Md.) RENEHAN v. MCAVOY 587 The general and essential requi Renehan equally share and share alike, but | ular case. if any or all of said Allie McAvoy Renehan's sites to the validity of a deed under the facts brothers and sisters shall have departed this life during the life time of said Allie McAvoy Renehan, then I give and grant my said farm aforesaid to the descendants or descendant then living of said departed brother or sister per stirpes and not per capita, but should the said Allie McAvoy Renehan have children or the descendant or descendants of any deceased child or children living at his, said Allie's death, then I give to said child or children or the descendants of any deceased child or children living at his death the farm aforesaid per stirpes and not per capita. "And I give, bargain and sell all of my personal property owned by me at the time of my death to the parties aforesaid upon the same terms and conditions as I have hereby given my real estate. "And I do further charge my real estate given as aforesaid with the further sum of four hundred dollars to be paid by Allie McA. Renehan to my niece Annie Renehan wife of my nephew William Renehan at the death of the last of said life tenants Joseph and Elizabeth McAvoy. "Witness my hand and seal. "Hugh McAvoy. [Seal.] "Witness: John G. Rogers." The deed, it will appear, was executed and duly acknowledged by the grantor on the 10th day of March, 1902, before Howard D. Dunkel, a justice of the peace of the state in and for Howard county, and was recorded among the land records of that county on the 2d day of January, 1904, after the death of Mr. McAvoy. and circumstances as indicated in this case have been settled by numerous and well-considered authorities. In Duer v. James, 42 Md. 496, affirmed by this court in Hearn v. Purnell, 110 Md. 465, 72 Atl. 909, it is said, to constitute a delivery of a deed, the grantor must do some act putting it beyond his power to revoke. There can be no delivery so long as the deed is within his control and subject to his authority. In the language of the Supreme Court in Younge v. Guilbeau, 3 Wall. 636, 18 L. Ed. 262, the grantor must part with the possession of the deed or the right to retain it. In Clark v. Creswell, 112 Md. 342, 76 Atl. 580, it was held there is a consummated delivery when the instrument has passed from the grantor, without right of recall, to the grantee or to some third person for his use. [2] The test of delivery is the relinquishment by the grantor of the custody or the control of the deed. When he has formally executed and acknowledged it, and delivered it unconditionally to the grantee or one acting for him, the conveyance is completed and the title has passed. [3] It is also settled by the great weight of authority in this state and in other jurisdictions that the grantor must part with all dominion and control over the deed at the time of its delivery to a third person, in order to make such act a sufficient delivery in, order to divest the title, and the delivery to the third person must be for the use and benefit of the grantee. Carey v. Dennis, 13 Md. 18; Owens v. Miller, 29 Md. 144; Leppoc v. Union Bank, 32 Md. 136; Younge v. Guilbeau, 3 Wall. 636, 18 L. Ed. 262; Porter v. Woodhouse, 59 Conn. 568, 22 Atl. 299, 13 L. R. A. 64, 21 Am. St. Rep. 131; Note to Munro v. Bowles (Ill.) 54 L. R. A. 865. It is admitted that at the date of the execution of the deed the grantor was capable of making a valid deed or contract, that he held absolute title to the property, that no rights of creditors, or other persons having liens, are involved, and the deed was proper- [4] In the case before us the deed after its ly executed under the laws of Maryland to execution by the grantor was placed in the pass real estate. But it is earnestly insisted hands of Judge John G. Rogers of the Howupon the part of the appellants, certain of ard county bar, with certain directions, as his heirs at law, that the deed is void, be- testified to by him. The testimony of Judge cause it was never delivered, so as to perfect Rogers, as contained in the record, is as folthe instrument as a valid deed, and the gran- lows: "Mr. Hugh McAvoy came into my office tees took no title to the property mentioned on March 10, 1902, and said that he wanted therein. The circuit court of Howard county a paper prepared. I asked him what kind of upon hearing of the case, upon bill, answer, a paper he wanted prepared, and he said and proof, held the deed to be a valid instrument to convey real estate, and dismissed the plaintiffs' bill for a decree to vacate and annul the deed, and for a sale of the property for the purposes of partition among the heirs at law of the grantor. And it is from this order thus passed that this appeal has been taken. [1] It is clear upon all the authorities that delivery and acceptance is essential to the validity of every deed, and what constitutes a sufficient delivery, to transfer and vest the title in the grantee, or to make it operative and effectual, as a deed depends largely upon the facts and circumstances of each partic that he wanted to make his property over to Allie. I asked him what provisions he wanted in the paper, and at his direction I