#### Patrick Dougherty and James Dougherty, executors under the last Will and Testament of Robert Rodden, deceased, *vs.*Charles Carberry.

*Case Stated—Assumpsit—Will; Construction of—Fee*Simple— *Real Estate.*

A case stated having been filed in an action of assumpsit, *held,*under the facts therein set forth, that a fee simple title to the lands sold to the defendant was vested in the testator at the time of his death.

*(December*13, 1907.)

Lore, C. J., and Spruance and Boyce, J. J., sitting.

S. S. *Adams, Jr.,*for plaintiffs.

*John Lynn*for defendant.

Superior Court, New Castle County,

November Term, 1907.

Assumpsit (Amicable Action on a Case Stated) No. Ill, November Term, 1907. •

The case stated omitting the caption, was in the following *57form, to wit: this fourteenth day of November, A. D. 1907, it is hereby agreed by and between the plaintiffs and the defendant in the above stated case, by and through their respective counsel, that the following case stated be submitted for the opinion of the Court in the nature of a special verdict, and that said cause shall be argued at the November Term of said Court, A. D. 1907.

The facts agreed upon by and between said plaintiffs and said defendant by and through their respective counsel are as follows.

*First.*That Thomas Milligan and wife by Indenture bearing date the twenty-first day of June, A. D. 1865, and recorded in the office for the recording of deeds, etc.,at Wilmington, in and for New Castle County aforesaid, in Deed Record B, Vol. 8, Page 387, granted and conveyed unto James Alcorn, all that certain lot or piece of land situate in the City of Wilmington aforesaid bounded and described as follows: Beginning at the intersection of the Westerly side of Spruce Street and the Northerly side of Eighth Street; thence with said side of Spruce Street Northerly Eighteen feet to a stake in Michael McCloskey’s line; thence with said McCloskey’s line Westerly parallel with Eighth Street Eighty feet to a stake; thence Southerly parallel with Spruce Street Eighteen feet to the said side of Eighth Street, and thence therewith Easterly Eighty feet to the place of Beginning.

*Second.*That James Alcorn and wife by Indenture bearing date the thirteenth day of December, A. D. 1867, and recorded in the office aforesaid in Deed Record O, Vol. 8, Page 450, granted and conveyed unto Robert R. Porter, all that certain lot or piece of land situate in the City of Wilmington aforesaid, bounded and described as follows:

*Beginning*at the intersection of the Westerly side of Spruce Street and the *Southerly*side of Eighth.Street; thence with said side of Spruce Street Northerly Eighteen feet to a stake in Michael M.cCloskey’s line; thence with said McCloskey’s line Westerly parallel with Eighth Street Eighty feet to a stake; thence Southerly parallel with Spruce Street Eighteen feet to the *58said Southerly side of Eighth Street, and thence therewith Easterly Eighty feet to the place of Beginning.

*Third.*That Michael McCloskey and wife by deed dated the ninth day of December, A. D. 1867, and recorded in the office aforesaid, in Deed Record O, Vol. 8, Page 325, granted and conveyed' unto Robert R. Porter, all that certain lot or piece of land situate in the City of Wilmington aforesaid, bounded and described as follows: Beginning on the Westerly side of Spruce Street between Eighth and Taylor Streets, at the distance of Eighteen feet from the Northerly side of Street at Thomas Milligan’s line; thence with said Milligan’s line Westerly parallel with Eighth Street Eighty feet to a stake; thence Northerly parallel with Spruce Street Thirty-Six feet to a new line; thence Easterly parallel-with Eighth Street Eighty feet to the said side of Spruce Street; thence therewith Southerly Thirty-Six feet to the place of Beginning.

