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Md.)

RENEHAN V. MCAVOY

587

Renehan equally share and share alike, but, ular case. The general and essential requiif 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 and circumstances as indicated in this case life during the life time of said Allie McAvoy have been settled by numerous and well-conRenehan, then I give and grant my said farm sidered authorities. In Duer V. James, 42 aforesaid to the descendants or descendant Md. 496, affirmed by this court in Hearn v. then living of said departed brother or sister Purnell, 110 Md. 465, 72 Atl. 909, it is said, per stirpes and not per capita, but should to constitute a delivery of a deed, the grantor the said Allie McAvoy Renehan have children must do some act putting it beyond his power or the descendant or descendants of any de- to revoke. There can be no delivery so long ceased child or children living at his, said as the deed is within his control and subject Allie's death, then I give to said child or to his authority. In the language of the Suchildren or the descendants of any deceased preme Court in Younge v. Guilbeau, 3 Wall. child or children living at his death the farm 636, 18 L. Ed. 262, the grantor must part aforesaid per stirpes and not per capita. with the possession of the deed or the right

“And I give, bargain and sell all of my to retain it. In Clark v. Creswell, 112 Md. personal property owned by me at the time 342, 76 Atl. 580, it was held there is a conof my death to the parties aforesaid upon the summated delivery when the instrument has same terms and conditions as I have hereby passed from the grantor, without right of given my real estate.

recall, to the grantee or to some third person "And I do further charge my real estate for his use. given as aforesaid with the further sum of [2] The test of delivery is the relinquishfour hundred dollars to be paid by Allie McA. ment by the grantor of the custody or the Renehan to my niece Annie Renehan wife of control of the deed. When he has formally my nephew William Renehan at the death of executed and acknowledged it, and delivered the last of said life tenants Joseph and Eliza- it unconditionally to the grantee or one actbeth McAvoy.

ing for him, the conveyance is completed and “Witness my hand and seal.

the title has passed. “Hugh McAvoy. [Seal.] [3] It is also settled by the great weight of “Witness: John G. Rogers.”

authority in this state and in other jurisdicThe deed, it will appear, was executed and tions that the grantor must part with all duly acknowledged by the grantor on the dominion and control over the deed at the 10th day of March, 1902, before Howard D. time of its delivery to a third person, in orDunkel, a justice of the peace of the state 'der to make such act a sufficient delivery in, in and for Howard county, and was recorded order to divest the title, and the delivery to among the land records of that county on the the third person must be for the use and 2d day of January, 1904, after the death of benefit of the grantee. Carey v. Dennis, 13 Mr. McAvoy.

Md. 18; Owens v. Miller, 29 Md. 144; LepIt is admitted that at the date of the exe- poc v. Union Bank, 32 Md. 136; Younge v: cution of the deed the grantor was capable Guilbeau, 3 Wall. 636, 18 L. Ed. 262; Porter of making a valid deed or contract, that he v. Woodhouse, 59 Conn. 568, 22 Atl. 299, 13 held absolute title to the property, that no L. R. A. 64, 21 Am. St. Rep. 131 ; Note to rights of creditors, or other persons having Munro v. Bowles (111.) 54 L. R. A. 865. 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

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 in- that he wanted to make his property over to strument to convey real estate, and dismissed Allie. I asked him what provisions he wantthe plaintiffs' bill for a decree to vacate and ed in the paper, and at his direction I preannul the deed, and for a sale of the prop- pared that paper the deed. He signed it, erty for the purposes of partition among the and I witnessed it. Then I told him to take heirs at law of the grantor. And it is from it down to Mr. Howard Dunkel's and acthis order thus passed that this appeal has knowledge it. He returned with the paper, been taken.

and gave it to me. I then asked him what [1] It is clear upon all the authorities that he wanted done with it, and he said that he delivery and acceptance is essential to the wanted me to keep it for him; at his death, validity of every deed, and what constitutes to have it put upon record. I asked him a sufficient delivery, to transfer and vest the why he did not have it put on record now, title in the grantee, or to make it operative but he said that he had reasons for not doing and effectual, as a deed depends largely upon so. I did not inquire into those reasons. He the facts and circumstances of each partic- handed me the paper, and I asked him: 'You

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have delivered this paper to me to be put on keeping? A. I did.