prepared that paper the deed. He signed it, and I witnessed it. Then I told him to take it down to Mr. Howard Dunkel's and acknowledge it. He returned with the paper, and gave it to me. I then asked him what he wanted done with it, and he said that he wanted me to keep it for him; at his death, to have it put upon record. I asked him why he did not have it put on record now, but he said that he had reasons for not doing so. I did not inquire into those reasons. He handed me the paper, and I asked him: 'You have delivered this paper to me to be put on record in case of your death?' And he said: 'Yes.' Then he went away. I took the paper and put it in a pigeon hole, and there it remained something over a year. Afterwards he came into my office, and said that he want ed the paper. I asked him what he wanted with it, as he had put it into my hands to be put upon record in case of his death. He said that he did not want to change it, but that it had occurred to him that something might happen to me, and then no one would know where the paper was. He said that he thought he had better take it and deliver it to the register of wills for safe-keeping. I said that this did not make any difference to me. Then he took it away with him." It is apparent, we think, according to all the authorities, that the placing of the deed with Judge Rogers, under the facts of the case, was not an effective and valid delivery. It was delivered to Judge Rogers, as stated by the grantor, "to be kept for him, at his death to be put upon record." It was subsequently recalled, surrendered to the grantor, and delivered by the grantor to the register of wills for Howard county. The evidence shows beyond all question that from what the grantor did and said he simply intended to constitute Judge Rogers as his agent for the custody of the paper, and he cannot, therefore, be treated in any sense as an agent or depository for the use and benefit of the 'grantees. It is established by the overwhelming weight of authority that it is absolutely indispensable, in order to constitute a sufficient delivery, that the grantor shall part with control over the deed, and shall not retain a right to reclaim it. Clark v. Creswell, supra: Brown v. Brown, 66 Me. 316; Woodward v. Camp, 22 Conn. 457; Ball v. Foreman, 37 Ohio St. 132; Hawes v. Hawes, 177 Ill. 409, 53 N. E. 78; Hammerslough v. Cheatham, 84 Mo. 13; Prutsman v. Baker, 35 Wis. 644, 11 Am. Rep. 592; Bailey v. Bailey, 52 N. C. 44; Trask v. Trask, 90 Iowa, 318, 57 N. W. 841, 48 Am. St. Rep. 446; Wilson v. Wilson, 158 Ill. 567, 41 N. E. 1007, 49 Am. St. Rep. 176. The next inquiry then, is: Was the leaving of the deed by the grantor in the custody of Mr. Marlow, the register of wills, on the 5th of May, 1903, "for safe-keeping, and at his death to put it or have it put on record," a valid delivery of the deed? Mr. Marlow, who was called as a witness on behalf of the plaintiff, testified that he was register of wills of Howard county in the year 1903; that he knew Mr. McAvoy, and he gave into his keeping a paper writing, which he said was a deed or will, under the following circumstances: "Q. Did he tell you why he gave it to you, and, if so, what reason did he give? A. He told me that he wished to leave it with me for safe-keeping, and at his death to put it, or have it put, on record. Q. 9. Did you issue any receipt to him? A. I did. keeping? A. I did. Q. 11. As whose agent? A. Hugh McAvoy's. Q. 12. And you put the deed in the safe? A. I did. Q. 13. Was the deed sealed up? A. I do not remember whether the deed was sealed up, or whether I put it in the envelope and sealed it. Q. 14. Then you don't recall whether you knew the name of the grantee or not? A. I do not. Q. 15. I now show you a paper produced out of the custody of the register of wills in response to a summons duces tecum. Please state whether or not you can identify it. A. I can. Q. 16. In whose handwriting is that paper? A. Mine. Q. 17. What is that paper? A. It is a receipt which I gave Hugh McAvoy at the time he gave me the deed. It is dated at Ellicott City, Md., May 5, 1903, and reads, 'Received of Mr. Hugh McAvoy a deed left in this office by himself to be put on record at his death by register of wills,' and is signed by me: 'William H. Marlow, Register of Wills for Howard County.' Wills for Howard County.' Q. 18. On the back of that receipt are the following words: 'Deed left for record with register of wills, May 5, 1903.' In whose handwriting are those words? A. My handwriting. (Note.The paper writing just shown the witness and read by him, with the notation on the back thereof, is now offered in evidence, and marked "Plaintiff's Exhibit Examiner No. 1.") Q. 19. Mr. Marlow, did Mr. Hugh McAvoy call for that paper during his lifetime? A. No, he did not. Q. 20. If he had called for it and surrendered the receipt, would you have given it to him? A. I would. Q. 21. During his lifetime, would you have given up the paper to any one other than Hugh McAvoy? A. I would not, except upon Mr. McAvoy's order. Q. 22. Would you have surrendered it to the grantee named in the deed, had he produced the receipt during the lifetime of Hugh McAvoy? A. I would not. Q. 23. You did not consider