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But where there are several grades in the offence, and the first indictment charged a minor or inferior grade, and a conviction of the major offence could not have been had under it, then a conviction or acquittal of the minor under the first indictment does not bar a sec. ond indictment for the major offence;21 although, as suggested in the principal case, the prosecution should not be allowed to experiment towards securing a conviction by using the same proof for a series of progressive offences.

H. CAMPBELL BLACK.

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Court of Appeals of Maryland, June 23, 1886. If, by the express terms of a deed,conveying land to a religious society for use as a burial ground, it was the intention of the parties to dedicate the property conveyed to the uses therein specially declared, neither they, their heirs, the cestuis que trust, nor the lotbolders, have any right to divert it from those uses, and the employment of covenants of warranty in such a deed will not enlarge the powers of the parties claiming thereunder.

2. In equity a purchaser will not be compelled to take a title which is not free from reasonable doubt, and which might in reasonable probabilities expose him to the hazards of litigation.

John Cornthwait and Gerard Hopkins, dated the nineteenth day of June, 1773. The consideration is “thirty-five pounds and four shillings," and the conveyance is made to John Cornthwait and Gerard Hopkins, “their heirs, executors, and administrators." The habendum clause is :

“Unto the said John Cornthwait and Gerard Hopkins, their heirs, executors, administrators, or assigns, for and to use of and purpose following; that is to say, for the use of the society of Christian people called Quakers, inhabiting and dwelling in and near the town and county of Baltimore, in the province aforesaid, to inclose and keep the same for a burying place to bury or inter those of the same society that may from time to time depart this transitory life, and also to erect or build a meeting-house for the same society of people, for the public worship of Almighty God, or such other improvements as they, the said society, may think proper,” etc.

To this deed was added a covenant of the grantor that he was seized in fee, and had right to convey, and of warranty against all persons.

The other deed, marked “G," is from John Deaver to John Cornthwait and Gerard Hopkins, and their heirs, executors, and and administrators, and is dated the twenty-first day of June, 1773. The consideration of this deed is £18 11s. The habendum clause of this deed is in the following language:

“Unto the said John Cornthwait and Gerard Hopkins, their heirs, executors,administrators, for and to the use of and purposes following: that is to say, for the use of the society of Christian people called Quakers, inhabiting and dwelling in and near the town and county of Baltimore, in the province aforesaid, to inclose and keep the same for a burying place to bury or inter those of the same society that may from time to time depart this transitory life, and also to erect or build a meeting-house for the same society for the public worship of Almighty God, and other business concerning the affairs of the said society of people called Quakers, according to the custom and manner used and practiced by the said society and people called Quakers, and to, and for no other use, intent, or purpose whatsoever," etc.

To this is added a covenant that if the land is taken away by due course of law” the grantor and his heirs will make good all damages the said John Cornthwait and Gerard Hopkins, and their heirs of the society, shall sustain by the recovery of the same aforesaid.

It appears that the title of John Deaver to the land conveyed by the immediately preceding deed was regarded as defective by reason of the nonrecording of the deed to him; and on the ninth day of March, 1786, the heirs of Thomas Sligh, the grantor, by deed marked "H” in the record, executed a deed of confirmation for the property to Jobn Deaver, only son and heir at law of John Deaver, the grantor in deed marked “G," which deed of confirmation was to John Deaver, bis

Appeal from circuit court of Baltimore.

E. Otis Hinkley and Fred. W. Story, for appellant; M. A. Mullin, for appellee.

IRVING, J., delivered the opinion of the court.

This is a special case stated, wherein all the facts are agreed upon and filed, instead of a regular bill for specific performance. The only question for determination is whether the appellant has a good title to the property which the appellee has agreed to buy as and for a good marketable and sufficient” title. Upon the case stated that question was submitted to the circuit conrt of Baltimore city, with right to appeal reserved. The circuit court decided the title was not “good and marketable," and decreed that the case stated should be dismissed. From that decree appeal was taken.