keeping? A. I did. Q. 11. As whose agent? record in case of your death?' And he said: A. Hugh McAvoy's. Q. 12. And you put the 'Yes.' Then he went away. I took the paper deed in the safe? A. I did. Q. 13. Was the and put it in a pigeon hole, and there it re- deed sealed up? A. I do not remember mained something over a year. Afterwards

Afterwards whether the deed was sealed up, or whether he came into my office, and said that he want. I put it in the envelope and sealed it. Q. 14. ed the paper. I asked him what he wanted Then you don't recall whether you knew the with it, as he had put it into my hands to name of the grantee or not? A. I do not. be put upon record in case of his death. He Q. 15. I now show you a paper produced out said that he did not want to change it, but of the custody of the register of wills in rethat it had occurred to him that something sponse to a summons duces tecum. Please might happen to me, and then no one would state whether or not you can identify it. A. know where the paper was. He said that he I can. Q. 16. In whose handwriting is that thought he had better take it and deliver it paper? A. Mine. Q. 17. What is that paper? to the register of wills for safe-keeping. I A. It is a receipt which I gave Hugh McAvoy said that this did not make any difference at the time he gave me the deed. It is dated to me. Then he took it away with him.” It at Ellicott City, Md., May 5, 1903, and reads, is apparent, we think, according to all the 'Received of Mr. Hugh McAvoy a deed left in authorities, that the placing of the deed with this office by himself to be put on record at Judge Rogers, under the facts of the case, his death by register of wills,' and is signed was not an effective and valid delivery. It by me: "William H. Marlow, Register of was delivered to Judge Rogers, as stated by Wills for Howard County.' Q. 18. On the the grantor, "to be kept for him, at his death back of that receipt are the following words: to be put upon record.” It was subsequently Deed left for record with register of wills, recalled, surrendered to the grantor, and de- May 5, 1903.'

May 5, 1903. In whose handwriting are livered by the grantor to the register of wills those words? A. My handwriting. (Note.for Howard county. The evidence shows be- The paper writing just shown the witness yond all question that from what the gran- and read by him, with the notation on the tor did and said he simply intended to con- back thereof, is now offered in evidence, and stitute Judge Rogers as his agent for the marked "Plaintiff's Exhibit Examiner No. 1.') custody of the paper, and he cannot, there- Q. 19. Mr. Marlow, did Mr. Hugh McAvoy fore, be treated in any sense as an agent or call for that paper during his lifetime? depository for the use and benefit of the No, he did not. Q. 20. If he had called for grantees.

it and surrendered the receipt, would you It is established by the overwhelming have given it to Him? A. I would. Q. 21. weight of authority that it is absolutely in- During his lifetime, would you have given up dispensable, in order to constitute a sufficient the paper to any one other than IIugh Mcdelivery, that the grantor shall part with con- Avoy? A. I would not, except upon Mr. Mctrol over the deed, and shall not retain a right Avoy's order. Q. 22. Would you have surrento reclaim it. Clark v. Creswell, supra : dered it to the grantee named in the deed, Brown v. Brown, 66 Me. 316; Woodward v. had he produced the receipt during the lifeCamp, 22 Conn. 457; Ball v. Foreman, 37 time of Hugh McAvoy? A. I would not. Ohio St. 132; Hawes v. Hawes, 177 Ill. 409, Q. 23. You did not consider yourself in any 53 N. E. 78; Hammerslough v. Cheatham, 81 wise the agent of the grantee, did you? A. Mo. 13; Prutsman v. Baker, 35 Wis. 614, 11 I did not. Q. 24. It was not a part of your Am. Rep. 592; Bailey v. Bailey, 52 N. C. 44; duty as register of wills to become custodian Trask v. Trask, 90 Iowa, 318, 57 N. W. 841, of deeds, was it? A. I should think not, and 48 Am. St. Rep. 446; Wilson v. Wilson, 158 I so advised Mr. Hugh McAvoy at that time. Ill. 567, 41 N. E. 1007, 49 Am. St. Rep. 176. Q. 25. Then, as I understand it, you took this