yourself in any wise the agent of the grantee, did you? A. I did not. Q. 24. It was not a part of your duty as register of wills to become custodian of deeds, was it? A. I should think not, and I so advised Mr. Hugh McAvoy at that time. Q. 25. Then, as I understand it, you took this deed for safe-keeping simply as an accommodation to Mr. Hugh McAvoy, and acted as his agent to hold the same for him, and put on record at his death, or would have given it back to him, had he so requested you? A. That's correct. Q. 26. Did you make any disposition of this deed during Mr. Hugh McAvoy's lifetime? A. I placed it in the safe and there it remained until his death. Q. 27. Did he ever call for it? A. He did not. Q. What became of it after death? A. Allie Renehan came in the office, produced the receipt which I had given to Mr. Hugh McAvoy, and which I identified a while ago. I thereupon opened the safe, took out the deed, and gave it to Allie Renehan, and told him to take it over to the clerk's office and have it put on record. Q. You know that Hugh Mc Md.) RENEHAN v. MCAVOY 589 And he left with you the receipt you had revoked upon his death and could not aftergiven to Hugh McAvoy, and which you iden- wards be executed, and the validity of the tified? A. Yes. Q. And, when you went out transfer was thereby defeated. Clark v. of office as register of wills, you left that Creswell, 112 Md. 339, 76 Atl. 579; Munro v. paper in the office? A. In the (the) safe in Bowles, 187 Ill. 346, 58 N. E. 331, 54 L. R. A. the office. Q. Did Mr. Hugh McAvoy at the 865. In Johnson v. Farley, 45 N. H. 505, the time he brought this deed to you say any- court thus announced the rule: "To give efthing about not wishing to surrender it until fect to a delivery to a third person where his death; and, if so, what did he say? A. the assent of the grantee may be presumed He did not say anything about not wishing from the beneficial nature of the conveyance, to surrender the deed, but he did say he did it must be placed beyond the control of the not wish to surrender his rights in the prop- grantor, and not put in the hands of a third erty until his death. Q. And that is the rea-person merely to be delivered to the grantee, son he did not want to put the deed on record? A. Yes; while he was living." Upon cross-examination, he further testified in answer to the question: "Q. Did you gather from what Mr. Hugh McAvoy told you the occasion of the preparing of this deed and the names of the people involved in it? A. No, sir. Q. You had no reason to believe that the rights of other persons than Hugh McAvoy were involved in the paper that he delivered to you? A. From the remark of Mr. Hugh McAvoy, I should think there were. I think that he said: "This is my will.' I am positive of it. He said: 'I do not want this put on record until after my death, as I intend to hold the reins while I live.' Q. And you kept the paper up to the time of his death, didn't you? A. I did. Q. And you considered yourself his agent? A. I did it for Mr. McAvoy, and for keeping the paper I charged him a fee of 50 cents, which is allowed by law, for the safe-keeping of wills, etc." There was other testimony upon the part of both the appellants and appellee, but it reflects very little light upon this branch of the controversy, and we need not consider it here. The same principles of law applicable to the conclusion we reached as to the delivery of the deed to Judge Rogers must control upon the facts of this case as to the delivery of the deed to Mr. Marlow. We think the evidence shows and the declarations of the grantor at the time of the delivery of the deed can admit of but one construction, and that is he intended to constitute the custodian of the deed as his agent, and not the agent of the grantees. His statement to the effect that he left it with Mr. Marlow for safe-keeping, and at his death to put it on record, that "I do not want this put on record until after my death, as I intend to hold the reins while I live, and I do not wish to surrender my rights in the property until my death," is conclusive evidence that the grantor did not intend to part with control or dominion over the deed, but retained the right to recall and revoke it at will. In Carey v. Dennis, 13 Md. 18, it was held under such circumstances, if the custodian, in whose custody the papers are placed, was the agent of the deceased, then it is clear, upon both principle and authority, that the agency was for then such third person is merely the agent of the grantor, who, at any time before actual delivery to the grantee, may recall it; but it must be delivered to such third person as the agent of the grantee and received by him in that capacity, and then, if the law will, from the beneficial nature of the conveyance, presume the assent of the grantee, the delivery is complete and the estate passes at once." The numerous decisions of this court bearing upon gifts of savings bank deposits to take effect on the death of the donor and involving questions of a valid delivery are to the same effect. Jones v. Crisp, 109 Md. 34, 71 Atl. 515; Taylor v. Henry, 48 Md. 557, 30 Am. Rep. 486; Whalen v. Milholland, 89 Md. 207, 43 Atl. 45, 44 L. R. A. 208. The