*Fourth.*That William H. McCaulley, Surviving executor of Samuel McCaulley, by two separate Indentures bearing date the eighteenth day of February, A. D. 1864, and recorded in the office aforesaid, (the first next mentioned) in Deed Record V, Vol. 7, Page 258, and (the other) in Deed Record W, Vol. 7, Page 236, granted and conveyed unto Robert R. Porter, all those two certain lots or pieces of land situate in the City of Wilmington aforesaid, bounded and described as follows: Beginning at the Westerly side of Spruce Street between Eighth and Taylor Streets ■ at the distance of Fifty-Four feet from the Northerly side of Eighth Street; at Michael McCloskey’s line; thence with said side of Spruce Street Northerly Seventy-Eight feet, one and one half inches to land sold to Samuel McCaulley; thence Westerly with said McCaulley’s line parallel with Eighth Street, One Hundred and Forty-Five feet, five and one quarter inches to the Easterly side of Kirkwood Street; thence Southerly with said side of Kirk-wood Street, One Hundred and Five feet, one and one half inches to another line of said Samuel McCaulley; thence with said McCaulley’s line Easterly parallel with Eighth Street, Sixty-Five feet, five and one quarter inches to said McCloskey’s land; thence *59with his land Northerly parallel with Spruce Street, Twenty-Seven feet to a corner of said McCaulley’s land; thence with his land Easterly parallel to Eighth Street, Eighty feet to said side of Spruce Street and place of Beginning; and the other Beginning at the intersection of the Northerly side of Eighth Street with the Easterly side of Kirkwood Street; thence with said side of Eighth Street Easterly Sixty-Five feet, five and one quarter inches to a stake in Thomas Milligan’s line; thence Northerly parallel with Kirkwood Street, Twenty-Seven feet to Robert R. Porter’s line; thence therewith Westerly parallel with Eighth Street Sixty-Five feet five and one quarter inches to the said side of Kirkwood Street, and thence therewith Southerly, Twenty-Seven feet to the place of Beginning.

*Fifth.*That Robert R. Porter and wife by deed dated the eighth day of November, A. D. 1872, and recorded in the office aforesaid, in Deed Record T, Vol. 9, Page 215, granted and conveyed to Charles McCloskey and William McMenamin, all that certain lot or piece of land situate in the City of Wilmington aforesaid, bounded and described as follows:—Béginning at the corner formed by the Easterly side of Kirkwood Street wth the Northerly side of Eighth Street; thence along said side of Kirk-wood Street, Northerly Seventy-Eight feet to the southerly side of an alley four feet wide leading into Spruce Street; thence along said side of said alley Easterly parallel with Eighth Street, One Hundred and twenty eight feet, five and one half inches to a line of land of the late Samuel Cook; thence with said Cook’s line Southerly parallel with Spruce and Kirkwood Streets Seventy-Eight feet to the said Northerly side of Eighth Street, and thence thereby Westerly One Hundred and twenty-eight feet, five and one quarter inches to the place of Beginning.

*Sixth.*That Charles McCloskey and William McMenamin and wife by Indenture bearing date the twenty-fifth day of March A. D. 1873, and recorded in the office aforesaid, in Deed Record L, Vol. 11, Page 43, granted and conveyed unto Daniel Rodden, all that certain lot or piece of land situate in the City of Wilmington, aforesaid, bounded and described as follows: Beginning *60on the Northerly side of Eighth Street between Pine and Spruce Streets at a comer of a four feet wide alley running from Eighth ,to Taylor Streets and at the distance of Seventy-Two feet, five and one quarter inches from the Easterly side of Kirkwood Street; thence Easterly along said Northerly side of Eighth Street Fourteen feet to a comer; thence Northerly through the middle of the division wall of the adjoining house on the east parallel with Spruce Street Seventy-Eight feet to the Southerly side of a four feet wide alley connecting with the first mentioned alley and running into Spruce Street; thence Westerly along said side of said alley parallel with Eighth Street, Fourteen feet to the easterly side of the first mentioned four feet wide alley, and thence along the same Southerly parallel with Spruce and Kirkwood Streets, Seventy-Eight feet to the place of Beginning.

Seventh, That Daniel Rodden by Indenture bearing date the fourth day of March, A. D. 1874, and recorded in the office aforesaid, granted and conveyed the last mentioned and described land and premises to James Rodden. For record of said deed, see Deed Record D, Vol. 10, Page 411.

*Eighth.*That the said James Rodden by deed bearing date the twenty-first day of October, A. D. 1900, and recorded in the office aforesaid in Deed Record L, Vol. 18, Page 41, granted and conveyed the last mentioned and described land and premises unto Robert Rodden in fee.

*Ninth.*That the said Robert Rodden departed this life on or about the day of January, A. D. 1906, after having made and published his last Will and Testament in writing, which after his death was duly proved and allowed and is of record in the office of the Register of Wills in and for New Castle County in Will Record Vol. Page

*Tenth.*That the said Robert Rodden by his said Will appointed James Dougherty and Patrick Dougherty the executors thereof, who have duly qualified as such executors,

*Eleventh.*That the said Robert Rodden by his said Will authorized his said executors to sell the said real estate, and *61grant and convey the same to the purchaser in fee simple, freed and discharged from any and all trusts.