The next inquiry then, is: Was the leaving deed for safe-keeping simply as an accommoof the deed by the grantor in the custody of dation to Mr. Hugh McAvoy, and acted as his Mr. Marlow, the register of wills, on the 5th agent to hold the same for him, and put on of May, 1903, "for safe-keeping, and at his record at his death, or would have given it death to put it or have it put on record,” a back to him, had he so requested you? A. valid delivery of the deed? Mr. Marlow, who That's correct. Q. 26. Did you make any diswas called as a witness on behalf of the position of this deed during Mr. Hugh MCplaintiff, testified that he was register of Avoy's lifetime? A. I placed it in the safe wills of Howard county in the year 1903; and there it remained until his death. Q. 27. that he knew Mr. McAvoy, and he gave into Did he ever call for it? A. He did not. Q. his keeping a paper writing, which he said what became of it after death? A. Allie was a deed or will, under the following cir- Renehan came in the office, produced the recumstances: "Q. Did he tell you why he gare ceipt which I had given to Mr. Ilugh McAroy, it to you, and, if so, what reason did he give? and which I identified a while ago. I thereA. He told me that he wished to leave it upon opened the safe, took out the deed, and with me for safe-keeping, and at his death to gave it to Allie Renehan, and told him to put it, or have it put, on record. Q. 9. Did take it over to the clerk's office and have it you issue any receipt to him? A. I did. 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 rec- for then such third person is merely the ord? A. Yes, while he was living."

agent of the grantor, who, at any time beUpon cross-examination, he further testi- fore actual delivery to the grantee, may refied in answer to the question : "Q. Did you call it; but it must be delivered to such third gather from what Mr. Hugh McAvoy told person as the agent of the grantee and reyou the occasion of the preparing of this ceived by him in that capacity, and then, if deed and the names of the people involved the law will, from the beneficial nature of in it? A. No, sir. Q. You had no reason to the conveyance, presume the assent of the believe that the rights of other persons than grantee, the delivery is complete and the esHugh McAvoy were involved in the paper tate passes at once." The numerous decithat he delivered to you? A. From the re- sions of this court bearing upon gifts of savmark of Mr. Hugh McAvoy, I should think ings bank deposits to take effect on the death there were. I think that he said: “This is of the donor and involving questions of a my will.' I am positive of it. He said: 'I valid delivery are to the same effect. Jones do not want this put on record until after my v. Crisp, 109 Md. 34, 71 Atl. 515; Taylor v. death, as I intend to hold the reins while I Henry, 48 Md. 557, 30 Am. Rep. 486; Whalen live. Q. And you kept the paper up to the v. Milholland, 89 Md. 207, 43 Atl. 45, 44 L. R. time of his death, didn't you? A. I did. Q. A. 208. And you considered yourself his agent? A. The testimony also shows that none of the I did it for Mr. McAvoy, and for keeping the grantees knew of the existence of this deed in paper I charged him a fee of 50 cents, which the lifetime of the grantor, or that a deed is allowed by law, for the safe-keeping of had been delivered to any one for them. The wills, etc."

possession of the receipt given by the register There was other testimony upon the part of wills for the custody of the deed was reof both the appellants and appellee, but it tained by the grantor. The evidence of the reflects very little light upon this branch of witnesses Joseph McAvoy, Wm. A. Renehan, the controversy, and we need not consider it and Aloysius Renehan, as to declarations of here.

the grantor, in regard to this receipt, in the The same principles of law applicable to event of his death, is entirely too contradicthe conclusion we reached as to the delivery tory and insufficient to establish even a deof the deed to Judge Rogers must control up-livery of the receipt to the grantees, or that on the facts of this case as to the delivery the grantor surrendered control of it in his of the deed to Mr. Marlow. We think the lifetime. The deed itself is quite significant evidence shows and the declarations of the of the intention of the grantor in this regrantor at the time of the delivery of the spect, as it seeks to dispose of both realty deed can admit of but one construction, and and personalty as a testamentary paper, but, that is he intended to constitute the custo- not being executed as the law requires, it dian of the deed as his agent, and not the obviously cannot operate as a will. agent of the grantees. His statement to the We cannot agree with the conclusion reacheffect that he left it with Mr. Marlow for ed by the court below upon the record before safe-keeping, and at his death to put it on us that there was such a sufficient delivery record, that “I do not want this put on rec- of the deed in this case, as measures up to ord until after my death, as I intend to hold the requirements of the law, to constitute the reins while I live, and I do not wish to this a valid and legal deed so as to operate surrender my rights in the property until to pass title to the property in question to my death," is conclusive evidence that the the grantees, and for the reasons stated the grantor did not intend to part with control decree of the court below, dated the 22d day or dominion over the deed, but retained the of March, 1911, will be reversed. right to recall and revoke it at will. In We have considered the exceptions to the Carey V.. Dennis, 13 Md. 18, it was held under testimony reserved by the appellees here obsuch circumstances, if the custodian, in whose jected to, but they can in no way affect the custody the papers are placed, was the agent decision of the case or the conclusion that of the deceased, then it is clear, upon both we have reached that this is not a valid deed. principle and authority, that the agency was The decree of the circuit court for Howard

