
    MARYLAND STATE FAIR, Incorporated, vs. BASILICUS H. SCHMIDT et al.
    
      Deeds for Purpose of Partition — Effect of Recitals — Disclaimer.
    
    In construing the recitals in a deed, the primary object is to ascertain and give effect to the intention of the parties, where that can he done without violating any principle of law, and that intention may be gathered from the language of the entire deed. , p. 621
    
      Where the import of the language of a deed is doubtful, and the intention can he reached in no other way, it should he construed against the grantor and in favor of the grantee, p. 621
    To ascertain the true meaning of a deed the situation of the parties and the circumstances attending the execution may he considered. p. 621
    In the case of conveyances by a trustee to each of the various persons interested in a tract of land, a recital in each conveyance that the grantee therein was willing to accept the portion so conveyed as his or her “full share” of “said real estate,” held not to involve a disclaimer by such grantee of all interest in a residuum of the tract, which was, partly as a result of mistake, unallotted, and so not included in any of such conveyances, the preferable construction being that “said real estate” applied only to the total acreage actually allotted, excluding the unallotted residuum, which was at the time practically worthless. pp. 621-624
    
      Decided February 26th, 1925.
    
    Appeal from the Circuit Court for Anne Arundel County (Pakke, O. L).
    Action by Basilicas H. Sbhmiidt and others against the Maryland State Fair, Incorporated. From a judgment for certain of the plaintiffs, defendant appeals.
    ' Affirmed.
    The ciarase was argued before Bonn, O. L, Ubwbr, Adkihs, O'beutt, Digges, and Walsh, JJ.
    
      C. Alex. Fairbank and Frank B. Ober, with whom ware Ogle Marbury and Janney, Ober, Slingluff & Williams, on the brief, for the appellant.
    
      Washington Bowie, with whom were Stephen W. Gambrill and Gamer W. Demnead on the brief, for the appellees.
   Offutt, J.,

delivered the opinion of the Court.

Being seised ias tenants by the entireties of a tract of land, containing about one hundred and twenty-two acres, in Anne Arundel County, near the present location of the Laurel race track, Adolph. Schmidt and Louisa his wife, on July 24th, 1888, joined in a deed conveying it to* Louisa Schmidt, the wife, in trust to hold, use, occupy, and enjoy it during her life upon.the payment of taxes, and at her death, upon their payment of certain ‘Charges aggregating nine hundred dollars against the property, the grantors conveyed the home and ten acres surrounding it to Kate Schmidt, wife of Jonah Boyle^ a daughter, and eighteen acres to Augustus, a son, and the remainder in equal shares to their *ofber children, Mary S. S. (the wife of O. Wesley Jess), BasiMeus, Alexander Oscar, Emma (the wife of John S. Boyle), and Henry, subject to a privilege reserved to* Adolph to occupy during his life, upon certain conditions, a part of the property.

Alexander' renounced the provision for him in the deed and his interest was acquired hy Augustus. The other children paid off the charges against the property, and in 1895 the trustee and life tenant, acting under a power contained in the deed, agreed with the remaindermen to* allot and grant to them certain portions of the property, .and accordingly, to carry -out that .agreement, .they had the property surveyed. Prior to the survey the parties in interest had agreed that Wilhalminia Katherine, also called Ka,ta, Schmidt should receive an equal share with the other children, and the surveyor was directed to apportion .the ¡property which they then believed contained 118 .acres, so as to give to Gustave, also called Augustus, 18 acres., and to each of the other children who took remainders tinder the deed of trust 16.6 acres. The survey, however, disclosed the fact that the tract contained 122 acares, but when the parties were informed of that fact, the ¡surveyor had already platted the property, setting off 18 acres for Augustus and 16.6 acres for each ■of tine other .children, and ¡a residuum .of 4% acres was left as an unallotted parcel on the plat. It was then agreed that, rather than incur the expense *of a resurvey, deads would be prepared .allotting and conveying the property in .accordance with the plat and the descriptions which the surveyor had prepared, and that was accordingly done.

