Carmody v. Brooks

Miller, J., delivered the opinion of the Court. The appellant became purchaser of certain leasehold property belonging to the estate of the appellees’ intestate, sold under an order of the Orphans’ Court. The sale was duly'reported and ratified, but the purchaser subsequently filed a petition praying the Court to rescind the sale upon the grounds, 1st. That there is a material variance as to size and ■character, between the lot as represented and as existing, by actual measurement, and that he would not have made the purchase if he had known at the time of this deficiency. 2nd. That there is a fatal defect in the title as the deeds under which the vendors claimed the property cannot be located. 1st. As respects the first objection, it appears the advertisement by which the sale was made, described the property thus: “ A lot of ground fronting on Addison street 50 feet, with an even depth of 123 feet, improved by three two story brick houses, each with a front of 12^ feet,-also a • two story brick stable 25 by 50 feet, together with three frame stables.” The proof shows the lot had a front of 50 feet on Addison street, and was 123 feet deep, but in the rear was 44 instead of 50 feet in width, thus leaving on one side of it a small wedge-shaped deficiency. None of the described buildings nor any part of them were on this deficiency, and it is shown the appellant was on the premises and examined or had an opportunity of examining them before he purchased. The equitable rule on this subject is very clearly stated in Foley vs. Crow, 37 Md., 60; and we are of opinion the Orphans’ Court correctly applied it to the facts of this case by allowing a propor [245] tionate abatement from the price and refusing to rescind the sale. 2nd. As to the second (ground of objection, it appears the intestate derived his title to the lot under two deeds. The first dated the 23rd of August, 1841, is from Edward JDeLoughery, of the city and county of Baltimore, and Susanna, his wife, (lately Susanna Hickley, widow,) and administratrix de bonis 'non, with the will annexed of her former husband, William Hickley, and also administratrix de bonis non of Catharine Hickley, and the property thereby conveyed is thus described: “ All that part of a lot or parcel of ground situate and lying in the City of Baltimore aforesaid, being part of the lot No. 22 in the first addition to Baltimore town, (now the .City of Baltimore aforesaid,) on the east side of Jones’ Falls, which is described as follows, that is to say: Beginning for the same on the northwest side of Addison street, at the southwest corner of lot No. 14 and running thence northerly bounding on the last mentioned lot 123 feet to lot No. 21, then westward]' bounding on lot No. 21-feet to lot No. 12, then southwardly bounding on lot No. 12, 123 feet to Addison street, and then eastwardly bounding on Addison street 25 feet to the place of beginning, which part of a lot, piece or parcel of ground above described, is distinguished on a plat recorded by Eleanor Addison Smith by the number 13, and is the same that by indenture bearing date on or about the 17th day of October, 1796, and recorded among the Land Records of Baltimore County aforesaid, in liber W. G., No. Z. Z., folio 13, &c., was conveyed and assigned by Joseph Moshow to Sebastian Hickley, now deceased, the father of the above named William Hickley, and liusbajid of the said Catharine Hickley, the title to which said parcel of ground in connection with divers other estates, and property, the said William Hickley acquired as one of the residuary devisees named in the last will and testament of the said Sebastian [246] Hickley, -which will bears date the 12th day of February, 1827, has been duly proved, and is now of record in the office of the Register of Wills for Baltimore County, aforesaid, in Liber W. B., No. 12, folio 348, &c., and as the legal representative and sole heir at law of his mother, the said Catharine Hickley, deceased intestate, she being the other residuary devisee named in said will.” The other deed is from David Williams, bearing date the 9th of November, 1847, and in it is this description of the property conveyed, viz: “All that part of lot No. 22, in the first addition to Baltimore town on the east side of Jones’ Falls, which said part is contained within the following metes and bounds, to wit: Beginning on the north side of Addison street and at the southeast corner of lot No. 15, and running thence northerly, parallel with High street, 123 feet to lot No. 21, then westerly binding on lot No. 21, 22 feet to lot No. 13, then running southwardly binding on lot No. 13, 123 feet to Addison street, then running eastwardly binding on Addison street 25 feet to the place of beginning, which said part of a lot is distinguished on a plat filed in Baltimore County Court by a certain Eleanor Addison, by the Number 14, it being the same piece or parcel of ground that was assigned to the said David Williams by John Powell, by indenture bearing date the 6th day of August, 1829, and recorded among the Land Records of Baltimore County, in Liber W. Gr., No 200, folio 234, &c.” It is objected that these deeds are not susceptible of location. There is no doubt of the rule that every conveyance must either on its face or by words of reference give to the subject intended to be conveyed, such a description as to identify it, and if it he land, it must be such as to afford the means of locating it. But what is the difficulty here? None certainly upon the face of the deeds themselves. The descriptions on their face or by reference to other title papers is abundantly sufficient. But it is said diligent [247] search has heen made for the plat mentioned in one deed as “recorded b,y Eleanor Addison Smith,” and in the other as “filed in Baltimore County Court by a certain Eleanor Addison,” and that it cannot he found on the records or among the deeds in equity proceedings and divisions of estates in Baltimore City Court, where it is assumed by the appellant’s counsel it ought to be found, if in existence. Now assuming (for the sake of the argument only) tliat the property convoyed by these deeds cannot he located by any other description or reference contained in them, and that the existence and production of the plat thus referred to is essential to the making out by the vendors of a good title under them, we arc of opinion they have fully met and answered this objection. They have produced an original plat endorsed “Eleanor Addision Smith's Property,” and purporting to be a “plat of the original lots, 22, 23, and 24, lying in the first addition to Baltimore Town on the East side of Jones’ Falls, the property of Eleanor Addison Smith.” It hears date “ March 20th, 1795,” is signed by George Goldsborough Pres-bury,” as the surveyor, and what is more important as showing it to be the plat referred to in these deeds, it is marked “ filed the 21 st April, 1795.” It came from the possession of Augustus Boulden, surveyor, who proves it was handed down to him by his father among his original papers, and that it is an original plat, not being marked as a copy, as it would he if it were a copy. From an inspection of this plat it not only clearly appears to he the one referred to in these deeds of 1841 and 1847, but it is apparent the conveyancers who drew these deeds respectively must each, have had it before him, when lie made out the description of the property which each deed contains. The deeds accurately describe the two contiguous lots designated on this plat as Nos. 13 and 14, lying on the North or Northwest side of Addison street, each fronting 25 feet on said street, with a depth of 123 feet, and each [248] with a width in the rear of 22 feet. The description of width, depth, and locality of the property generally, with all the reference to adjoining lots, was ohvionsly taken from this plat in each case. The fact that the appellant's counsel was unable to find it in his search is accounted for by the reasonable inference, that it had been taken from the place or proceeding where or in which it was originally filed, for the very purpose of drawing these and other deeds from it. It is not unreasonable to infer that the elder Boulden was the draftsman of these deeds, or one of them, and having obtained the plat for that or some other purpose, neglected or failed to return it, and thus it came to be found among his papers. But however this may be, the antiquity of the document itself, the appearance of genuineness it bears on its face, and the fact that it purports to have been “filed” somewhere as early as 1795, a few days after it was made, in connection with the general and special correspondence of its descriptions with those contained in these deeds, entitle it, in our oqrinion to he regarded as the plat referred to in them, and as proper to be used in their location. (Decided 4th June, 1874.) No other objection to the order appealed from, requiring the notice of this Court has been made. We shall therefore affirm that order, and remand the cause for further proceedings. Order affirmed, and cause remanded.