Connaughton v. Bernard

Boyd, J., delivered the opinion of the Court. This case comes before us on an appeal from the action of the Court below in refusing to rescind an order of ratification of a sale made by Alfred D. Bernard, trustee, to James Connaughton, the appellant’s intestate. Mr. Bernard filed a report in which he stated that he had offered the property at public auction, but not having received an adequate bid had withdrawn it, and that Connaughton had made an offer in writing for the three properties embraced in the decree, which are referred to in his offer as “ Nos. 625 and 627 Light street, and No. 100 PI York street, the lots to conform in size and be subject to the ground rents as set forth in the advertisement of said property in the ‘Sun’ of November 7, 1895, a copy of which is hereto affixed.” The sale thus reported was finally ratified, after due publication of the order nisi, no objections having been filed. Ten days afterwards Connaughton filed a petition asking the Court to rescind the final order of ratification, on the ground that the titles to the three lots were defective and the sale was inadvertently ratified. The appellant filed “ additional exceptions to the sale,” James Connaughton in the meanwhile having departed this life. That was done — 590 — with leave of the Court, and the exceptions, as they were called, were treated as additional reasons for rescinding the order'of ratification of the sale. When a sale has been ratified, after publication of the order nisi in accordance with the established practice of Courts of Equity, the facts relied on by one seeking to have the sale set aside must be very clearly established and must be of such character as strongly appeal to the conscience of the Court. But when the Court can see that injustice will be done a purchaser by compelling him to take the property, it has the power to rescind the order of ratification, if the proceeds of sale are still within its control, provided the purchaser has not by his conduct or neglect deprived himself of the right to .relief. We will therefore inquire into the circumstances surrounding this case to ascertain whether the appellant should be relieved of the purchase made by his intestate. A number of objections have been urged to the titles and we will consider them in the order they are presented in the appellant's brief. The two lots fronting on Light street are designated on the plat filed in the casé as Nos. i and 2. No. 1 is on the northeast corner of Light and York streets, having a front of fifteen feet six inches on the former and forty-eight feet on the latter. No. 2 adjoins No. x on the northerly side, fronts thirteen feet on Light street, and has a depth of forty-eight feet. In the rear of those two lots there is an alley three feet wide, and just beyond the alley is lot No. 3, fronting fifteen feet on York street, and having a depth of sixty-seven feet and six inches, running along the alley for its whole depth. Nos. 1 and 2 are parts of a lot which fronted sixty-seven feet and six inches on Light street, with a depth of fifty-one feet on York street and which was leased in 1829 by Louisa Armistead to David Carson and David Taylor, for ninety-nine years, renewable for ever, at the annual rent of $135.00. Afterwards Carson and Taylor subleased the portion of the original lot contained in No. 1 at the annual rental of $31.00. They also subleased — 591 — the part of the original lot included in No. 2 at an annual rental of $26.00, and this sublease became vested in one Jane Bell, who, together with her husband, executed on August 8, 1865, another lease of that lot, reserving the annnal rent of $60.00. The several subleases contained covenants against any other or greater rent than that reserved by them. It is insisted on the part of the appellant that the advertisement of the lots did not properly state the facts and that the titles to these two lots are not marketable, or such as a Court of Equity will compel a purchaser to take, because they are subleases and not original leases. The only reference to the rent in the advertisement is “ this property (referring to Nos. 1 and 2) which will be sold as a whole, is subject as to the first lot to an annual ground rent of $31.00, and as to the second lot an annual ground rent of $60.00.” It is evident that the original lessees undertook to apportion the rent, as they subleased lots 1 and 2 at the same rate the whole lot was leased to them—two dollars per front foot. While there is no positive evidence in the record that Louisa Armistead consented to such an apportionment, there is a circumstance which tends to show she had acquired some interest in the alley which Carson and Taylor laid out on the property which she had leased to them. The agreed statement of facts says, “ It is also agreed that in the original lease of lot No. 3 the right to use the 3-foot alley was granted by Louisa Armistead.” The testimony of Mr. Gill shows that that lease was made March 20, 1847. She had in 1829 leased to Carson and Taylor fifty-one feet on York street, which included the land embraced in the three-foot alley. When Carson and Taylor made the subleases they called for the alley and only included forty-eight feet in depth along York street in their leases. It is therefore altogether probable that Louisa Armistead did make some arrangement with the original lessees by which she acquired some interest in the alley, and acquiesced in the apportionment of rent made by them. This circumstance must be considered in connection with — 592 — the fact that there is not the slightest evidence or suggestion that any more rent was ever exacted or demanded from the holders of those lots, by the owners of the original reversion, than the sums named in the leases made by Carson and Taylor.' On the contrary, it is admitted that the ground rent of $31.00 on lot No. 1 has been collected by the successive owners of the original reversion for more than twenty years and that they collect the remainder of the original rent from one Mary Ann Brack’s estate, which collects in turn four subrents of $60.00 each from the four houses and lots on Light street, just north of the corner lot, and included within the bounds of the original lease from Louisa Armistead to Carson and Taylor. Each of said four lots has a front of thirteen feet and the leases for them contain covenants against the payment of any other or greater rents. There cannot therefore be any such substantial objection urged against the title to these