On February 10th, 1896, Louisa Schmidt, trustee, and Adolph Schmidt conveyed to- Augustus in fee the 18 acres given him hy the deed -of trust, and later he was granted Alexander’s part, which fully satisfied all his claims -against the estate, .and he thereafter -had no further interest in it. On April 12tjh, 1891, the s-aonie parties, with -all their children hut the grantee, joined in a deed conveying to- Wilheimina K. Schmidt 16.6 acres in lieu of the- 10 acres given tp-'he-r by the deed, and which she -accepted in lien thereof, so that that grant fully satisfied the provisions made for her in the -deed -and she had no- further interest in th-e remaining property. The remaining lot®, containing 16.6 acres-, were then conveyed by several deeds- respectively to Henry, Basilicus, Emma, and Mary. By these deeds- the entire tract was. conveyed in fee to- .the several -children of Adolp-h and Louisa Schmidt (excepting Alexander) who took remainders- under the deed! of trust, -excepting the 1-ot of 4% acres, which i-s the sub ject matter* of this proceeding. Manifestly, unless the life tenant and remaindermen had united in some disposition of that lot, the title to it remained in them -as tenants in common, and that is the theory for which the appellees contend in this case.

In 1902, Louisa Schmidt as an individual conveyed that 4y2 acre lot. te Emma J. O. Boyle, trustee, from whom by various mesne conveyances the -claim of the appellant in this case is derived, -and it asserts that the- appellee® are esto-p-ped' by certain recitals in the partition deeds from claiming any interest in that lot, -and these two- contentions present the is-srae in this case.

Under the deed from Louisa Schmidt to Emm-a J. C. Boyle, trustee-, the grantee held the property in trust for her own use until -her daughter Irena should attain the age of eighteen, and then for the use -of her daughter until she should become twenty-one years old and then to: her in fee. Irene -siibsequently married Julian Studds o-f Del Ray, Virginia, -and o-n May 29th, 1911, -she united in a deed conveying such interest as -she had in the 4% acres to- one Samuel L. Hopkins, who appears to have been, acting as agent for tibe Laurel Four County Fair Association, which needed it to cany out a plan for increasing tikei size of its track. Ho.p-kins promptly conveyed) the property to the race track company, of which the appellant 'here is the successor, and it has also .acquired .and holds the interest of Emma J. O. Boyle in the whole property.

There is some conflict, in the evidence ,as to whether the race track company or its privies had actual notice at the time it acquired the 4% acre property, or befare it improved it, that any of the appellee® claimed an interest in it, but there is some testimony that it did have such notice.

It i® -agtreed in the easiei that the fair value of the racing franchises, real eistate and improvements, and other property-owned by the appellant, is $750,000 and that its race track crosses a part of the land in question.

On September 1st, 1922, B-asilieus H. Schmidt and others, claiming an interest in the 4% acres under the deed of trust to Louisa Schmidt, brought an action in ejectment in the Circuit 'Court for Anne Arundel County against the appellant for the possession of that tract of land. That case in due course was tried before the court sitting .a® a jury, and at the conclusion of the trial a judgment wia® .entered for Basilieus H. Schmidt, Mary L. Jess and Henry Schmidt for three-fourths undivided moiety of the property described in the decía,nation, for one dollar .damage®', and easts, and from that judgment the present appeal was taken.

The defendant offered twenty-two prayer®. The court granted five and rejected seventeen of these prayers, and granted a special instruction of itsi own. Without discussing them in detail, it is sufficient to say that, if the appellees were entitled to recover at all, the granted prayer's correctly stated tihe law and submitted the case (fully and fairly to the court sitting as a jury. The real and controlling. question in the case is presented by the action of the trial court in refusing certain prayers of the defeudant, which rested on one of these propositions, that by accepting the partition deeds the several grantees named in them disclaimed any interest in the 4% aere residuum, and were thereby barred from recovering any such interest in this action, or that the recitals in those deeds characterized the possession by Louisa Schmidt ¡the trastee as adverse. Since the correctness of those rulings and indeed the case itself turns upon the construction given the several deeds of partition, we will now examine and compare so much of the language contained in them .as is material to this inquiry.