county will be reversed, and the cause re. and Mary I. Renehan, his wife, and the costs manded for further proceedings, in accord- in the court below to be paid out of proceeds ance with this opinion.

of sale of the real estate. Decree reversed, and cause remanded, with costs to the appellants.

(116 Md. 265)

OBERHEIM et al. v. REESIDE et al. Supplemental Opinion.

(Court of Appeals of Maryland. June 23, 1911.) When this appeal was before us at the 1. EASEMENTS ($ 12*) - GRANT OF EASEMENT April term, 1911, of this court, the decree of

IN ALLEY—“LAID OUT." the circuit court for Howard county, dated east half of a block, of the southern half of his

Under the deed of U., the owner of the the 22d day of March, 1911, was reversed, land, the northern boundary line of the land with costs to the appellants, and the cause conveyed being described as binding on a 10-foot was on the 24th day of June, 1911, remanded the use of this alley'in common, "together with for further proceedings, in accordance with the use of any alley 10 feet wide to be laid out an opinion filed in the case. Since the date by U., extending northerly parallel to P. street of the decree that was remanded, Joseph Mc- from the northwest corner of" the land conveyed Avoy, Joseph Renehan, and certain others, reference to the latter alley, are used in the

“to H. street," while the words "laid out," in appellees in this court and defendants in the sense of constructed or improved, and not in court below, have filed a petition, asking for their ordinary meaning of the adoption of outa modification of the decree of the 24th of lines or location, the alley being laid out in

such sense by the deed, which clearly defines its June, 1911, as regards the imposing of the location, the grantee's easement in the alley costs, and upon a further consideration of is not dependent on the grantor improving it, the proceedings and the petition filed herein and is not lost by nonperforinance of his perwe think that the decree heretofore passed sonal covenant to do so (citing 5 Words and

. by us should be modified to the extent of the

[Ed. Note.-For other cases, see Easements, costs, as heretofore determined. The bill of Cent. Dig. $$ 35–38; Dec. Dig. $ 12.*] complaint was filed in the court below for 2. WORDS AND PHRASES—"ALLEY." the purpose of vacating and declaring null An "alley” is simply a narrow passageway and void a deed from one Hugh McAvoy to (citing 1 Words and Phrases, 342). Aloysius Renehan, and for a sale of the prop-3. INJUNCTION ($ 37*) - TITLE – ESTABLISH

MENT BY ACTION AT LAW. erty 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 determihan and Mary I. Renehan, his wife. All of interfere, except for temporary protective pur

native and not as an ancillary remedy, will not the 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,

[Ed. Note.-For other cases, see Injunction, Aloysius and Mary I. Renehan, and the plain-Cent. Dig. $ 85; Dec. Dig. § 37. *) tiffs' bill was dismissed. The costs in the 4. MUNICIPAL CORPORATIONS ( 697*)-ENcourt below was decreed to be paid by the

CROACHMENT ON ALLEY-ADEQUATE REMEDY

AT LAW. parties, complainants and defendants, except

Legal remedies would be inadequate where Aloysius Renehan and Mary I. Renehan, his the encroachments on an alley, sought to be enwife. The interest of the appellees in the joined by plaintiffs having an easement therein, property is identical with that of the appel- would not only wholly exclude them from its lants. The plaintiffs appealed the case, and use, but would render a connecting alley at the

rear of their lots unavailable for the purposes the defendants, other than Aloysius Renehan for which it was designed. and wife, were merely nominal defendants, [Ed. Note.-For other cases, see Municipal and were not represented in this court by Corporations, Cent. Dig. $8 1502-1505; Dec. counsel. We are therefore of opinion that Dig. § 697.*) the appellees other than Aloysius Renehan 5. EJECTMENT (8 6*)-RECOVERY OF EASEMENT. and Mary I. Renehan should not be made to coverable in ejectment.