lots by reason of the fact that they are subleases as would prevent them from being marketable. The ground rent system that has prevailed so largely in this State, especially in the city of Baltimore, has been productive of much litigation and in recent years of considerable legislation, looking to the correction of some of the evils and troubles that have arisen, but if this Court sustained the position taken by the appellant in reference to these lots it would create greater confusion, as we know from the cases that have been in this Court, as well as the history of the city, that some of the most valuable property in Baltimore is held under subleases and that there is no record evidence that the rents reserved in many of them have ever been apportioned. In Speed, Trustee, v. Smith, 4 Md. Chy. 299, the advertisement stated that the property sold was subject to a ground rent of “only ten dollars.” The purchaser excepted to the sale and produced a lease of property of which that sold was a part, wherein a rent of twenty dollars per annum was reserved. There was no evidence that the particular parcel sold was ever held for the twenty dollars rent, and — 593 — the Chancellor decided that the mere production of such a lease, which was over fifty years old, did not sustain the exceptant’s case without some proof that the rent reserved had been exacted from the owner of the part sold. But, on the contrary, he was of the opinion that there was an apportionment of the original ground rent which had been acquiesced in by those claiming under the original lessor. That case was affirmed in Bcmntz v. Reddington, 80 Md. 622, where, as there was evidence to show that for more than fifty years no other rent than that named in the sublease had been demanded, the Court held that it was reasonable to conclude that the lot was not liable for any other rent and that there had been an apportionment of the rent reserved upon the original tract of which the lot in question was a part. So, in this case,- without some evidence to the contrary, we must assume that the owners of the original reversion have acquiesced in the apportionment of the rent originally reserved between these five lots. The fact that a greater rent has been reserved on lot No. 2 than there was in the first sublease cannot materially injure or affect the holder of the present leasehold interest. He can see that out of the $60 to be paid by him, the $26 reserved by Carson and Taylor is paid to the holders of that or the original reversion. The covenants in the leases fully protect him from any loss on that account and the possibility of additional inconvenience or trouble that he might have for his own protection would not be such a burden as to entitle him to be relieved from a purchase such as that made by Connaughton. One of the deeds in the chain of title for lot No. x, was executed by John V. L. Graham, who was administrator of Frank M. Hopkins and also of Ida S. Hopkins. It is objected to because it was simply signed John V. L. Graham, administrator, and only signed once. It' would have been more regular for Mr. Graham to have signed twice—as administrator of each of his intestates—but the recitals show that as administrator of Frank M. Hopkins he had, under — 594 — authority of the Orphans’ Court, sold his interest, and as administrator of Ida S. Hopkins, he had, by the same authority, sold her interest. He, as administrator of each of them, was the grantor and conveyed "all the right, title, property, claim and demand of the said Frank M. Hopkins and Ida S. Hopkins,” etc. The deed was acknowledged by John V. L. Graham, administrator of Frank M. and Ida S. Hopkins, and there can be no question as to what he intended when he signed simply as administrator. The deed itself cannot be read without it being manifest that he was administrator of both and conveyed the interests of both'in this lot. The next objection urged is that the title to lot No. 2 is defective by reason of the failure of the Liberty Building Association No. 3 to file a statement of the amount due it on a mortgage which it held and under which this lot was sold. The agreed statement of facts showed that one Frederick Harker became the owner of that lot and gave a mortgage to the Building Association, which contained his assent to the passage of a decree for the sale of the mortgaged premises under the provisions of Art. 4, section 692, etc., of the Local Code. A decree was passed by the Circuit Court for Baltimore City for the sale of the mortgaged property in which a trustee was appointed to make the sale " at or after any one of the periods limited in the mortgage filed for the forfeiture of said mortgage.” The trustee sold the property to the mortgagee, reported the sale to the Coui't, and it was ratified, but the docket of the Court does not show that any statement of the mortgagee’s claim was filed either before or since the sale. It is contended by the appellant that this omission made the sale void. We do not think, however, that it can have such an effect. The jurisdiction of the Court was not dependent upon the filing of said claim, but the Court had jurisdiction of the subject-matter and also of the parties by reason of the assent given to the passage of the decree. The title passed through the decree óf the Court, which authorized its agent, the trustee, — 595 — to make the sale, and not through the ex parte statement of the mortgagee. It was held as early as the case of Hays v. Dorsey, 5 Md. 99, that the affidavit and statement of the amount due could be filed after the decree, as the statute only required it to be filed before the sale. It would, therefore, be an anomalous condition of affairs if this ex parte proceeding of the mortgagee could confer jurisdiction on a Court of Equity or if the mortgagee could take it away by not filing the statement. That was never intended by the Legislature. As the statute requires the statement to be filed before sale, the Court on having its attention called to the omission ought to refuse to ratify a sale, if it is not so filed. That was so held in Gatchell v. Presstman, 5 Md. 161, but the Court in referring to this question said that “when due notice, in the usual manner, has been given, affording an opportunity for objections to be made and none are presented, from any quarter, if the sale is finally ratified, being then a judicial sale, consummated by a Court of competent jurisdiction in the premises, it might well be considered too late, then, to make such an objection