*Twelfth.*That the title to the said land and premises is now in the name of Robert Rodden.

*Thirteenth.*That on the twenty-sixth day of January, A. D. 1907, that the said defendant purchased from the said plaintiffs the last mentioned land and premises for the sum of fifteen hundred dollars, taking a receipt in writing from the said plaintiffs for part payment of the purchase money, the following being an exact copy of said writing:

“Wilmington, Del., Jan. 26, 1907, Received of Charles Carberry the sum of twenty-five dollars, being part payment of the purchase money of fifteen hundred dollars for the land and premises situate on the Northerly side of Eighth Street between Kirkwood and Spruce Streets, having a front of fourteen feet on Eighth Street, and running that width in a Northerly direction, Seventy-eight feet to a four feet wide alley, the balance of the purchase money being the sum of fourteen hundred and seventy-five dollars to be paid when a deed in fee simple for the said property clear of all liens has been executed and delivered.

Patrick Dougherty,

James Dougherty,

*Executors.”*

*Fourteenth.*That on the said lot or piece of land conveyed by the said Charles McCloskey and William McMenamin to James Rodden, there has been erected a three story brick dwelling house, part of the said dwelling house covering a piece of land fourteen feet on Eighth Street, and running that width in a Northerly direction eighteen feet; the said piece of land (14x18 feet), being a part of the land conveyed by James Alcorn to Robert R. Porter, and which was bounded and described as Beginning at the corner formed by the intersection of the westerly side of Spruce Street and the southerly side of Eighth Street, whereas it should have been bounded and described as Beginning at the *62corner formed by the intersection of the westerly side of Spruce Street and the *Northerly*side of Eighth Street.

*Fifteenth.*That on the eighth day of May, A. D. 1907, the said plaintiffs signed and sealed a deed conveying the last mentioned and described land and premises to the said defendant in • fee, and the said plaintiffs duly acknowledged the execution of said deed in the manner required by the Laws of the State of Delaware; that on the ninth day of May, A. D. 1907, the said plaintiffs tendered the said deed to said defendant and demanded of the said defendant that he pay them the said plaintiffs, the balance of said purchase money, to wit, the sum of fourteen hundred and seventy-five dollars.

*Sixteenth.*That upon the tender of the above mentioned deed by the said plaintiffs to the said defendant, the said defendant refused and declined to accept and receive the same, and further refused and declined to pay to the said plaintiffs the said balance of the said purchase money, being the sum of fourteen hundred and seventy-five dollars. The said defendant stated then and there to the said plaintiffs that he refused and declined to accept the said deed and pay the balance of the purchase money, because in the deed of James Alcorn and wife conveying to Robert R. Porter, the land at the corner of Spruce and Eighth Streets, a part of which is included in the land sold to said defendant, is described as beginning at the intersection of the Westerly side of Spruce Street and the *Southerly*side of Eighth Street, when it should be described as beginning at the intersection of the Westerly side of Spruce Street and the Northerly side of Eighth Street, and that the said Robert Rodden at the time of his death did not have a good, fee simple title to all the said land and premises, and that the parties plaintiff hereto, being his executors, cannot give a deed conveying a fee simple title to the said defendant.

*Seventeenth.*That there are no incumbrances or liens whatever of record against the said land and premises, last mentioned and described, and sold to the said defendant.

*63If from the above statement of facts, the Court shall be of the opinion that there was vested in the said Robert Rodden at the time of his death a fee simple title to the whole of said lot of land sold to the said defendant, then judgment to be entered for the plaintiffs for the sum of fourteen hundred and seventy-five dollars. Otherwise that judgment shall be entered for the defendant for costs.

The Court made the following order :

This cause having been argued and considered by the • Court, the Court is of the opinion that there was vested ■in the said Robert Rodden at the time of his death a fee simple title to the whole of the said lot of land sold to the said defendant. It is ordered and adjudged that judgment be entered for the plaintiffs for the sum of fourteen hundred and seventy-five dollars with costs.

Cbas. B. Lore,

*Chief Justice.*