Leonard v. Diamond

Babtol, C. J., delivered the opinion of the Court. The appellants, plaintiff’s lessors, claim title as right heirs of Catharine A. Despaux under the deed of Despaux and wife to Devine, dated September 5th, 1851. By that deed all the property and estate, real, personal, and mixed, of Anthony Despaux, was conveyed to Devine and his heirs, to the proper use and behoof of said Devine and his heirs, in trust for the separate use of Catharine, [540] wife of Anthony Despaux, for life, then in trust for Anthony Despaux for life, without impeachment of waste, “ and from and after the death of the survivor of them, the said Anthony and Catharine, then in trust for the use and benefit of the right heirs of said Cathai’ine in fee.” At the time of the execution of this deed Anthony Despaux held an equitable title to the lot of ground in controversy in this case, under a purchase made by him from G-ill and Purviance, trustees, duly appointed by a decree of Baltimore County Court sitting in Equity. The sale was made on the 9th day of J une, 1847, and was duly reported and finally ratified on the 14th day of September, 1847, and the purchase-money paid by Despaux, the purchaser. On the 3d day of October, 1849, the trustees executed a deed conveying the property to Despaux, but this deed, though duly acknowledged, was never recorded. On the 13th day of April, 1857, Grill and Purviance, trustees, executed another deed conveying the lot of ground in question to Anthony Despaux in fee, which was duly recorded on the day of its date. Ten days thereafter Anthony Despaux and wife united in a deed conveying for a valuable consideration the same lot of ground to John Sherlock in fee, under whom the appellee, defendant in possession, derives title. Upon this state of facts, the case was submitted to the Superior Court, and a judgment was rendered for the defendant. In our opinion, the judgment is correct, and ought to be affirmed. If it be conceded for the purposes of the case that the appellants’ counsel is right in the several positions assumed by him in argument, that is to say: 1st. That the deed to Devine in 1851 operated to convey the equitable estate in the lot of ground in controversy, then held by Despaux, under his purchase from the trustees. [541] 2d. That the deed to Despaux from the trustees, .made on the 13th day of April, 1857, operated by relation to convey the legal title from the day of sale, as decided in Hunter vs. Hatton & Kendrick, 4 Gill, 127; which would enure by way of estoppel to the benefit of the grantee under the deed of 1851, as decided in Corcoran vs. Brown, 3 Cranch, C. C. R., 143, and Stow vs. Wyse, 7 Conn., 220. And 3d. That the recorded deed of 1851 was constructive notice to John Sherlock of the pi’ior conveyance of the lot in question, and that having such notice, his title, and that of the appellee, who claims under him, would be affected thereby, and that the doctrine of relation applies. Without deciding these several propositions, but conceding them to be correct, still it is very clear the judgment must be affirmed upon the distinct ground that the appellants have not the legal title, without which they cannot maintain an action of ejectment. To show that to maintain ejectment the legal title is necessary, and an equitable title is hot sufficient, we refer to 5 H. & J., 173; 1 Gill, 430; 1 Md., 52; 27 Md., 208; and to Lannay’s Lessee vs. Wilson, et al., 30 Md., 536. On this question, we concur in the opinion expressed by the Judge of the Superior Court. The trust created by the deed of 1851 is a continuing trust; by its express terms, the wdiole legal estate was vested in Devine — the conveyance is to him, and his heirs, to the proper use and behoof of him and his heirs — which vested in him, under the Statute, the whole legal estate, and constituted the estate of the cestuis que trust, mere equitable interests or Chancery trusts. Ware vs. Richardson, 3 Md., 458; 2 Crabb’s Law of Real Property, 508. We concur in the opinion of the Superior Court that the case presents no ground for the presumption of a conveyance of the legal title by Devine to the cestuis que trust in remainder. In cases of simple trusts, where a Court of Equity would [542] compel the trustee to convey, the presumption that a conveyance has been made will arise after the lapse of time, and in support of long-continued possession by the parties having the whole beneficial interest. But here there is no foundation for such a presumption ; these appellants claiming as right heirs of Catharine Despaux are not now, and have never been in possession; and if they have any title to the premises under the deed of 1851, they are not clothed with the legal title, and therefore cannot, in any view of this case, maintain this suit. To avoid misconstruction of this opinion, it is proper to add that we are not to be understood as deciding that the appellants, as right heirs of Catharine Despaux, and cestuis que trust in remainder, under the deed of 1851, have the equitable estate in the property. In the examination of the case, a very interesting question has occurred, growing out of the time construction, operation, atid effect of that deed. As has been said, conceding the doctrines of relation and estoppel to apply, the whole legal estate devolved upon Devine; and the eestuis que trust would be entitled to equitable estates only, limited to Catharine Despaux for life, remainder to Anthony for life, in the event of his surviving her, remainder in fee to the right heirs of Catharine. Thus, an estate is given to Catharine for life, with remainder to her right heirs in fee; both are of the same nature, both being equitable estates. If the rule in Shelley’s case applies, and construing the words “ right heirs ” as words of limitation, and not words of purchase, the’ estates coalesce, so as to vest the inheritance in Catharine ; then she had the power of alienation; and the deed from herself and her husband to John Sherlock, in 1857, passed a good title; and the appellants would have no estate in the property, legal or equitable. This question does not appear to have been presented, in [543] the Court below, and was not argued at the bar. We refrain from expressing any opinion upon it, as not necessary to the decision of the present case. (Decided 21st December, 1869.) Judgment affirmed.