This is an appeal from an order of the Orphans' Court of Baltimore County refusing to ratify and setting aside the sale of a certain parcel of leasehold property in Baltimore City, made under the order of said Court by John S. Biddison and John G. Rogers, administrators of Frederick William Koenig, deceased.
Exceptions were filed to the ratification of said sale by the appellee as purchaser of the parcel designated as No. 48, East Cross street. The first ground of exception was, that while the advertisement read at the sale stated that the property in question was subject to a right of way, and a right of drainage, over an alley to be kept open on the western side of said lot for the benefit of said lot and the adjoining property on the west, the purchaser had discovered since the sale that the property was also subject to a right of drainage through said alley in favor of other property on the east, of which no notice was given at the sale, and of which the purchaser had no knowledge; *Page 165 and that this drainage from the property on the east brought such quantities of water as to overflow the cellar upon the lot sold, and render the property unfit for the business of the appellee.
The second ground of exception was, that if the sale as reported is ratified, the purchaser will not acquire what he believed, and had reason to believe, he was buying, because, in the language of the exception, "the visible property and improvements, as used and occupied, consist of a two-story brick store and dwelling, and a one-story back building, with an area about three feet wide along the said back building, leading to the privy closet used in connection with the buildings to which the same is attached and appurtenant, and of which the same is a part; that the lot of ground reported as sold to this exceptant does not include the said back building nor the area way and privy closet, without which the building reported to be sold to this exceptant is altogether useless for ordinary purposes of habitation."
The facts of the case and the contention of the appellee will be made plain by reference to the following plat: *Page 166
[EDITORS' NOTE: PLAT IS ELECTRONICALLY NON-TRANSFERRABLE.] *Page 167
As to the first exception, there is not a particle of evidence in the record of any grant of the alleged easement or right of drainage by Koenig, as the owner of the Cross street lot as well as of the Light street lot, or by any other former owner, in favor of the Light street property on the east. It does appear that there is a drain pipe under the one-story back building in the rear of the Cross street lot, the mouth of which discharges into the area way alongside of this back building, leading into the alley on the west side of the Cross street lot, and which is indicated on the plat by the small circle near the south end of the area way; but there is absolutely nothing to show what property it was designated to drain or actually does drain.
Even if it did appear that it actually drained the Light street property of Koenig, there is nothing in the record to sustain the alleged easement as arising by an implied grant. In Eliason v. Grove, 85 Md. 225, it was said: "As long as one person owned both properties, it could not properly be said that an easement existed in favor of one of them, as the owner could not have an easement in his own land. But whilst that is true, it is also well settled that if during the unity of ownership, the owner of two properties uses one for the benefit of the other in such manner as would have given rise to the presumption that an easement existed, if the tenements had been held by different persons, then upon a conveyance of the property so used, an easement will be granted to the purchaser, provided the use hasbeen such that the easement resulting from it would be of theclass known as continuous and apparent and would be necessary forthe reasonable enjoyment of the property conveyed." And inBurns v. Gallagher, 62 Md. 471, it is said, "such necessity cannot be deemed to exist, if a similar way or easement may be secured by reasonable trouble or expense, and especially not, if the necessary way or easement can be provided through the grantor's own property."
Here the existence of the alleged easement, or of the user of the two properties which might have given rise to the presumption of such easement, was unknown to the administrators of Koenig whose duty it was to exercise reasonable care *Page 168 to acquaint themselves with, and to inform purchasers of, the situation and condition of the several properties they were selling. It was unknown to the purchaser of the Cross street property, who had known the property for over twenty years, and had been on the premises more than once during that period. No one testifies to its existence, and it cannot therefore be deemed visible and apparent as required by the authorities. There is no evidence that the Light street property cannot be drained to Light street within its own lines, and if it can be so drained, the easement over the Cross street lot cannot be deemed necessary to the enjoyment of the Light street property. For aught that appears therefore, either upon the theory of actual or implied grant, the alleged easement is without pretence of authority, and this exception cannot be sustained.
Coming to the second exception, it is perfectly plain from all the testimony in the case, that the exceptant cannot acquire under this sale the property he believed he was buying. The advertisement which he heard read at the sale describes this lot as fronting on Cross street 14 feet 7 1/2 inches with a depth of 31 feet, and improved by a two-story brick dwelling with store front, without any mention of a back building, and the plat shows that the one-story back building and the privy closet are not within the lines of that lot, but are within the lines of the Light street lot, sold the same day to Obrecht, which fronts on Light street 16 feet with a depth of 93 feet.