testimony also shows that none of the grantees knew of the existence of this deed in the lifetime of the grantor, or that a deed had been delivered to any one for them. The possession of the receipt given by the register of wills for the custody of the deed was retained by the grantor. The evidence of the witnesses Joseph McAvoy, Wm. A. Renehan, and Aloysius Renehan, as to declarations of the grantor, in regard to this receipt, in the event of his death, is entirely too contradictory and insufficient to establish even a delivery of the receipt to the grantees, or that the grantor surrendered control of it in his lifetime. The deed itself is quite significant of the intention of the grantor in this respect, as it seeks to dispose of both realty and personalty as a testamentary paper, but, not being executed as the law requires, it obviously cannot operate as a will. We cannot agree with the conclusion reached by the court below upon the record before us that there was such a sufficient delivery of the deed in this case, as measures up to the requirements of the law, to constitute this a valid and legal deed so as to operate to pass title to the property in question to the grantees, and for the reasons stated the decree of the court below, dated the 22d day of March, 1911, will be reversed. We have considered the exceptions to the testimony reserved by the appellees here objected to, but they can in no way affect the decision of the case or the conclusion that we have reached that this is not a valid deed. The decree of the circuit court for Howard county will be reversed, and the cause remanded for further proceedings, in accordance with this opinion. Decree reversed, and cause remanded, with costs to the appellants. Supplemental Opinion. and Mary I. Renehan, his wife, and the costs in the court below to be paid out of proceeds of sale of the real estate. (116 Md. 265) OBERHEIM et al. v. REESIDE et al. (Court of Appeals of Maryland. June 23, 1911.) 1. EASEMENTS (§ 12*) - GRANT OF EASEMENT IN ALLEY "LAID OUT." Under the deed of U., the owner of the east half of a block, of the southern half of his land, the northern boundary line of the land conveyed being described as binding on a 10-foot the use of this alley in common, "together with alley "here laid out," and the grant including the use of any alley 10 feet wide to be laid out by U., extending northerly parallel to P. street from the northwest corner of" the land conveyed "to H. street," while the words "laid out," in reference to the latter alley, are used in the sense of constructed or improved, and not in their ordinary meaning of the adoption of outlines or location, the alley being laid out in such sense by the deed, which clearly defines its location, the grantee's easement in the alley is not dependent on the grantor improving it, and is not lost by nonperformance of his personal covenant to do so (citing 5 Words and Phrases, 4037). When this appeal was before us at the April term, 1911, of this court, the decree of the circuit court for Howard county, dated the 22d day of March, 1911, was reversed, with costs to the appellants, and the cause was on the 24th day of June, 1911, remanded for further proceedings, in accordance with an opinion filed in the case. Since the date of the decree that was remanded, Joseph McAvoy, Joseph Renehan, and certain others, appellees in this court and defendants in the court below, have filed a petition, asking for a modification of the decree of the 24th of June, 1911, as regards the imposing of the costs, and upon a further consideration of the proceedings and the petition filed herein we think that the decree heretofore passed by us should be modified to the extent of the costs, as heretofore determined. The bill of complaint was filed in the court below for the purpose of vacating and declaring null and void a deed from one Hugh McAvoy to Aloysius Renehan, and for a sale of the property and the distribution of the proceeds of Though, when the title relied on is consale among the heirs at law of the grantor. troverted, and it appears that there is some [5] It appears that the real defendants and ground for the objection, a court of equity, in a contestants in the case were Aloysius Rene- suit seeking relief by injunction as a determiRene-native and not as an ancillary remedy, will not han and Mary I. Renehan, his wife. All of interfere, except for temporary protective purthe other defendants, the petitioners here, poses, till the question of legal title can be defiled their answer in the court below, admit- cided by a court of law, yet, where there is no ting the matters and facts set forth in the alley, except on a theory opposed to the terms denial of the claimed right to easement in an bill of complaint, and consenting to the pas- of an express grant, a preliminary proceeding at sage of the decree as therein prayed. The law is unnecessary. decree below was in favor of the defendants, Aloysius and Mary I. Renehan, and the plaintiffs' bill was dismissed. The costs in the court below was decreed to be paid by the parties, complainants and defendants, except Aloysius Renehan and Mary I. Renehan, his wife. The interest of the appellees in the property is