The real estate which is the subject of controversy is part of a tract of land which was conveyed in trust for the use of the society of Christian people calling themselves Quakers inhabiting and dwelling in and near the town and county of Baltimore. The appellant derives whatever title it has through two deeds conveying the property for the use already stated. One, which is described as Exhibit F. is a deed from Andrew Stigar to

heirs, forever, to the only proper use and behoof mense conveyances, the appellants have acof the society of Christians known and distin

quired their title. guished by the title "friends,” and now in posses Now, it is very clear that if these original deeds sion of said society, their successors and assigns,

did not convey an indefeasible title, and that in forever. To this is added a covenant of warranty

consequence of the diversion of the property from against all persons claiming under them.

the uses to which it was conveyed, any reverter By chapter 20 of the Acts of 1793 the legislature, thereof would occur to the grantors and their beirs referring to and reciting the provision of the bill at law, then the act of 1852 would not have the efof rights that no religious society should hold fect of diverting vested rights of individuals, and more than two acres of land without the leave of thus make the alienation pursuant to the act of the legislature, and reciting the application of the 1852 effectual in confirming a good and indefeasiQuaker society for an act making it lawful for ble title. The original conveyances, which have them to hold phe property, made it lawful for the been recited, conveyed the property for certain society to hold the lots hereinbefore described. specified uses of certain Christian people, and for But that act, by its ond section, saved all and no other use whatever. The act of 1793, (chapter every person their several and respective rights; 20,) which assented to the holding and use by and by its third section described the uses to such Christian denomination, confirmed its assent which the property was to be put, and to which to a holding for the uses named, and in express the legislature assented, and added, “and for no terms saved all individual rights, which would other use or purpose whatsoever.”

embrace the reversionary rights of the grantors Subsequently to this act assenting to the hold and their heirs if they had any. A second act of ing of this property by the Quakers, Gerard Hop- assembly was passed for the benefit of the same kins, the last mentioned John Deaver,son and heir

society, and the same property in 1812, being chapof the first named John Deaver, and divers other

ter 158 of that year's enactments. That act seems, persons, united in deed to Gerard Hopkins, Isaac by its recitals, to have been made necessary by Tyson, John Dukehart, and John Trimble, of

the death of some of the trustees, and was for the Isaac, their heirs and assigns, forever, of all that

purpose of naming others, and vesting in them property for the uses and purposes therein men

the property. It does so for the same uses and tioned. That deed was dated the fourth day of April,

purposes as are mentioned in the act of 1793, 1800; and the habendum clause was that all those

(chapter 20,) and for no other purpose whatsopersons named as trustees should hold the prop

ever, saving to all and every person their several erty in trust for the use of the society of people

and respective rights. called Quakers, according to the tenor of the act of The same reasons which induced the passage of the general assembly of Maryland passed at No this act of 1812 appear to have caused the passage vember session in the year 1793, entitled "an act to of the act of 1821, (chapter 130,) for the benefit of confirm the title of certain lots of ground to the the same body of Christians, and respecting the society of people called Quakers in Baltimore same property. This appears by the preamble town, whereon is their meeting house and thereof. It seems also to have been designed to burying ground,” and for the uses and purposes settle some controversies respecting the extent of in the said act expressed and contained.

burial in the lot, and wliit parts were subject to The act of the general assembly of 1852, (chap- that use. This act, by its sixth section, makes ter 268,) after reciting in the preamble that John

this provision: “That nothing herein contained C. Turner, Isaac Tyson, Jr., William Riley. John

sball authorize, or in any manner empower, any Brown, and Joseph Matthews held certain lands

of the aforesaid trustees, or their successors, to for the purpose of a burying ground and meeting

sell or dispose of any of the property vested in house by the society of Friends or Quakers ap

them by this act." Thus it appears to have been pointed agreeably to the provisions of the act

the design of both the deeds, and the laws sanc1821, and that certain portions of land were unfit

tioning the holding under them, to confine the for the object intended, proceeds to anthorize the

holding, and the assent to the holding, tv a boldsale of such portions, or the lease thereof, and the

ing for the expressed uses of burial and church application of the proceeds to the inclosure and

purposes. improvement of the remainder, and the purchase

In Reed v. Stouffer, 56 Md. 253, this court in of other burying grounds elsewhere. Under the passing upon the rights of certain German Bapsupposed authority and protection of this act, the tists called Dunkers to have certain property held trustees on twenty-first of June, 1855, leased the in trust for them for burying ground, under a ground now involved, to Charles W. Roback for deed from John E. Howard, said: 99 years, renewable forever, reserving a yearly “By the express terms of the deed, it was the rent of one cent, with a covenant to convey the intention of the parties to it, to dedicate the lot fee on request to him or his assigns. This lease,

conveyed to the uses therein specially declared; Roback assigned to Jesse Marden, Eliza Whit and neither they, their heirs, the cestuis que trust, manan, and Edward W. Robinson, and their ad nor the lot holders, have any right to divert it ministrators or assigns, and on request of Roback from those uses. The fact that a valuable considthe fee was conveyed to them, and from them, by eration was paid for the grant can make no differ

ence.

