Harmon v. State Roads Commission

217 A.2d 513, 242 Md. 24

• Court: Court of Appeals of Maryland
• Decided: March 16, 1966
• Docket: [No. 49, September Term, 1965.]
• Status: Published

Opinions

Hammond, J.,

delivered the majority opinion of the Court. McWieeiams, J., dissents. Dissenting opinion at page 34, infra.

The State Roads Commission sought to acquire by condemnation approximately two-thirds of a one acre lot in Prince George’s County for use in the building of the Capital Beltway. Claim to ownership of the property was asserted in the proceedings by two sets of claimants, each claiming under a deed from a common grantor. The parties are in agreement that the condemnation was necessary and that the fair value of the land taken plus the damage to the remainder was $5,110.60. The dispute is as to which of the claimants is entitled to the $5,110.60 and the ownership of the one-third acre not taken by condemnation.¹

The contentions of the respective claimants were heard on a stipulation of certain agreed facts and testimony taken in open court by Judge Pugh, specially assigned. The record shows that the real property here involved was bought by William J. Moss in 1938 when he was sixty years old, and a widower, and that he lived there alone until his death in the three or four room house on the lot, which had neither water nor central heat, but did have electricity. He had made a living for years raising and selling flowers and vegetables and doing day work, although in his later years he seemingly had financial assistance from friends, family and the public authorities. One of those for whom Moss had worked was Omar C. Strawn, who was described as a “good friend” and who had contributed to the support of Moss from time to time. Strawn owned property nearby and on November 30, 1944, Moss conveyed his house and lot to Strawn, reserving unto himself a life estate. The stamps on the deed indicated a consideration of $1,000. The deed recited that “* * * in consideration of the sum of ten ($10.00) and other valuable considerations, and also of the payment hereafter by the said Strawn, grantee, of all taxes, assessments if any, and insurance premiums in connection with the improvements on the property * * * Moss, doth grant and convey unto the said * * * Strawn, his heirs and assigns, in fee simple, reserving to himself a life estate as hereinbefore set forth,” the described property, with a usual habendum clause following. The deed was signed “William J. Moss, Widower,” and duly witnessed, acknowledged and recorded.

Strawn paid the taxes or caused them to be paid from 1944 until about a year before his death in 1951 in Florida, where he had gone to live for his health’s sake. It appears that the house became so dilapidated that it was uninsurable soon after 1944. In 1951 the property was advertised for sale for 1950 taxes. The appellants, Flossie Harmon, a daughter of Moss, and her husband, after they had demanded payment of the taxes from Omar Strawn’s son Floyd and had been refused, redeemed the property and continued to pay the taxes each year through 1964 in a total amount of $974.42.

On May 7, 1953, Moss deeded the property to Flossie Harmon and her husband, again reserving a life estate. This deed was signed by an “X”. Moss continued to live in the house as he had done since 1938, until his death in April 1961.

Before the Circuit Court the sons and daughters of Omar Strawn claimed the Moss property in fee simple as heirs of their father, relying on the deed of 1944.

The Harmons urged upon the court that Moss lacked capacity to execute the 1944 deed, that he could not read or write and his signature on that deed was a forgery and that, if the deed were assumed or found to have been his valid act, title had reverted to Moss before he executed the 1953 deed to them because: (1) there was a failure of consideration in the non-payment of taxes and insurance (apparently under a claimed analogy to cases involving confidential relations, agreements to furnish support in return for a deed, and failure to live up to the collateral agreement) ; (2) the estate acquired by Strawn was at most a base, determinable fee which reverted to Moss when Strawn did not pay the taxes; and finally (3) that Strawn’s title was subject to a condition subsequent which caused a reversion to Moss under the facts. Finally, the Harmons said that at the least they should be reimbursed for the taxes they paid from 1951 to 1964, lest the Strawns be unjustly enriched, and the Strawns did not contest this claim.

The contention as to lack of capacity to execute the 1944 deed was abandoned below almost as soon as it was made, presumably because that incapacity, had it existed in 1944, would also have been present in 1953 when the Harmon deed was executed. The issue of forgery was resolved against the Harmons by Judge Pugh’s findings of fact that Moss could write his name and had done so on the Strawn deed. Judge Pugh also found from the evidence “* * * that Strawn did in fact comply in all respects with the agreement as long as he lived,” and held that he had acquired a fee simple title, subject only to the life estate of Moss, and his promise to pay taxes and insurance premiums was a covenant and did not create a condition subsequent or other possibility of reverter. His reasoning was that this Court in Gray v. Harriet Lane Home, 192 Md. 251, 264, upon a review of the Maryland cases, held that (a) “conditions subsequent are not favored in the law, because the breach of such a condition causes a forfeiture and the law is averse to forfeitures”; (b) “* * * when the language of an instrument does not clearly indicate the grantor’s intention that the property is to revert to him in the event it is diverted from the declared use, the instrument does not operate as a restraint upon alienation * * and (c) “* * * no condition subsequent will be implied unless there is a gift over or unless there are words indicating an intent that the grant is to be void if the condition is not carried out.” Judge Pugh found no gift over in the deed to Strawn and reasoned that if words of the deed did not clearly state a covenant rather than a condition, then the meaning was at least doubtful, making apposite the theory of Bartell v. Senger, 160 Md. 685, 689:

“And where the very language out of which * * * [conditions] are said to arise itself raises a doubt as to whether the parties intended them to operate as ‘conditions/ or as ‘covenants/ it will be assumed that their intention was to create a covenant rather than a condition.”