identical with that of the appellants. The plaintiffs appealed the case, and the defendants, other than Aloysius Renehan and wife, were merely nominal defendants, and were not represented in this court by counsel. We are therefore of opinion that the appellees other than Aloysius Renehan and Mary I. Renehan should not be made to pay the costs of the appeal to this court, but that the costs of this appeal should be paid by Aloysius Renehan and Mary I. Renehan, the substantial appellees, and the costs in the court below should be paid from the proceeds of the sale of the real estate. The former decree will therefore be modified to this extent, and the decree will be revised so far as it relates to the payment of costs. Decree reversed as to costs, the costs in this court to be paid by Aloysius Renehan [Ed. Note.-For other cases, see Easements, Cent. Dig. §§ 35-38; Dec. Dig. § 12.*] 2. WORDS AND PHRASES "ALLEY." An "alley" is simply a narrow passageway (citing 1 Words and Phrases, 342). 3. INJUNCTION (8 37*)-TITLE-ESTABLISH MENT BY ACTION AT LAW. [Ed. Note.-For other cases, see Injunction, Cent. Dig. § 85; Dec. Dig. § 37.*] 4. MUNICIPAL CORPORATIONS (§ 697*)—ENCROACHMENT ON ALLEY-ADEQUATE REMEDY AT LAW. Legal remedies would be inadequate where the encroachments on an alley, sought to be enjoined by plaintiffs having an easement therein, would not only wholly exclude them from its use, but would render a connecting alley at the rear of their lots unavailable for the purposes for which it was designed. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 1502-1505; Dec. Dig. § 697.*] 5. EJECTMENT ( 6*)-RECOVERY OF EASEMENT. [Ed. Note.-For other cases, see Ejectment, Plaintiffs' easement in an alley across dealso known to defendant, they are not estopped fendant's land, being a matter of record and to assert it, though they made no formal written protest against its obstruction till three months after defendant commenced to erect a house across it, but merely proposed to him to furnish a substitute, which he failed to do. [Ed. Note. For other cases, see Estoppel, Cent. Dig. §§ 264-275; Dec. Dig. § 93.*] Ma) OBERHEIM v. REESIDE 591 Appeal from Circuit Court No. 2 of Balti- | Blackshere, who subdivided it into the lots more City, in Equity; Henry Stockbridge, represented by numbers 3 to 26, inclusive. Judge. These were demised by Blackshere for the term of 99 years, renewable forever, to Marvin H. Murray, on January 24, 1900, and the latter erected on the lots a row of 24 dwelling houses. In the deed from Ulman Suit by Charles Oberheim and others against Oliver H. Reeside and others. Bills dismissed, and plaintiffs appeal. Reversed and remanded. Argued before BOYD, C. J., and PEARCE, to Blackshere, the rear line of the ground BURKE, and URNER, JJ. conveyed, running 3332 feet from the eastern limit of the church property shown on the plat to the western side of Monroe street, was described as binding on a 10foot alley "here laid out," and the grant included the use of this alley "in common," "together with the use of an alley 10 feet wide to be laid out by Alfred J. Ulman extending northerly parallel to Payson street from the northwest corner of the above lot to Herbert street." These alleys are outlined on the the plat. The lease from Blackshere to Murray conveyed the subdivided lots, together with the improvements, rights, and appurtenances, and the use in common of "an alley 10 feet wide to be laid out by Alfred J. Ulman to Herbert street, as mentioned in" the preceding deed. By mesne conveyances the four lots first mentioned, and the rights and appurtenances thereto belonging, were acquired by the appellants. About the year 1906, the appellees became the owners of the northern portion of the Ulman land fronting on Herbert street. Their deed is not in the record, and the precise date of their acquisition of the property does not appear; but it is admitted that their title was derived through Ulman, In March, 1907, they began to erect upon the land a row of 20 dwellings. The western most house was located across and completely occupied the northern end of the space provided in the deed from Ulman to Blackshere for the 10-foot alley extending to Herbert street. A fence was constructed by the appellees along the rear or southern line of their lots, and this was projected across the southern terminus of the alley space, which was then entirely obstructed at both ends. The appellants have sought in this suit to prevent the completion of the obstructions, and to compel their removal. It appears without dispute from the record that the alley extending from Monroe street on the east to the western end of the original Ulman land is too narrow to admit of the turning of teams, and that the outlet provided to Herbert street on the north is therefore essential to the use of the alley for its intended purpose as a means of access to the rear of the appellants' premises for garbage carts, delivery wagons, and other vehicles. The bill of complaint accordingly charges that the structures in course of erection by the defendants have destroyed the easement to which the plaintiffs claim to be entitled under the grants referred to as appurtenant to their respective premises, |