The estate conveyed and granted in express and exclusive terms cannot be enlarged by the amount of consideration paid. Where uses are declared, they are to be had correspondent to the consideration. 2 Fonb. Eq. $ 4, notes and authorities there cited. And it certainly cannot be inferred, from the amount of consideration paid, that the grantor intended to convey an estate which the grantees were expressly prohibited by the thirty-fourth article of the declaration of rights from taking; that article declaring void all gifts and conveyances of land to religious societies except not exceeding two acres on which to erect a building for divine worship, or to be used as a place for the burial of the dead. It is manifest that neither the original trustees named in the deed of 1818, nor their heirs, nor the lot holders, have any right to have the lot sold, and the proceeds distributed among them, or any of them. It must be held and used in strict conformity to the terms of the deed by which it was conveyed, and for the uses therein specially declared. Should it be diverted from those uses, the terms of the deed under which alone it is now held would be yiolated, and the heirs of Gerard Howard would immediately become reinvested with title to the lot."

The appellee contends that this case of Reed v. Stouffer is decisive of the question at issue here, and fully establishes that the appellant has no such title to the property proposed to be sold to appellee, as a court of equity will compel him to take. On the other hand, the appellant contends that there is an important element in this case, which is wanting in the Stouffer case, which makes a material distinction between the cases. In these deeds of 1773 and 1786 there are covenants of seizin and of warranty which appellant con. tends operate to negative any restriction which might be inferred from the uses set forth in the earlier portions of the deeds. The language of the covenants of warranty include these words:

"For himself, and his heirs and assigns, doth covenant and grant to and with the said John Cornthwait and Gerard Hopkins, their heirs, and assigns, and the society of people called Quakers, that he, the said Andrew Stiger, and his heirs, will, well and truly,warrant and defend the same," etc.

It is contended, that the use of the word "grant” in the covenant gives it additional force, and operates to pass an estate in fee withoue restriction, and that the warranty effectually estops the heirs of the grantor from attempting any disseizin. No rule is better settled than that contended for by appellants: that the intention is to be gathered from the expressions of the whole instrument, and that it is to be construed most beneficially for the grantee. But, following it, we cannot draw the conclusion contended for by appellant. Guided by that rule, we find nothing in the deeds outside the habendum clause to justify the conclusion that any other estate or different estate

was designed to be conveyed than that which is so expressly designed in the habendum of deeds. The uses are clearly and distinctly set forth, and in one of them the words and for no other use whatever” are added; thereby expressly excluding the idea that a larger estate was intended to be granted. In addition, it may be said, as was said in Stouffer's case, 56 MU. 253, that it cannot be supposed an intention existed to grant what the cestuis que trust could not take under the prohibition of the declaration of rights. The covenant is to be construed with reference to the estate and interest which is described as conveyed, and wbich the habendum clause limits; and the allegation to assure which is thereby created can, and should only be held to be an allegation to assure the precise istate granted in the deed, and nothing more. Being co-extensive with the estate granted, it ceases when that ceases. This was the view maintained in Zittle v. Weller, 63 Md. 190. No authority is there cited, but abundant authority exists. In 2 Co. Litt. 385b, it is said: “But a warranty, of itself, cannot enlarge an estate; as, if the lessor by deed release to bis lessee for life, and warrant the land to the lessee and his heirs. yet doth not this enlarge bis estate." The same statement of the law is made in 1 Shep. Touch. 182. In Rawle, Coy. 415, it is said to be a familiar principle that warranty will not enlarge an estate. Warranty is a defense, and not a.title. 1 Shep. Touch. 181, 182; Hurd v. Cushing, 7 Pick. 169; Adams v. Ross, 30 N. J. Law, 509, 510; Register v. Rowell, 3 Jones, (N. C.) 312. The introduction of the word “grant” into the covenant connot enlarge the operation of the covenant beyond that for which the covenant was introduced and was intended, viz., to assure the particular estate granted. It cannot make it a new granting clause. Many old forms use the word in that connection. In old Maryland forms it was very common. 1 Harris, Entries, 10, 42, 44-46. But in all such cases it is used in a covenanting sense only, and it was never held to make the covenant a granting clause. In all cases of plain conflict or inconsistency in the clauses of a deed, the first clause prevails. 63 Md. 190.

