Duckett v. Duckett

71 Md. 357 | Md. | 1889

Miller, J.,

delivered the opinion of the Court.

This appeal is from an order sustaining a demurrer to the bill filed in January, 1889, by the appellant against the appellee, and dismissing the same.

This bill alleges and charges that in September, 1881, the defendant, who is complainant’s father, being jiossessed of about four hundred acres of land, voluntarily divided the same into as many parts as he had children, and in consideration of natural love and affection, gave to each child a portion of the land so divided, that given to complainant being a tract of about sixty-two acres, of which he was put in possession by his father; that at the same time, his father made a will, which was exhibited to his children, by which he devised to each the portion laid off and designated as such child’s part, including the sixty-two acres to the complainant; that his father caused this tract to be surveyed, and had the same transferred on the assessment books to the name of the complainant, who has paid the taxes thereon ever since such transfer; that relying on this gift and assurance of his father, as well as upon his said will, complainant entered upon this tract in September, 1881, and has ever since remained in possession as owner thereof; that during this occupancy and still relying upon these assurances of his father that this land was to be, and in fact was, his property, he has exprended about $1000 in permanent improvements thereon, by erecting a dwelling house, and out-buildings, and in repairing the barn, and has improved the land by fertilizers, and has also paid taxes thereon since 1884, to the amount of $59.10; that since February, 1885, the premises have been rented to one Simpson, as a yearly tenant of complainant, at a crop rent, who has been allowed to remain in undisturbed possession until about the 1st of December, 1888, when the defendant served a notice upon him to quit at the end of thirty days, and has since instituted proceedings to oust him as a tenant holding over ; and complainant charges that to be thus dispossessed of the land would be greatly to his injury, and would leave him without compensation for the money he has expended in permanent improvements as aforesaid, as well as without remedy at law.

The relief prayed is 1st, that the agreement as witnessed by this will of his father, to devise or convey to complainant the premises in question, "may be specifically enforced; 2nd, that complainant may be reimbursed for all money expended upou the premises during his occupancy of the same; 3rd, that a receiver may be appointed to receive the rents and xxrofits of the premises pending this suit; 4th, that defendant may be restrained by injunction from taking any other or further proceedings to oust the tenant of the complainant pending these proceedings; and 5th, for general relief. The exhibits are the contract of renting between Simpson and the complainant, dated the 9th of February, 1885, and the tax bills paid by the latter, which support the averments of the bill in relation thereto.

As the case is presented we must assume the averments of the bill to be true; and we think there is error in the decree appealed from, which denies the plaintiff any relief whatever. As we read this bill, it does not present the case merely of a promise by a father to give land to his son by will, — an instrument inherently revokable, — but a case where there was a positive gift by the father to the son of land which the father had laid off and designated as the son's share of his estate in the will which he then executed, and 'exhibited to • all his children. The son was put in immediate possession by the father, and was thus encouraged to treat the property as his own. He remained in undisturbed possession as owner, by himself and his tenant, from September, 1881, to December, 1888, and during his own occupancy expended at least f1000 of his own money in permanent improvements, with, as may be fairly inferred from the statements of the bill, his father's knowledge and assent. ‘ The father also had the land transferred on the assessment books from his own name to that of his son, and the latter thereafter paid the taxes thereon. The son made these improvements, and paid the taxes, relying upon the good faith of these assurances of his father that the land was’ to be, and in fact was, his property. Upon this state of case, which, upon the demurrer, must be assumed to be true, we think it clear the complainant is entitled to the injunction prayed for. Neither he nor his tenant can be immediately and unconditionally ousted from possession by the defendant. He is also entitled to compensation for the improvements thus made, and to a decree establishing a lien therefor on the property. Relief to this extent, at least, is clearly authorized by the cases of Shepherd vs. Bevin, et al., 9 Gill, 32; Haines vs. Haines, 4 Md. Ch. Dec., 133, and same case on appeal in 6 Md., 435; Hardesty vs. Richardson, Ex’r, 44 Md., 617, and King vs. Thompson, 9 Pet., 204. Whether, upon the same authorities, he w'ould or would not be entitled to a decree for the immediate conveyauce of the land to him hy deed is a question we do not now decide. It may well he, so far as the hill shows, that both parties understood that the legal title should be made hy and derived from the will of the father; and there is no averment that the will executed at the time has been destroyed, or that the father has changed his intentions in this respect, or that he will not eventually carry them out.

(Decided 15th November, 1889.)

There is nothing to show that the son will not ultimately get the title under his father’s will. This question,, therefore, can better he decided after answer and proof. All that we now decide is that, upon the averments of the hill, the son is entitled to relief to the extent indicated. The whole aspect of the case may be changed upon the coming in of the answer and proof.

Decree reversed, and cause remanded.