Kopp v. Herrman

Bryan, J., delivered the opinion of the Court. Peter Herman died in the year i860. By his last will and testament he bequeathed to his son Conrad and to his daughter Elizabeth five hundred dollars each, to be paid to them by his executrix or her successor, when they should respectively reach the age of twenty-one years ; and he declared that these bequests should (as it was expressed) be reserved and appropriated out of the rents and profits accruing from his leasehold and fee-simple property. He devised and bequeathed to his wife all the rest and residue of his property, real and personal, for life, if she should so long remain unmarried, but not otherwise. In the event of her marriage, he devised and bequeathed certain real and leasehold property to his two children. He had, however, a leasehold interest for ninety-nine years, renewable forever, in a lot of ground on Caroline street, in the city of Baltimore, of which he made no limitation over in case of his wife’s marriage. He devised and bequeathed to his two children, after the death of his wife, all the property given to her by the will, expressing his purpose not to interfere with the provisions made for them in the event of her marriage ; and he appointed his wife executrix. She married Andrew Korn shortly after the death of the testator. In the year eighteen hundred and sixty-one she passed an administration account, in which she made distribution of all the personal estate of the testator, retaining to herself the Caroline street lot in which she had a life estate. Before its passage Mrs. Korn had been appointed guardian to her two children, who were infants. In December, eighteen hundred and sixty-four, she and her husband conveyed the — 347 — leasehold lot on Caroline street, to Henry Bachman, reciting in the deed that she conveyed one-third interest therein in her own right, and two-thirds as guardian of her two children, under the order of the Orphans’ Court, passed on the petition of her husband and herself as their guardian. The title of Bachman became vested in Daniel Kopp, in eighteen hundred and seventy-eight, through regular mesne conveyances ; he having purchased the lot for full value without notice of an outstanding claim in any one else. In' February, eighteen hundred and seventy-two (being after the death of Mrs. Korn), her surviving husband rendered the account of her guardianship of her two children, showing that they had been overpaid. One of the items allowed to the guardian among the payments and disbursements is stated as follows : “And for a lot of ground and improvements on the east side of Caroline street, near Wilk, bequeathed to said Catharine for life, and during her lifetime, disposed of under the order of the Honorable, the Orphans’ Court for Baltimore City, and of which lot the proceeds of sale were expended by said Catharine for and in behalf of herself, and for the benefit and behoof of said wards, and none of the said proceeds came in the hands of said Korn, this accountant, as husband of said Catharine — $700.00.” This account was examined and passed by order of the Orphans’ Court. On the following day each of the wards’ executed and delivered to Korn a release in the usual form, which was duly acknowledged and recorded. These releases acknowledged full satisfaction and payment of their claims against their guardian, and each of them contained an acknowledgment of “a correct and satisfactory account of, and full satisfaction for, all claims or demands which the ward might have against the guardian for or on account of a certain house and lot on the east side of Caroline street contained in the inventory of the testator’s estate and retained by the guardian.” The principal question presented by this record is whether Kopp has a good title to the property purchased by him. — 348 — Louisa Herrman, the widow of Conrad Herrman, one of the above mentioned wards, has been appointed administratrix d. b. n. c. t. a. of Peter Herrman, the father. She contends that the title to the leasehold was never validly divested out of the executrix of the testator, and that she now holds it as administratrix d. b. n. c. t. a. She is complainant in a bill in equity praying certain equitable relief against Daniel Kopp, which is necessary fo enable her to maintain an action of ejectment which she is prosecuting against him. In the view which we have taken of this case, it is unnecessary to refer specifically to the nature of this equitable claim. By the will Catharine Korn took a life-estate in this leasehold with remainder to her two children. Every legatee, whether of chattels, real or personal, must obtain the executor’s assent to the legacy before his title can be complete and perfect. Williams on Executors, top page 1475 (Sixth American Edition.) The executor’s assent is required even in the case of a legacy to himself. “If a term of years or other chattels be bequeathed to A. for life, with remainder to B., and the. executor assents to A., such interest will inure to vest that of B.; and e con-verso ; for the particular estate and the remainder constitute but one estate.” Williams on Exectctors, 1479. ac~ cor dance with the general principle governing the vesting of legacies, it has been decided in Cole's Lessee v. Cole, 1 Harris & Johnson, 572, that if an executor assents to the bequest of a leasehold estate and gives up possession, he cannot thereafter maintain an ejectment for