HAMMOND, J., delivered the opinion of the Court.
To be determined in this appeal is the validity of the contention of Phillips Clarke and Mae Clarke, his sister, appellants, that they still have contract rights to develop, and share in, certain land of Mary Lacy, appellee. The chancellor decided that under the terms of the contract their rights had expired with the passage of time and dismissed their bill seeking declarations of their claimed rights and an injunction against transfer of the land.
Mary Meidel, the mother of Mary Lacy, owned some thirty or forty acres close to the Anacostia River and the District of Columbia line. She died in 1946 and the property passed under her will to Mrs. Lacy. Some years ago, in the process of the building of the Baltimore-Washington Parkway, the heart of the property was taken by condemnation. Some six acres were left on the southeast side of the parkway, with all access denied. The parties refer to this tract as parcel B. The remainder of the property, containing some eighteen acres, is on the southwest side of the parkway and is called parcel A. It was stipulated that Mrs. Lacy now has, and at all times here material had, "good merchantable record title" to parcel B and to some twelve acres, duly described, of parcel A, acquired under the will of her mother, as well as that Mrs. Lacy now has, and at all times here material had, "possessory title" to the remainder of parcel A, and that this remainder had "been held adversely, openly, notoriously, hostilely, and continuously" by her mother, from January 2, 1896, to the date of her death, and by Mary Lacy since the date of her mother's death to the present, against the whole world, but that said possessory title has not been established as a matter of record in the Circuit Court for Prince George's County, Maryland, and that "no one has ever asserted a claim against said possessory title."
In the spring of 1953, the Clarkes approached Mrs. Lacy to arrange for the development of the land into a commercial or industrial center. The Clarkes were experienced in the
As soon as the contract was executed, the Clarkes paid the taxes they had agreed to pay and sought rezoning of parcel A. To help in the procuring of the rezoning and the layout of and planning for the tracts, the Clarkes employed one Fred Tuemmler, a former employee of the Park and Planning Commission, who is engaged in private practice as a land planning expert. It is stipulated that they expended $12,000, most of which went for his services. Rezoning of the property to light industrial was approved on June 16, 1954. The Clarkes attempted to procure a railroad siding to the property but to do this it was necessary to cross land owned by the Park and Planning Commission, and permission could not be secured. The original one year limitation of the contract would have expired on July 20, 1954, but since it was enlarged by the contract to one year from rezoning, the Clarkes had until June 16, 1955, to find a tenant for a first unit. They found no tenant within the time limit. Mrs. Lacy contends that for this reason all rights and obligations on both sides terminated on June 16, 1955, and that the Clarkes have no interest in or claim to the property. On the other hand, the Clarkes contend that the contract has not expired according to its terms. Their contention is based on two grounds: first, that Mrs. Lacy does not have good title to approximately one-third of parcel A, so that her title to a part of the land is "defective" within the meaning of the contract, and the one year limitation is stretched to one year from the time she shall have removed the cloud on her title; and second, that time was not of the essence of the contract and because of the extensive efforts and substantial expense
The Clarkes admit that before they signed the first of the contracts they had been told, and by their investigations verified, that Mrs. Lacy had only possessory title to a substantial part of parcel A. The testimony permits the inference that they could have stipulated before the contract was signed exactly what they stipulated at the trial, as to the nature of her title and to the fact that there had been no claims against her possessory interest as to a substantial portion of parcel A, although the exact limits of the land so held would not then have been known. Nevertheless, they argue that Mrs. Lacy's title must be considered defective and to have a cloud on it because banks and other lending institutions will not make loans unless the title can be insured by a title insurance company and that title insurance companies will not insure titles based on adverse possession. They say that since the contract contemplated that loans would be made on the property, the parties must be understood to have intended that the possessory title was a defective title requiring perfecting. The Clarkes contemplated and gave attention to the possessory title, of which they had full knowledge, before they signed the two preliminary contracts and the final contract. In the two preliminary contracts they described the land as "unencumbered". This being so, it is hard to conclude that in the final contract they had a possessory title in mind as "defective" or as a "cloud" in light of the fact that Mrs. Lacy was given twelve months to remove "such cloud" by paragraph 11 of the contract "after discovery thereof". No discovery was required as to the possessory title for the facts were known. The two contracts that preceded the final contract made no mention of possible defects in title or of the perfection of title. The first referred to Mrs. Lacy's holdings as twenty acres, the second, as twenty-two acres. It was because of Mrs. Lacy's thought that she might own additional