as the one now relied upon.” If it is not filed the Court might very properly, even after the sale was ratified, rescind the order of ratification upon application being made within such time as it would bej>roper to exercise that power, but in this case the sale was made some time prior to June 16, 1873 (the exact date does not appear in the record), and there is no evidence that any such application wras ever made or any question raised as to the regularity of the proceedings. It is too late to raise it now. It will not be out of place to say that as it is admitted the proceedings in the mortgage case were never recorded, the appellee should have them recorded and pay the costs out of the proceeds of sale, if they cannot be collected from the proper party. Two objections are urged against the title to lot No. 3. It is contended that the sale should be set aside because — 596 — there is no authority of record to build over the qlley as the advertisement stated could be done, excepting in the deed to Martin Reddington from Thomas Healey, which is dated April 16, 1884. Mr. Gill, a member of the bar of Baltimore City, testified that he had examined the title, and in answer to the question as to what the records disclosed as to the' right to build over the alley said, “ This right does not appear in any of the papers by which the title is held from the lease from Louisa Armistead on March 20, 1847, until the deed from Thomas Healey to Martin Reddington on April 16, 1884; this last mentioned paper being the only one in which the right is mentioned, as far as I have been able to discover from the papers found of record.” That testimony was not objected to and we presume was admitted in that way to avoid expense of filing copies of the title papers. The evidence seems to be confined to the title papers of lots 1, 2 and 3, and we are not informed by the record what rights to this alley, if any, are vested in the owners of any of the other lots bordering on it. But at the time of the sale the improvements on No. 3 did not extend over the alley, and therefore cannot be affected by this question as they now stand. It is true that the owner of the lot may at some time desire to rebuild or remodel the house now thereon, but if it be conceded for the purposes of this case that he could not safely build over the alley, that would not justify the Couit in setting aside the sale, as at most it would only entitle the purchaser to a rebate of the purchase money. But the possibility of the owners of any of the other lots interfering is exceedingly remote. The privilege attempted to be given by Healey to Reddington was “ the right of building over the said three-feet alley, provided the use thereof is not interfered with, such privilege being over an arched way not less than fight feet high.” As Connaughton by his purchase became the owner of twenty-eight feet and six inches on one side of the alley, and sixty-seven feet and six inches on the other, any improvements over the alley, at least eight feet high, would not likely in — 597 — terfere with the use of it, but if they did, then by the very terms of the deed they could not be made, because it only attempted to grant the use, “ provided the use thereof is not interfered with.” There is nothing in the record to suggest that when the alley was built over as it was before the present improvements on lots No. i and 2 were made, any objection was made to it. When Connaughton filed his petition asking the Court to rescind the sale he did not object to the purchase on this account and did not intimate that he had been in any way misled by the advertisement or anything the trustee said or did, excepting as to the rents the properties were liable for. Another objection urged is that there was reserved to a Mrs. Ryan, by the former owner of lot No. 3, the right of way across this lot for a passage from the alley to her lot “ for the purpose of passing wood, coal and other necessaries into the first mentioned premises, and also an outlet for water therefrom into said alley.” The lot in which Mrs. Ryan was interested had been conveyed to a trustee for her benefit by the persons who were also the owners of lot No. 3. The evidence shows that there is a pipe leading from the premises formerly owned by Mrs. Ryan to this alley to carry off the water, which is on the surface and plainly visible. There is also a door in the wall between the two lots. The property was offered at public auction on the premises and was examined by Mr. Connaughton, who was present and a bidder at the sale. There is no particular place designated where the right of way should be, and if it be conceded that the present or future owner of the Ryan lot can maintain the right to have this way, it can only be used in a reasonable manner and in such manner as will not unnecessarily interfere with the use of lot No. 3 by the owner of it. The evidence shows that since 1855 the present owner has only used it to clean out his sink and as an outlet for water to the alley. Mr. Connaughton did not urge this as one of the objections to the title, and there is nothing to show that he was not aware of this easement be — 598 — fore he purchased the property, whilst there is some evidence to the effect that there was enough to put him on inquiry about it. In fact there is a total failure of evidence to show that he was in any way misled by the trustee or that he' was not fully aware of the condition of the title to-the lot with reference to building over the alley, as well as-what is termed the Ryan easement. Without some evidence to that effect the Court would not have been justified in refusing to ratify the sale, if objection had been made before that was done, and-there is all the stronger reason why it should not rescind an order previously passed after notice had been given in accordance with the established practice-of the Court. (Decided January 5th, 1897). . We have not deemed it necessary or proper to pass upon 'the rights of persons > not parties to this proceeding to the alley or the easement above referred to, and have therefore purposely refrained from doing so, as we think the appellant has failed to show such a condition of affairs as would authorize the Court to set the sale aside. Having considered all the objections to the titles urged before us and being of the opinion that the petition to rescind the order of ratification ought not to have been granted, the order of the Court below must be affirmed. Order affirmed with costs to the appellee.