It appears from the testimony that before this back building was put up, the closet in the rear of this lot was used in common by the occupants of this lot and of the adjoining lot on the west, and that after Koenig bought the Cross street lot he put up the back building on the Light street lot sold to Obrecht at this sale, joining it to the rear wall of the two-story building on the Cross street lot, and connecting it therewith by a door in the rear wall of the two-story building, and that ever since its erection, for over twenty years, it had been used as a kitchen to the Cross street building, and as a means of access for the occupants of that building to the closet in the area way. *Page 169
The advertisement of the Light street lot is not in the record, but the testimony shows that the dimensions advertised were 16x93 feet, and the improvements were described as a three-story brick dwelling and store front with a two-story back building. Neither advertisement made any reference to the one-story back building within the lines of the Light street lot and in the rear of the Cross street lot. Neither of the administrators knew, when the property was advertised, nor at the time of the sale, of the existence of this one-story back building. Mr. Biddison testified that he did not know at the time of the advertisement and sale, that there was a one-story building on the Light street lot, and that he did not know there was such a building in the rear of the Cross street lot. Mr. Rogers testified that at the time of the sale he did not know anything about this one-story back building, nor of the character of improvements on any of the lots, and that the preparation of the advertisements was left entirely to Mr. Ward, by whom they were sent to the administrators. Mr. Biddison also said that these titles were "mixed up," and that they thought it best to advertise by metes and bounds, so there would be no mistake, and that if they had known this one-story building was on the Light street lot, he thinks they would not have so advertised it, and if they had known of its existence and that it had been used for twenty years as a kitchen in connection with the Cross street house, he does not think they would have mentioned it, in selling that lot, because of the fact that those titles were mixed up, and that they thought they did all they could, when they described the property by metes and bounds so that bidders could determine what improvements were included within these respective metes and bounds.
The Light street lot was sold first to Frederick Obrecht, as 16x93 feet, improved by a three-story brick dwelling with store front, and a two-story back building. He testified that when he bought this property he did not think the one-story back building was in the 93 feet of ground, and that he did not think he was getting it in that purchase. The Cross street *Page 170 lot was offered next, and Obrecht bid $1,500 for that, but testified that he then thought if he became the purchaser he would get the one-story building on the rear, and that if he had not already purchased the Light street lot, he would not have bid at all upon the Cross street lot.
The exceptant testified that he knew the property for years; that the front and back building had always been used as one property, and when he became the purchaser he thought he was getting the whole as used. His brother, who bid for him, testified that he thought he was bidding for the whole, and that if he had known the kitchen, the closet and the yard was not going with it, he would not have bid at all for the exceptant.
This recital of the undisputed evidence makes it plain that this exceptant cannot secure under this sale what he thought he was buying, and what we think he had reason to believe he was buying. It is equally clear that what he cannot thus secure, constitutes a very material part of the value of the whole, and is essential to its reasonable enjoyment for the purpose contemplated in the purchase, and we are forced to the conclusion that purchaser should not be required to take the property.
It was argued in support of this sale that as the advertisement only mentioned a two-story brick building, and as the dimensions of the lot advertised did not embrace the one-story building, and as the administrators required the auctioneer to ask if bidders desired any information, that the exceptant should have asked for information as to this building, and that his predicament is to be imputed alone to his failure to do so, and therefore he should not now be relieved at the expense of those entitled to the proceeds of sale. But this argument cannot avail in this case, since the administrators, by their own statement, would have been unable to give information upon this point if it had been sought. This sufficiently appears from the testimony already referred to, but it is emphasized by Mr. Biddison in his cross-examination, who when asked what he would have said if Mr. Aaron out of abundant *Page 171 precaution had asked if this back building went with the Cross street lot, replied: "I would have told him whatever the description covered goes with it," and that if asked by Obrecht whether that back building went with the Light street lot, replied, "I could not say, because I did not know."
The principle which should be applied is stated in Ellicott v. White, 43 Md. 151, where it was said: "Any one examining the property and seeing the buildings standing upon a lot which abutted upon three streets and was completely enclosed by fences as one entire lot, would naturally and reasonably suppose that it constituted but one parcel, and that the whole was to pass with the buildings, unless informed to the contrary by the owner, whose duty we think it was so to inform the purchaser, or unless information to the contrary was derived from some other source." And in Keating v. Price, 58 Md. 534, this Court cites the rule laid down by CHANCELLOR KENT as follows: "The good sense and equity of the law on this subject is, that if the defect of title, whether of land or chattels, be so great as to render the thing sold unfit for the use intended, and not within the inducement to the purchase, the purchaser ought not to be held to the contract."
If the Courts will not permit one individual, in contravention of this rule, to force a purchase upon another, they should be careful not to allow agents conducting sales for the Court to do so.
For the reasons stated the order of the Orphans' Court of Baltimore County will be affirmed.
Order affirmed, with costs to the appellee above and below.
(Decided November 16th, 1905.) *Page 172