The contract was drawn by counsel for the Clarkes. Mrs. Lacy urges that they and their counsel stood in a fiduciary relationship to her and that advantage was taken of her. The chancellor found no evidence to support this claim and in this we think he was entirely right. Nevertheless, if there were doubt as to the meaning of the contract, it would be interpreted against those who drew it. Owens v. Graetzel, 146 Md. 361, 370. We think, however, that there is no doubt as to the meaning of the contract. The terms used have established significance in Maryland. The essential prerequisite to extension of time on the question of title is that Mrs. Lacy's title to all or part of the land involved be defective or have a cloud on it. This is the converse of saying that Mrs. Lacy must have a good or a perfect or an indisputable title, which is to say, a marketable title. 3 American Law of Property, Sec. 11.47 says that the phrases "good or perfect title", "first class title" and "indisputable title" all mean a marketable title. One that is defective or has a cloud on it clearly would be one that was not marketable. In the succeeding section, it is pointed out that there is some authority for the proposition that a marketable title means one good of record but that numerous jurisdictions hold that a good title is provable by any competent evidence, including that of adverse possession, and in section 11.49, it is noted that title by adverse possession may be a good or marketable title. Section 15.14 discusses the estate and title acquired by adverse possession and says the title so acquired "* * * is the same as any acquired by grant, descent, or conveyance and can be lost or transferred only by the methods applicable to such titles. The title is good as it stands and the claimant is in no position to compel the record owner to execute a conveyance to him. The only method of making it a record title is by the recording of a judgment or decree determining its existence, but the recording acts are not in form to require
The Clarkes could easily have provided in the contract, if they had so desired, that Mrs. Lacy's title to all of the land
We turn then to the contention that time was not of the essence and that in equity and good conscience, Mrs. Lacy must permit an extension of the contract to enable the Clarkes to find a tenant or to otherwise share in the value their expenditures of time and money have added to the property. The chancellor construed the contract of July 20, 1953, as, in substance and effect, a unilateral contract which the Clarkes purchased. They had no obligations other than to pay certain taxes, and to make efforts to find tenants or to sell to governmental bodies. They did not covenant that they would find a tenant or procure sales. They were given the option, for a stated period, of producing certain results and if they did produce, their reward was earned. We think that the chancellor's reading of the contract was accurate and that it is to be considered and construed as unilateral and in the nature of an option. Grabenhorst v. Nicodemus, 42 Md. 236. In such a case, time is of the essence as a matter of law. Coleman v. Applegarth, 68 Md. 21. In Foard v. Snider, 205 Md. 435, 446, the subject was considered and it was said: "Time is of the essence in a unilateral contract, such as an
There is another weakness in the contention of the Clarkes as to an extension of time. If Mrs. Lacy was not required to take any action as to her possessory title, which is our holding, there would be no definite or measurable period to which an extension could apply. Generally, where time is found not to be of the essence, the party in default has it within his power to fulfill, within a definite period, the obligation he should have fulfilled earlier, that is, to make payment, or conveyance, or to execute a lease, or perform some other specific act. Here the Clarkes are asking what amounts to an indefinite extension so that they may have an opportunity to find a tenant or make a sale to a government agency, an opportunity they had for almost two years but were unable to gratify. We think the complications in the situation before us, if the time were to be extended, emphasize the soundness of the chancellor's finding that time was of the essence of the contract.
The Clarkes urge that Mrs. Lacy was fully aware of all the matters which delayed or impeded the securing of tenants during the period from July 20, 1953, to June 16, 1955. These included the rezoning of the property and the attempts to effect a trade of part or all of parcel A to avoid the extinguishment or impairment of the entire development by the threatened condemnation for the Anacostia River flood control project. They say that the attempt to develop parcel A was retarded, if not prohibited, by these threatened governmental
Decree affirmed, with costs.