An easement in an alley would not be repay the costs of the appeal to this court, but

[Ed. Note.-For other cases, see Ejectment, that the costs of this appeal should be paid Cent. Dig. $$ 7–11; Dec. Dig. $ 6.*] by Aloysius Renehan and Mary I. Renehan, 6. ESTOPPEL (893*)-EQUITABLE ESTOPPEL, the substantial appellees, and the costs in the Plaintiffs easement in an alley across decourt below should be paid from the pro- also known to'defendant, they are not estopped

fendant's land, being a matter of record and ceeds of the sale of the real estate. The to assert it, though they made no formal writformer decree will therefore be modified to ten protest against its obstruction till three this extent, and the decree will be revised so months after defendant commenced to erect a

house across it, but merely proposed to him to far as it relates to the payment of costs.

furnish a substitute, which he failed to do. Decree reversed as to costs, the costs in [Ed. Note. For other cases, see Estoppel, this court to be paid by Aloysius Renehan | Cent. Dig. && 264-275; Dec. Dig. $ 93.*]

Ma)

OBERHEIM V. REESIDE

591

.

PROPERTY

CHURCH

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 Suit by Charles Oberheim and others term of 99 years, renewable forever, to Maragainst Oliver H. Reeside and others. vin H. Murray, on January 24, 1900, and Bills dismissed, and plaintiffs appeal. Re- the latter erected on the lots a row of 24 versed and remanded.

dwelling houses. In the deed from Ulman Argued before BOYD, C. J., and PEARCE, to Blackshere, the rear line of the ground BURKE, and URNER, JJ.

conveyed, running 33342 feet from the eastGeorge W. Dexter and William G. Towers, ern limit of the church property shown on for appellants. Alfred J. O'Ferrall, for ap- the plat to the western side of Monroe pellees.

street, was described as binding on a 10

foot alley “here laid out," and the grant URNER, J. The appellants are owners of included the use of this alley “in common," renewable 99-year leasehold estates in four “together with the use of an alley 10 feet lots of ground fronting on North avenue, wide to be laid out by Alfred J. Ulman exin Baltimore city, indicated, respectively, tending northerly parallel to Payson street by the numbers 21, 22, 25, and 26 on the from the northwest corner of the above following plat, which was used in the case lot to Herbert street." These alleys are for the purposes of illustration :

outlined on the the plat. The lease from Blackshere to Murray conveyed the sub

divided lots, together with the improvePAYSON ST.

ments, 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 appur

tenances thereto belonging, were acquired 26

O FJALLEY
OPENED

by the appellants.
25
BY

About the year 1906, the appellees became
A.J.ULNAN

the owners of the northern portion of the 23

Ulman land fronting on Herbert street.
Their deed is not in the record, and the pre-

cise date of their acquisition of the proper21

ty does not appear; but it is admitted that

their title was derived through Ulman. In 19

March, 1907, they began to erect upon the

land a row of 20 dwellings. The western ST. 18

most house was located across and com17

pletely occupied the northern end of the 16

space provided in the deed from Ulman to 15

Blackshere for the 10-foot alley extending 14

to Herbert street. A fence was constructed 13

by the appellees along the rear or southern

line of their lots, and this was projected 12

across the southern terminus of the alley

space, which was then entirely obstructed 10

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 rec7

ord that the alley extending from Monroe

street on the east to the western end of the 5

original Ulman land is too narrow to admit of the turning of teams, and that the outlet provided to Herbert street on

north is therefore essential to the use of MONROE ST.

the alley for its intended purpose as a means of access to the rear of the appellants'

premises for garbage carts, delivery wagons, The lots in question are subdivisions of a and other vehicles.

subdivisions of a and other vehicles. The bill of complaint parcel of land which was formerly owned accordingly charges that the structures in in fee by Alfred J. Ulman, and which com- course of erection by the defendants have prised all of the block shown on the plat, destroyed the easement to which the plainexcept the two lots at the western end. On tiffs claim to be entitled under the grants March 14, 1899, Ulman conveyed in fee the referred to as appurtenant to their respecsouthern portion of his land to Elias A. tive premises

NORTH

22

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20

AVE.

HERBERT
LAND RETAINED

ST.

BYA. J. ULMAN

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