Berry v. Derwart , 1880 Md. LEXIS 133 ( 1880 )

Alvey, J.,

delivered the opinion of Court.

This case was taken from the jury by the instruction given hy the Court below, and, as the case was presented on the part of the plaintiff, we do not see that the Court could have done otherwise.

The action was ejectment for the recovery of a lot of ground in the City of Baltimore, on Lee Street. To maintain the action, it was necessary that the plaintiff should have shown that he had, both at the time of the institution of the suit and at the time of trial, the legal title and right to possession of the premises sued for. Carroll vs. Norwood, 5 H. & J., 155. Without showing this character of right in the premises, there could be no recovery by the plaintiff.

In the chain of title produced by the plaintiff there was a deed from Keener to Armstrong and Dulin, trustees, dated 29th of November, 1841. This deed contains no description of the lot sued for in the body or granting part of it, but refers to a schedule annexed for specification and description of the property conveyed; and the description in the schedule, which is supposed to embrace the lot sued for, is given thus: “Eive building lots on Lee, near Cove street, 102 feet, @ 1.25 per foot.” It also appears from this deed, that the property embraced by the description just recited, was conveyed subject to a mortgage from Keener, the grantor, to The Farmers’ and Planters’ Bank of Baltimore. The deed of trust to Armstrong and Dulin contained a power of sale, and it is under and through these trustees, by virtue of the power of sale, that the plaintiff claims title to the lot sued for. Neither the' mortgage, nor any release thereof, was offered in evidence, so far as it appears from the bills of exception taken at the trial; and the admission in evidence of the deed of trust made hy Keener being subject to exception by the defendants, the exception was taken by way of prayer for the exclusion of the deed from the jury; which prayer the Court granted, upon the ground that the deed contained no sufficient description of the property in suit. The Court also instructed the jury that there was no sufficient evidence before them to prove legal title in the plaintiff, and therefore their verdict should he for the defendants.

Upon these rulings of the Court, two questions arise: First, whether the deed to the trustees contains a sufficient description of the property to pass the title thereto; and, secondly, whether the Court was right in giving the instruction that there was no sufficient evidence to show legal title to the property in the plaintiff.

1. It is perfectly well settled, both upon reason and authority, that every deed of conveyance, in order to transfer title, must either in terms, or by reference, or other designation, give such description of the subject-matter intended to be conveyed, as will he sufficient to identify the same with reasonable certainty. Here, the deed not professing to convey all the property of the grantor, or even all of his lots or real estate on Lee street, there is really no description or designation of the five building lots on the one side or .the other of Lee street; and therefore it would he impossible do locate the lot claimed by the plaintiff, under the description contained in the deed. It is not a question of the sufficiency of the description of the property in the declaration, as seems to he supposed hy the appellant, but of the sufficiency of the description in a muniment of title. There is in the margin of the schedule annexed to the deed of trust a reference to the mortgage to the Farmers’ and Planters’ Bank, as containing a full description of certain property, including the five building lots on Lee street; and if the plaintiff had intended to rely upon that description in aid and support of the deed, the mortgage ought to have been offered in evidence with the deed; for the deed alone, unaided by any referential description, is not legal evidence to show title to the lot sued for, and is entirely without legal effect for that purpose. Hammond vs. Norris, 2 H. & J., 130, 146.

2. But the Court was not only justified in granting the prayer excluding the deed, but also in granting the instruction that there was no sufficient evidence offered by the plaintiff to prove legal title in himself, and therefore he was not entitled to recover. The plaintiff relied alone upon his paper title, and in order to make that title good, it was necessary to show a transfer of title from Keener; and as the deed offered in evidence was insufficient for that purpose, unaided by the production of the mortgage, and was therefore excluded, there was a failure of evidence to show legal title in the plaintiff. But even if the deed had been admitted, and had contained a sufficient descripof the property, that instrument showing as it does on its face that it had been made subject to an outstanding mortgage of the five building lots, there would only have been an equity of redemption upon which the deed could have operated; and unless a release or an assignment of the mortgage had been given in evidence, or evidence had been given of the payment or extinguishment of the mortgage debt, the plaintiff would have failed to show legal title in himself to the property sued for. It is true, as a general principle, that a Court of law will not permit an outstanding satisfied mortgage to be set up against the mortgagor, or those claiming under him; but, in order to get rid of the effect of such outstanding title, it would be incumbent upon the plaintiff to show that the mortgage debt had been satisfied or in some way extinguished. Paxon’s Lessee vs. Paul, 3 H. & McH., 399; Beall vs. Harwood, 2 H. & J., 167, 173; Pelts vs. Clarke, 5 Pet., 480, 483. No such proof was offered in this case.

(Decided 9th December, 1880.)

The statement appended to the record, and which, as it appears, has been transmitted to this Court at the instance of the plaintiff’s attorney, in respect to an application that had been made to be allowed to supply additional proof in the Court below, before the conclusion of the trial, hut after the evidence had been closed, and the prayers submitted, if not finally acted on by the Court, forms no part of the record, and is not before us for consideration. Indeed, if the matter had been embraced in a bill of exception, the action of the Court in overruling the plaintiff’s motion would not have been a subject of review by this Court; — the matter being entirely within the discretion of the Court, under the rules of Court set out with the statement. Telegraph Co. vs. Gildersleve, 29 Md., 234; Sparrow vs. Grove, 31 Md., 214.

The judgment of the Court below must be affirmed, with costs.

Judgment affirmed.