Evans v. Brady
Evans v. Brady
Opinion of the Court
delivered the opinion of the Court.
The bill in this case was filed by the appellees for the specific performance of a contract of sale of certain property, situated in Baltimore city. The appellant refuses to perform his part of the 'agreement because he alleges the appellees cannot make him a good and marketable title. It is contended by him that in the chain of title, the deed from Mary Hixon and husband to Henry Ewing, does not convey a fee, because of the omission of the word “ heirs ” in the granting clause. Prior to the Act of 1856, ch. 154 (Code, Art. 21, sec. 12), the rule of the common law prevailed, and to create an estate in fee simple in a natural person, the conveyance must contain a limitation to such person and his “heirs”; and, subject to a few well recognized exceptions, this was an unbending rule, which would not allow of the use of equipollent words. Handy et al. vs. McKim, 64 Md., 570.
The deed now referred) to was made in 1829, and being-anterior to the passage of the statute, is subject to the rule of the common law. By reference to the deed itself, we find it first sets out the fact, “that Thomas Curtain, by indenture of deed, bearing date on or about the'fifth day of August, eighteen hundred and twenty-six, and recorded among the land records of Baltimore County Court, in Liber W. Gr., Ho. 182, folio 96, for the consideration mentioned, did convey unto Mary Randles, now Mary Hixon, her executors, administrators and assigns, all &c.” (here follows a description of the property), “being the same parcel of land heretofore conveyed by Christopher Walker to the said James Long, by indenture, bearing date the 10th day of May, 1806, and recorded among the land records afore
The deed of Thomas Curtain,, thus referred to, grants to • Mary Bandies, now Mary Hixon, the property in fee. Tbe habendum clause, is as follows: “ To have and to hold the said described premises, with the appurtenances thereunto belonging, unto the said Mary Bandies, her heirs and assigns, to the only and proper use and behoof of the said Mary Bandies, her heirs and assigns forever.”
It is apparent, upon an inspection of Mary Hixon and husband’s deed to Ewing, that the intention of the parties in making and accepting it was to convey to Ewing the entire estate, that was then in Mary Hixon; and it is our duty so to expound it, unless to do so, will violate some well established principle of law. Budd vs. Brooke et al., 3 Gill,234. Now, in Hofsass vs. Mann,74 Md.,406, while it is laid down as an unbending rule, that to create an estate in fee simple in a natural person, the conveyance must contain a limitation to the heirs, in direct terms, yet it is said, “ the omission of the word ‘ heirs ’ may be cured by reference to some other instrument which does contain
Now, in this case the deed from Hixon and wife to Ewing, after making reference to the deed from Curtain to Bandies, as the instrument under which she held title, conveys all the grantor’s “ estate, right, title, interest, term of years to come, property, claim and demand, both in law and equity, of the said Mary Hixon and Joab Hixon, &c.”
Decree affirmed.
Reference
- Full Case Name
- James E. Evans v. Edward Brady, Edward Brady, Jr., and John P. Brady, Trading as Edward Brady & Sons
- Status
- Published