the city of Baltimore, through which streets have been laid out and opened. About one-half of this area was and still is vacant and unimproved ground, while the other half has been improved by valuable dwelling-houses erected thereon by the several purchasers of building lots. The possessors and occupiers of all this property at the time the suit was commenced were bona fide purchasers, deriving title from a judicial sale made in 1833, under a decree in equity. This decree of May, 1887, besides providing for the partition, also declares, in conformity with the previous decision of this court, that the Worthingtons and Knapps are entitled to recover from the other parties their respective shares of the rents and profits of the common property, and refers the case to the auditor for the purpose of having an account stated. The auditor, however, is expressly directed, in stating the account, to ascertain what portion of such rents and profits has been due to the use of the improvements upon the parcels of said property which have been improved since the judicial sale in 1833, as distinguished from the por: tion thereof which has been due to the use of the land in its present condition, and to exclude the first-mentioned portion of such rents and profits from the allowance to be made to the Worthingtons and Knapps. This clause of the decree simply carries into effect the previously declared purpose of this court to give full protection to these bona fide purchasers in respect to any beneficial permanent improvements they may have placed upon the property. Such improvements are neither allowed to enhance the value of the property for the purpose of partition, nor to increase the responsibility of the improvers in respect to back rents and profits. In taking the account, the auditor is directed to consider the property just as if it had all been and remained vacant and unimproved ground. When the accounts came in they were rejected, on exceptions being filed to them, and the court, by an order passed on the 29th of September, 1888, sent the case back to the auditor with directions to state the accounts upon the principles laid down in its accompanying opinion, with leave to take additional proof. From this order both sides have appealed.

On the appeal by the Worthingtons and the Knapps the main question is, what rule ought to govern this accounting for rents and profits where the entire property out of which it is supposed such rents and profits were derived consists, or must be treated as consisting, of vacant, unimproved city lots? To determine this we must ascertain the real character of the case, the legal relation of the parties to each other, and upon what ground the right to recover back rents and profits is to be placed. It seems to us clear that this is not a case covered by the statute of 4 Anne, c. 16, § 27. That statute whatever may be said as to its construction in other respects, applies only to cases where there is no question either as to the existence of a tenancy in common, or as to the title of the party seeking the account which it allows. But here the original bill prayed for a partition and a sale of the property for the purpose of effecting partition between tenants in common, and the defendants strenously denied the title asserted by the complainants. They insisted that their own title, derived under the judicial sale, was an absolute fee-simple interest in the entire property, and that all interest of the Worthingtons and Knapps therein was divested by that sale. This denial of title and resistance to the suit made a clear case of ouster, and the parties would ordinarily have been sent to a court of law, to try the question of title in an action of ejectment. That, however, was not done in the present case, but the trial was had in equity under the bill for partition, and it is explained in the opinions of this court in the preceding appeals...