There having been a clear diversion of the property from the uses to wbich it was devoted by the original deeds, the rights of the heirs at law of the original grantors of the property, who from the great lapse of time may be supposed to be dead, to have the land again by reverter, have arisen, and clouds the title of the appellant. It does not. appear that the heirs of Thomas Stiger or of John Deaver have failed, and that the reversion had escheated to the State before the act of 1852. It is true that the son of John Deaver, the original grantor in one deed, and his only heir at law, took title for the use of the Quakers by way of confirmation of their rights, but it was for the same uses, and no other; and the same difficulty arises over his possible heirs as exists with respect to the possible heirs of Stigar. Notwithstanding the

long possession of the appellant without molesta- not constitute an estoppel against the purchaser's retion, it does not appear by the admission in the scinding the purchase for the fraud of the seller. case to have been such a possession as could be relied on against the possible heirs of these grant- Appeal from the First district. ors; for infancy, coverture, and other disabilities

Scott, C. J., delivered the opinion of the may have existed to protect them.

court: Entertaining the views we have expressed with

This was a bill in chancery, brought by Josephrespect to the effect of the original deeds, and the

ince C. Smith against Caleb H. Booth, Oliver results of the diversion of the property from the

M. Parsons, and the Western Indiana Coal Comuses for which it was granted, we have not thought

pany. The relief sought, however, is principally it necessary to consider how the title of the ap

as to defendant, Caleb H. Booth. It is set forth pellants would stand under Exhibit C, D, in view

in the bill, that complainant was induced, by false of the provision of the declaration of rights. In

representations made by Oliver M. Parsons, as his any event, their title is dependent on the title of

agent, to purchase of Booth 392 shares af the capthe Quakers, and as we decide, as to that title,

ital stock of the Western Indiana Coal Company, that there may be heirs of the original grantors to

paying therefor the sum of $4,000; and the object assert rights adverse to them, which would have

of the bill is to set aside the sale on account of the to be respected, which clouds the title, further

alleged fraud practiced upon her, and for an acconsideration of appellant's title is unnecessary. count against Booth, from whom it is alleged she Nor have we found it necessary to decide whether

bought the stock through her agent transacting any of the acts of assembly with reference to the

the business for her. The fraud charged is, that Quakers has had the effect to make them a cor

Parsons falsely represented the company was poration; for, if such effect had resulted from any successfully operating its mine, and paying its of the acts, their power to use the property other

current expenses out of the proceeds of the coal wise than as granted would not have thereby

taken from the mine, and that the capacity of the increased, and diversion from the use created

mine could be easily increased to 50 tons per day, would still leave the reversionary rights, in con

when the mine would pay a large profit; that the sequence thereof, unaffected.

coal taken from said mine was worth 25 cents a It is the established rule in equity that a pur

ton more than any coal mined in the State of Ilichaser will not be compelled to take a title which

nois; that the coal could be mined and placed on is not free from reasonable doubt, and which

the cars at the mine at a cost not to exceed $1.27 might in reasonable probability expose him to the

per ton; that there had been invested, by the hazards of litigation. Therefore the decree must

stockholders of the company, in the plant and purbe affirmed.

chase of its property, the sum of $3,500; and that its indebtedness was $1,500. The bill then charges that, relying upon and believing the re

presentations so made to be true, she, through her EQUITY FRAUDULENT REPRESENTATIONS – ESTOPPEL AGENT -OFFICER

agent, made the agreement to purchase the stock. OF CORPORATION-PURCHASER.

The answer made to the bill was not under oath, and serves no other office than to put the matters

alleged against defendant at issue, and it will not, BOOTH v. SMITH.*

therefore, be necessary to state the contents. On Supreme Court of Ilinois, June 12, 1886.

the final hearing of the cause upon the pleadings

and the evidence, the court rendered a decree in 1. EQUITY-Fraudulent Representations Inducing favor of the complainant, setting aside the sale of Purchase.-This was a will to rescind a purchase of 392 shares of the capital stock of a coal company, in

the stock to her, and adjusted the equities between

her and the defendant, Booth, by taking an acduced, it is alleged by fraudulent representations of the defendant and his agent as to the value of said

count, and rendering a decree against him for the stock, and of the investments and business of the

balance found due from him, after appropriating company. The evidence in the case was conflicting. to complainant the amount in the hands of the Without analyzing the evidence in detail, the court receiver. That decree was affirmed, on the apheld that the preponderance of the evidence was with peal of Booth, in the Appellate Court of the First the complainant, and affirmed the decree sustaining

district, and he brings the case to this court on the bill.