He cited also Stewart v. Redditt, 3 Md. 67, 80:

“We are then asked to say, that unless Marshall, the grantee, ‘performed his part of the stipulation mentioned in the said paper-writing, that then no title vested in him’ by virtue thereof. In the first place, there is no sufficient proof that he did not perform his covenants; but conceding that he did not, the effect of such an omission or breach of contract would not be to avoid the deed. If there was a breach of the covenant, the proper remedy would be an action on the covenant itself.”

Whether Judge Pugh was right in his determination that if the deed from Moss to Strawn was a valid conveyance which had in fact been executed by Moss the title that Strawn took did not revert to Moss because Strawn did not pay or supply the taxes and insurance premiums is not an issue now before us, and we are not called upon to decide it. The appellants may have been persuaded by Judge Pugh’s opinion of the correctness of his conclusions on the construction and effect of the deed and of the improbability that this Court would disagree with him, but whatever their reason they unquestionably waived and abandoned the point on appeal. The appellant’s brief states the questions presented as:

1. Did the lower Court err in admitting into evidence the deed from William J. Moss to Omar C. Strawn dated November 30, 1944?

2. Did the lower Court err in denying the motion for a directed verdict in favor of the Harmons at the end of the testimony offered by the heirs of Omar C. Strawn? [“On the ground that they haven’t proved that the signature on the deed is actually the signature of Mr. Moss.”]

The argument in appellants’ brief is devoted solely to the two questions presented and there is no reference to the matter of the construction and effect of the deed, assuming it to have been a valid instrument. The brief of the appellees is addressed only to the questions posed by the appellants. Each side argued these questions orally, and neither argued the construction and effect of the deed to Strawn. “An appellant can, of course, abandon some of the issues raised below and stand here on a narrower ground.” Weil v. Free State Oil Co. of Md., 200 Md. 62, 66. How this may be done is illustrated in Bishop v. Bd. of Co. Comm’rs, 230 Md. 494, 500, where Chief Judge Bruñe said for the Court:

“One question of law which was raised in the trial court has not been urged on appeal. We therefore do not decide it. Comptroller of Treasury v. Aerial Products, Inc., 210 Md. 627, 644 * * *; Mullan v. Mullan, 222 Md. 503, 506 * * *; Baxter v. State, 223 Md. 495, 502 * * *; Hyde v. State, 228 Md. 209, 218 * * *. Cf. Maryland Rule 846 f. That question was the validity or invalidity of the Acts of 1957, Ch. 712, § 1113 (d) * * *. The trial court held this provision unconstitutional. The appellants do not challenge this holding and we, therefore, do not pass upon it.”

The holding in Bishop was not new. See State v. Cavey, 173 Md. 445, 447: “Counsel for appellant confined their argument to the exception relating to the rulings upon the prayers, hence the remaining exceptions will be treated as abandoned.” The same principle has been applied in a very late case, Myers v. Chief of Fire Bureau, 237 Md. 583, 590. Chief Judge Prescott said for the Court: “No question on appellant’s prayer for a writ of certiorari was pressed or argued in his brief. The point was abandoned. Maryland Rule 831.” In State Roads Comm. v. Halle, 228 Md. 24, 31, the Court stated:

“The record sustains the fact that this motion [to strike testimony of experts as to an important theory of appellant’s case] was made and denied.

“But neither under this heading [statement of facts in appellant’s brief] nor the heading of ‘Argument’ in its brief does it present any argument in support of its contention on this point, nor do the appellees deal specifically with the question. Under these circumstances, we conclude the point has been waived. Maryland Rule 831 c 4; cf. Fid. & Dep. Co. v. Mattingly Lumber Co., 176 Md. 217, 220 * * *; Comptroller v. Aerial Products, 210 Md. 627, 644 * *

See also Hyde v. State, 228 Md. 209, 218:

“Maryland Rule 831 (subsections c 2, and c 4) provides that appellant’s brief shall contain ‘a succinct statement of the questions presented separately numbered,’ and ‘argument in support of the position of the appellant.’ Appellant’s brief contains neither in respect to the matter now under consideration, and we have held that a question not presented or argued in appellant’s brief was not before the Court of Appeals, although it was brought to the attention of the Court during argument.”