A recital in the dead from Louisa Slehmidt, trustee, and her husband, for 18 acres', to Gustave contains this language:

“And whereas the said Gustave Schmidt, her son, has paid his one-seventh párt, the sum of one hundred and thirty-three dollars ($133.00), and the said Louisa Schmidt desires to convey said 18 acres hereinafter particularly described to said Gustave Schmidt clear of her life estate and all claims and incumbrances whatsoever, the mortgage therein mentioned • having been paid and released, the judgment paid and satisfied and the other debt which was due said Louisa Schmidt having also been paid as to said Gustave Schmidt’s share.”

The recital in .the deed conveying 16.6 acres to- Emma T. Si.' G. Boyle contains this' language:

“Whereas * * * certain real estate was conveyed to the said Louisa Schmidt in trust and among other trusts that she might at any time convey to any one or more of his children his, her or their share of said real estate upon payment by any one or more of them of his, her or their share or part of certain indebtedness in said deed named. And whereas. Emma T. S. 0. Boyle, her daughter, has paid her one-seventh part or share of said indebtedness, being the sum of one hundred and thirty-three dollars, a.nd the said Louisa is desirous to convey to her the part or portion of the real estate aforesaid to which the said Emma is entitled free and clear of her life estate therein. And whereas the said Emma T. S. C. Boyle is willing to accept the part or portion of said real estate herein described and intended to be hereby conveyed to her as her full share or portion of said real estate, and whereas it is the intention of the other children of the said Louisa Schmidt herein named and the wives of the sons to join herein with their father, the said Adolph Schmidt, to convey to the said Emma T. S. 0. Boyle the hereinafter described, portion or part of said real estate as her part or share thereof free, clear and discharged of any or all claims by or from any or either of them.”

And the recital® in- the deeds to Basiiliena, Mary, and Henry are identical in form wiith that last mentioned. The recital in the deed to Wilhelmina, who received 6.6 acres more than that mentioned as her part in the deed of trust to Louisa, after reciting that she had paid her proportion of the indebtedness, continues as follows:

“And the said Louisa is desirous to convey to her the portion or part of the real estate aforesaid which is herein mentioned and described as her said Wilhelmina’s part thereof free and clear of her said Louisa’s life estate therein. And whereas by the deed aforesaid there was apportioned to the said Wilhelmina 3L Schmidt only the amount or number of ten acres of said real estate. ' And whereas the said grantors herein are desirous that the said Wilhelmina should share equally with the other children in the division of the real estate aforesaid; and whereas the said Wilhelmina K. Schmidt is willing to accept the part or portion, of the said "real estate herein described and intended to he conveyed to her as her full share or portion of said real estate.”

Upon comparing! these deeds, -all of which collectively were designed to' effect a single ipilaca or purpose, it is found that, in the dead conveying (the 18 .acres to Augustus or Gustave, the property conveyed is described a® the “small house 'and 18 .acres of land1” referred to in the deed, while in the dead to Wilhelmina the property conveyed is described as “the portion or part of the real estate aforesaid which is herein mentioned: and described as her * * * part thereof,” while in the recitals in the deeds to' the other children the land conveyed was described as “the part or portion of the real estate aforesaid to' which the said” grantee was entitled.