it. In this case the assent of the executrix vested the title in herself for life and in'the children in remainder. The legal title was absolutely fixed by such assent. This leasehold was charged in conjunction with other property, real and personal, with the payment of the legacies to the two children. The passage of the account did not exempt the executrix or her bondsmen from the consequence of a devastavit ; nor did it prevent the enforcement in equity of a due proportion of the charge against the leasehold for the — 349 — payment of the pecuniary legacies. The mother’s life-estate expired by her death in eighteen hundred and sixty-six ; and the remaindermen would then have become entitled to the leasehold, if it had not been sold, and would thus have held the property and also the charge upon it. The charge would have been extinguished by the union of the title and the lien in the same person. Mitchell v. Mitchell, 2 Gill. 236; Glenn v. Spry, 5 Md. 110. These considerations show, we think, that there is no title whatever in the administratrix d. b. n. of Peterman Herrman. As it may prevent future litigation, it seems proper that we should go further and determine whether any other person mentioned in these proceedings has shown a title to this leasehold. In eighteen hundred and sixty-four the property was sold, and the proceeds expended for the benefit of the mother and her wards, and this disposition of the proceeds was by the order and sanction of the Orphans’ Court. Article 93, section 165, authorizes the Court, if it deems it advantageous to the ward, to allow the guardian to sell part of the ward’s personal estate for his maintenance and education. With a full knowledge of all these proceedings the wards approve of them and execute releases. It has been said that they were not of competent age when they executed these releases. This statement, however, has not been satisfactorily proved. But if they were at the time of the execution of the releases under the disability of non-age, when they reached the age of twenty-one years their right of action accrued to set aside the releases and impeach the guardian’s account if any cause existed for such proceeding. And from that time the Statute of Limitations began to run against them. Green v. Johnson, 3 Gill & Johnson, 389. Kopp claims by regular mesne conveyances under a deed executed in eighteen hundred and sixty-four. Assuming for the sake of the argument that this deed was void, the entry of the grantee under it was made bona fide and therefore he acquired adverse possession. He could not by any possible interpretation of the law be considered as having acquired — 350 — less than color of title.” The Courts have concurred, it is believed, without an exception, in defining ‘ color of title’ to be that which in appearance is title, but which in reality is no title. They heve equally concurred in attaching no exclusive or peculiar character or importance to the ground of the invalidity of an apparent or colorable title; the in quiry with them has been whether there was an apparent or colorable title, under which an entry or a claim has been made in good faith.” Wright v. Mattison, 18 Howard (S. C.) 56. In Hoye v. Swan’s Lessee, 5 Md. 248, it was said that “ it appears to be immaterial whether the title be valid or not; provided the entry and claim be bona fide under that title.” And it was considered in the same case to be well settled that when one entered under color of title, by deed or other written document, he acquired actual possession to the extent of the boundaries set forth in the writing, even although the title conveyed to him should be good for nothing. There is then uninterrupted adverse possession by Kopp, and those whose title he holds for about twenty-eight years before the institution of this suit. The Statute of 21 James the First prescribing limitations to entries upon real estate is applied in this State to cases of leases for ninety-nine years, renewable forever, which have many of the features of real estate. After twenty-years adverse possession Kopp’s title would be perfect against all pei-sons except those who are within the disabilities mentioned- in the second section of the statute. This section saves the rights of all persons who are under the age of twenty-one years at the time when their title first accrued; provided they bring their suits within ten years next after reaching full age. The title of these children of Peter Hen-man (if they have any), accrued at the death of their mother in eighteen hundred and sixty-six. If they had not been infants at that time it would have been barred in eighteen hundred and eighty-six. But the statute allowed them ten years after they arrived at full age to bring suit. By the computation most favorable to them, one of them reached the age of twenty-one years, the age more than — 351 — twenty years ago, and the other more than nineteen years ago. ' We see nothing in the record to countervail the title of Daniel Kopp. (Decided January 8th, 1896.) The Court below passed a decree in favor of the complainant below, who is now appellee. As we have not been able to take any view of this case which gives any rights against the appellant, we will, without considering in detail the charges of the bill of complaint, reverse the decree below with costs in both Courts and dismiss the bill of complaint. Decree reversed with costs above and belozv and bill dismissed.