his further appeal. 2 ESTOPPEL-Acts as Agent of Purchaser of Stock

Most, if not all, the questions involved are pureand Acts as Officer of Corporation Distinguished

ly questions of fact, and as to some of them the Purchaser not Estopped by His Agent's Acts in Latter Capacity. In this case the husband of the pur

testimony is quite conflicting. It does not seem chaser of stock acted as her agent in the purchase. He to be seriously controverted, either by Booth in then became an officer of the corporation, and the his answer to the amended bill, which charged the funds paid in for the stock were paid out with his ap- fact of agency, or by the evidence that Parsons proval as such officer of the corporation. This does

was his agent, and acted as such in making the

sale of the stock to complainant. That fact in the * S. c. 7 N. E. R. 610.

case may be regarded as proved with such cer

tainly that will be taken as established in the further consideration of the case. Nor can it be serjously questioned that complainant relied upon the representations, whatever they were, in making the purchase of the stock. She could have but little other information as to the value of the mines, and the plant owned by the company. Had it not been for the representation made to her agent, it is evident she never would have purchased the stock at the price she did. The sequel shows, past all doubt, the amount paid for the stock was out of all proportion to its real value. There must have been something, other than the slight personal examination of the mines and plant made by her agent that induced the making of the purchase of the stock. The testimony touching the representations alleged to have been made will be considered further on in the brief discussion that is to follow. There is no ground for the objection that the offer to rescind the sale was not made in apt time. No considerable delay was suffered to intervene in giving notice to Parsons of the intention to insist upon a recission of the contract. The delay in filing the bill is satisfactorily explained, and it was perhaps done to favor Parsons himself, that he might be able to effect another sale of the stock. It was not practicable, in the first instance, to give Booth notice of the recission of the contract. He lived in another state, and, under the circumstance in evidence, it is thought notice to the agent that transacted the business, and who continued to act for him, was quite sufficient.

Coming now to consider the alleged false representations made to complainant's agent to induce her to buy the stock, the most difficulty in the case is experienced. Most of the testimony bearing directly on that branch of the case comes from the agents of the parties that transacted the business for their respective principals. One of them (Smith) is the husband of complainant, and the other (Parsons) is the son-in-law of defendant, Booth. Much of their testimony is irreconcilably conflicting. It would answer no good purpose to enter upon any close analysis of the evidence. It is not necessary to do more than state the conclusions reached, after a careful study of the whole case as it appears in the record. There can hardly be a reasonable doubt that Parsons made certain statements to the agent of complainant as to the cost of mining the coal, the cost of transportation, and the price at which it could be sold when it reached the market, that were very material in reaching a conclusion as to the value of the stock it was proposed to sell. Other representations—for instance, as to amount that had been invested in the mine and plant, and as to whether the mines were then paying expenses -were, no doubt, made, but whether to the extent insisted upon by complainant, the evidence is unsatisfactory. If the statements and representations as alleged by complainant were in fact made, they were vital and material, and affected,

in a large measure, the value of the stock in the company.

There are some facts and circumstances that tend rather to support the testimony given by the agent, Smith, and if what he says concerning the representations made by Parsons is true, a rather strong case is made for relief. According to his testimony, what Parsons stated were not mere expressions of opinion as to value, but representations as to actual facts, within his personal knowledge, which if true vitally affected the value of the stock, and if untrue were hurtful to complainant, as they must have induced her to buy stock in the company that she would not otherwise have done. Wbat representations Parsons may have made to complainant's agent to effect the sale of Booth's stock to her, and whether such representations were willfully false, and made with a view to deceive her as to its value, are questions depending, as they do, so much on conflicting testimony, this court can hardly say the decree of the court below is not warranted by the evidence, and for that reason should stand. If the representations as to matters affecting the value of the stock were in fact made as testified to by Smith, and as the courts below have found, not the slightest doubt is entertained that they are material, and were confidently relied upon by complainant's agent in buying defendant's (Booth’s) stock for her. Conflicting as the evidence is, it is still thought there is sufficient to support the decree of the trial court; at least, no ground is perceived on which the decree can be reversed, and it must stand.

It is said, with some confidence, complainant is estopped to make any claim against defendant, Booth, for reimbursement. The facts relied upon as creating the bar to relief are that, after she had purchased the stock and paid for it, her husband, who had acted as her agent in buying the stock, became an officer in the corporation, and much of the money which she had paid in for the stock was paid out under the direction and with the consent of her husband, as an officer of the company. A sufficient answer to the position taken is that while her husband was paying out, or consenting to the paying out of, the money, he was not then acting as complainant's agent, but as an officer of the corporation. While acting in that capacity it would seem he was no more the agent of complainant than of defendant, Booth, or any stockholder in the compay. In that capacity he was the agent of the corporation, and not the personal agent of complainant, and there can be no ground for an estoppel for that reason, as to complainant.

The judgment of the appellate court must be affirmed.

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