The reason for this difference was no doubt that .whereas Gustave received! exactly whiat the dead of trust gave him, and Wilhelmina received more than that deed gave her, the others were entitled as .tenants in common to' the residuum left after the subtraction of those two interests, and the language employed clearly indicated that' the purpose of the deeds conveying 16.6 acres each respectively to Basilieus, Henry, Emma and Mary was to convey to' them the part or portion of the whole residuum to which under the deed of trust to Louisa they were entitled, and it is equally clear that it did no such thing, because each of them was entitled to receive about three-fourths of an acre more than was conveyed by those deeds. And when the meaning of the recital that each of the last mentioned children “is willing to' accept the part or portion of said real estate herein described and intended to be hereby conveyed to her as her full share or portion of said real estate” is considered, it must be considered in connection with the recital that the grantors, intended to convey to: such grantees the whole part of the residuum to> which they respectively were entitled under the deed, 'and it must also be noted that Louisa Schmidt individually was not a party to any of these deeds and that they were deeds poll.

So that the contention of the .appellant amounts to this, that by .accepting the deeds, conveying to them each 16.6 acres the appellees in this case waived, released, or discharged any interest in the 4% acres which wais mot specifically described in the deeds, in favor of a person not named in them either as grantor or grantee. It may be noted too, in connection with that contention, that bad the owners thereof intended to convey to. Louisa Schmidt a® an individual the 4% acres, there was no apparent reason why they should not have done so by a deed, as it outlines were shown by courses and distances on the same plat on which the -outlines of the other lots were indicated.

An examination of the recitals in the deeds to Basilieus, Henry, Mary, and Emma discloses an obvious conflict between the recital of the intention of the trustee and the recital as to the intention, of .the grantees, for whereas the former state® that the trustee desired to grant the part or portion of the real estate to which the gpamtee was ‘entitled, which was approximately 17-1/3 acres, the latter stated that the grantee was willing to accept the part described in the deed, which is 16.6 acres. The question therefore occurs, did the parties intend that the grantees should receive less than the grantors intended to grant. In construing these recitals our primary object should be to ascertain and give effect to the intention of the parties, where that can be done without violating any principle of la,w and that intention, may be gathered from the l>anguag|e of the 'entire deed (Buchanan’s Lessee v. Steuart, 3 H. & J. 329), ,and in such an inquiry, where the import of the language is doubtful and the intention can be reached in no other way, it should be construed against the grantor and in favor of the grantee. Zittle v. Weller, 63 Md. 190. And to ascertain its true meaning the situation of the parties and the circumstances attending; the execution of the dead may he -considered.. Brown v. Reeder, 108 Md. 653; Chesapeake Co. v. Goldberg, 107 Md. 488; Roberts v. Bonaparte, 73 Md. 199.

The appellant omtends very ably and ingeniously that the appellees meant to disclaim their interest in the 1% .acres, but, considering the facts in the light of the principle® we have stated, we cannot agree with that contention.

When we consider what all the parties wer'ei engaged in doing, what it was they were dealing with, and what plan they were ‘executing, there can be no real doubt as to their intention. They were dealing with an entire tract of land containing 122 -acres. They believed, however, that it contained but 118 acres, and, believing that, they ■ apportioned it so- as to divide among themselves 118 acres, which they believed was the whole tract. That apportionment was based in part .and for the greater part on tbe language of tbe deed of trust to' Louisa, because under that deed five of the grantor’s children -held the title to the balance of the tract left after the subtraction of the shares of Augustus and Wilhelmina, subject only to the life estate of Louisia and ■the privilege reserved to Adolph. Tbey desired to allot immediately to each one entitled the share which he or she would possess at the death of the life tenant, and to' free each part granted from the interest of the life tenant, .and 'of Adolph and of .the interest which each of the children (other than the one to> whom it was allotted) had to it. When therefore we come to' consider the meaning of the words constituting the so-called disclaimer we must consider that langiu'age in connection with these circumstance®.