The proposition is restated in Nutter v. Non-Profit Housing, 230 Md. 6, 17, cited in Dessel v. Goldman, Jr., 231 Md. 428, 430-31 :

“However, the question of the propriety of the allowance of costs was not presented as a question or argued in appellant’s brief, and we do not consider it to be before us for review. Maryland Rule 831 c 2, 4.”

Nutter v. Baltimore, 232 Md. 210, 213, elaborated on the rule and gave illustration of some of the underlying reasons for its application:

“Appellants apparently misunderstand why the point was not ‘before us for decision.’ * * * It was because of their failure, through lack of diligence or deliberate and considered action, to present it to the Court properly. Although the above mentioned contention was not specifically ‘before us for decision/ the only reason that it was not was the fact that appellants by failing to raise and argue it in their brief waived the same. Maryland Rule 831, 831 c 2, 831 c 4 * *

See also the cases cited in 2 Maryland Law Encyclopedia, Appeals, Ch. 15, under the headings “Scope of Review in General,” Part E, “Error Waived on Appeal,” § 401, “An error committed in the lower court may be waived on appeal either expressly or by implication,” and § 402, “The failure on appeal to discuss or urge an objection made, or an error committed, in the lower court will be considered as a waiver or abandonment thereof.”

We turn to consideration of the points properly presented for decision on appeal—that the deed from Moss to Strawn should not have been received in evidence because it was a forgery and that the Circuit Court should have so ruled at the conclusion of the case presented in behalf of the Strawn heirs. Neither contention has merit.

The introduction of the certified copy of the Strawn deed, an instrument duly recorded as required by law, presented to the trial court prima facie evidence of the genuineness of the instrument and cast upon the Harmons the burden of going forward and persuading the court that the purported conveyance was not the valid act and deed of Moss. See Classen v. Classen, 57 Md. 510; Hutchins v. Dixon, 11 Md. 29; Warner v. Hardy, 6 Md. 525; and Craufurd v. The State, 6 H. & J. 231.

The Harmons attempted to meet their burden by offering testimony that Mrs. Harmon’s father, Moss, could not write, and by showing, as one of the Strawn sons agreed, that Moss was generally considered illiterate. Judge Pugh found that the testimony established that Moss was illiterate, and in his later years could not sign his name except by making an “X” but he also found that Moss could write his name in his earlier years and that the deed to Strawn in 1944 in fact had been signed by Moss although he said his signature appears to be the signature of “* * * a feeble, illiterate or unsure man.”

The Strawns had presented to the court evidence that Moss had executed a grant of a right of way to the Consolidated Gas, Electric Light and Power Company of Baltimore in 1939, which bore the signature “William J. Moss” and was duly witnessed, acknowledged and recorded, knowledge of which had come to them only on the morning of the trial. Judge Pugh suggested that the original instrument or a photostatic copy thereof be procured from the Gas Company and given the court for comparison of the signature thereon with the signature on the original Strawn deed, which the Strawn heirs offered to the court for such comparison. The Harmons did not object to this and did not seriously contend that Moss had not signed the 1939 instrument. Judge Pugh later made the comparison and was satisfied that the same person had signed both the 1939 grant and the 1944 deed and that that person was Moss. Both signatures were before us and we cannot say that Judge Pugh’s findings of fact were clearly erroneous.

Inasmuch as the Strawns had offered to the court a certified copy of a deed purporting to vest fee simple title in their ancestors and the parties had in effect agreed that an inherently valid signature of Moss would be made available to the court as a basis for comparison of the challenged signature on the 1944 deed before the case was decided, there was no error in denying the Harmons’ motion for a directed verdict at the conclusion of the last live evidence offered by the Strawns.

In his original order dated February 2, 1965, Judge Pugh declared “* * * that the title to the property described in the deeds filed in this case * * * is hereby declared to be the property of the heirs of Omar C. Strawn * * and in a supplemental opinion and decision, dated February 15, 1965, he ordered :

“* * * that the sum of $5,110.60, deposited (or to be deposited) in the Registry of this Court be, and the same is hereby declared to be the property of the heirs of Omar C. Strawn, subject to the payment to the Washington Suburban Sanitary Commission of the sum of $360.60 for the redemption of its front foot benefit assessment, and further subject to the re-payment of the sum of $974.42 to Flossie M. Harmon and Mark A. Harmon, the said Opinion and Decision to remain in all other respects unchanged * *

Both of these orders will be affirmed.

Orders of February 2, 1965, and February 15,1965, appealed from, affirmed, the heirs of Strawn to pay the costs.

1 . This third of an acre was sold by the County at a tax sale in 1964, after the taking of the other two-thirds, and was bought in by the attorney for the appellants for his clients.