Tbe first striking circumstiance is that it runs in favor of no named person; it is, if it is anything, at large, and to find a beneficiary wa 'must resort to implication and arbitrary rales. We must assume that the cestuis que trust, if they intended to ¡surrender it to. ¡any one, intended tio< surrender to their original grantors the 4% acres, although they expressed no such intention, because we could not assume that they intended! to surrender it to the life tenant. In that capacity she was mot ¡a party to the deads. Nor could we asisume that they intended to surrender it to the trastee, without some clear expression of such an intention, because the general rule is that a trastee shall not take beneficially from the cestui que trust. Perry on Trusts, par. 19b. So that if the cestuis que trust .intended to disclaim or repudiate ¡the gift of 'the 4% acres, they 'could only have done so¡ for the benefit of the grantors, .and if we could admit that they succeeded in doing that, .the title to the 4% acres remained in Louisa 'and Adolph as tenants in common, for when the partition ¡deeds were executed they bad been divorced a vincule et matrimonii. But it is. dear that tbey .did not intend to ¡do tibat, because it is nowhere suggested, either by the deeds or the testimony, that they desired to benefit Adolph or that he desired 'any pant of the 4% acres. It is •suggested without any apparent foundation in fact that the appellees and the others then in interest desired to give this 4% acres to Louisa to compensate her for her life estate, but that suggestion is obviously unreasonable. It is incredible that -any competent conveyancer would have failed to express so important an agreement in the deeds of partition if there-had been one, and it further .appears that, after having paid off the mortgage indebtedness once, the children at the time the 118 acres was divided paid the amount of it to their mother again, which in itself would have been some compensation for her life estate.

In our opinion, therefore, the recital in the .several partition deeds to the .appellees, that they accepted the land described in them as their “full share” of “said real estate,” applied only and was limited to> the 118 acres with which the parties' were dealingi, and wasi not intended to and did not relate to the 4% acre tract. As we have .already .stated, when the excess .acreage was discovered .the survey had already bean made in accordance with a division based upon an erroneous idea of the number of acres in the tract. To have resurveyed it would not only have been expensive, but if, as indicated in the appiellant’si brief, the 4% 'acre lot was-practically worthless, a redivision based upon the true' acreage would also have necessitated an appraisal of the whole property, because one of 'the lots, would have included the worthless. property. A more convenient and equitable method would have been the one adopted, to> divide the improved land, and to let the title to the unimproved land remain as an entirety in 'those entitled to the whole tract. And for the reasons stated wa concur in the following Anew expressed by the trial court: “As the unit of partition was the .surveyed 118 acres, and as none of the deeds conveyed any portion of land other than those forming this unit, and as each part of this unit wals to he held in severalty after this voluntary partition by virtue of every grantee on his part relinquishing all claim to every other part which was conveyed to ibis former ootemant in common, from this particular xm.it of 118 acres as 'laid off by survey, it mu'st follow that the recital in the dead® relied on by the defendant i® confined 'and -limited to the -surveyed 118 acre®, the unit of partition, and did not -affect the remaining undivided parcel of four .and one half 'acre® of land of which no mention is made in the deed® -and which constituted a distinct unit of land, iand which was not attempted to be divided.”

It follows that we find mo error in the- refusal -of the several prayers referred to.

The -only -other prayers- to- which it is necessary to- refer particularly .are the -defendant’® thirteenth 'and fifteenth prayers, which are based upon tbe theory that after executing the several deeds of partition Louisa, held the 4% -acre tract -adversely -a® a necessary consequence of the recitals in -those deeds'. The premise of that conclusion is that when Louisa agreed! to surrender her life estate she annexed to that agreement a 'condition that the beneficiaries should waive or surrender their interests, in the 4% acres. There is no evidence in the record in ¡support of that premise, and the condrasion based on it mulslt therefore fail, 'and it becomes unnecessary to -discuss the legal principiéis involved in it. We have gone -over the remaining prayer® very carefully .and have been unable to discover any error in tbe ruling® as to them, nor .are there any errors apparent in the seven exceptions relating, to the court’s rulings upon matter's of 'evidence.

Finding no errors in the rul-ings involved, iu the exceptions in this case, the judgment appealed from will be 'affirmed.

Judgment affirmed, with costs.  