59 A. 648 | Md. | 1905
This is a bill for specific performance. It alleges that on the 21st September, 1903, the defendant, Frank L. Garrett, *394 agreed to sell to the plaintiff, Emory E. Engler, a house and lot in Baltimore known as No. 2035 North Fulton ave. for the sum of $1,250 and that the plaintiff paid to the defendant twenty-five dollars on account of said purchase; that at the time said agreement was made the defendant executed and delivered to him the following memorandum in writing:
Baltimore, Md. Sept. 21, 1903.
Received of Emory E. Engler twenty-five dollars on ac. of house No. 2035 N. Fulton ave. being part of the consideration of $1,250 for the house.
The property is rented by Samuel S. Linthicum, who is to have the privilege of remaining in the house until October 1, 1904, if he so desires.
Signed F.L. Garrett."
The bill further alleges that the plaintiff has tendered the balance of the purchase-money, but that the defendant refuses to convey the property. The prayer asks for a specific performance and general relief.
The defendant answered, alleging that he agreed to sell the property mentioned provided that Mr. Linthicum the tenant then occupying the house should have the privilege of remaining there until October 1st, 1904; that he had agreed with the tenant that if certain improvements were made by him he should have the privilege of remaining until the time mentioned in the memorandum of sale; that on the 30th September, 1903, the tenant informed him that the improvements had been made by him and that he desired to remain in the premises as agreed; that the plaintiff refused to allow the tenant to remain as aforesaid; that the defendant considered the agreement of sale was abrogated by the refusal of plaintiff to perform his part thereof and tendered to him the sum of twenty-five dollars paid by him "on account of the purchase price;" and that thereafter the defendant sold and conveyed the property in question to his brother who was the holder of a mortgage upon it and who had duly released said mortgage on the 5th October, 1903, in contemplation of said sale being consummated. Subsequently an amended bill was filed alleging the *395 conveyance by the defendant to his brother, Robert E. Garrett, Jr., making him a party defendant and asking said conveyance to be declared null and void. In their answer to this amended bill the defendants allege that the defendant, Frank L. Garrett, was indebted to defendant, Robert E. Garrett, Jr.; that to secure this indebtedness a mortgage upon said property was executed by the former to the latter; that the mortgagee was informed that the mortgaged property was about to be sold and that in anticipation of such sale the mortgage was released; but that he afterwards learned the sale had not been consummated because the plaintiff failed to comply with the terms of the sale, that in order to avoid litigation the mortgagee took a conveyance of the property from the said mortgagor, his co-defendant, Frank L. Garrett; that if the said property had been sold at public sale it would have realized barely sufficient to pay said mortgage, interest and costs of suit; that the sale to said Robert was absolute, bona fide and for a valuable consideration and that while he had been informed that the property had been offered for sale to another party, he had no knowledge of the contract ofsale as set forth in the bill of complaint until after it was sold and conveyed to him.
Both the original and amended bills were answered and in both of them the contract relied on by the plaintiff was admitted. There was no exception to the testimony. Hence, as provided by Art. 5, § 34, the case before us on this appeal must be decided according to the matters established by the proof or as said in Schroeder v. Loeber,
All the testimony including that of the defendant, Frank L. Garrett, himself shows that the only reason why he refused to *396 perform the contract was because, as he said, nothing was offered him as a security that the plaintiff would allow the tenant, Linthicum, to remain in the house for a year under the lease which the defendant had given him, or agreed to give him. The plaintiff repeatedly declared that he was ready, willing and able to perform the contract and while this does not appear to be denied, the defendant seems to have been under the impression that he was entitled to some security that his tenant would be allowed to remain and without such security he refused to execute the deed. Was that a valid excuse for refusing to convey the property? We think not. There was nothing in the contract to justify such a demand. The sale was made, as appears upon the face of the contract itself, with reference to the lease and the evidence also shows that the plaintiff was fully aware of the fact that Linthicum was in possession of the property as the tenant of the defendant. Under these circumstances it cannot be contended that the plaintiff, if the property had been conveyed to him, could have disturbed the possession of the tenant. "The fact of the possession of a party whose rights are involved in a purchase, is a sufficient intimation of those rights to put the purchaser upon inquiry into their nature, and failing to make it, he is in equity visited with all the consequences of the knowledge of title." Baynard v. Norris, 5 Gill, m.p. 469;Pomeroy Eq. Jur., sec. 615; Note to Alexander v. Ghiselin, 5 Gill, 107. It was suggested, however, that while the contract does not provide that the tenant may remain, if he so desires, it fails to provide the amount of rent to be paid by the tenant. This, however, was not necessary for under the authorities just cited the plaintiff was bound to allow the tenant to remain upon the payment of the rent stipulated in the lease which the defendant had delivered to him. Chretien v. Doney, 1 Comstock, 422; 1 Taylor, L T., sec. 332, 8 ed. We do not find from the evidence that there was any question or difficulty made in regard to the amount of the rent to be paid by Linthicum when the plaintiff got possession of the property, and now for the first time it is urged as a reason why the contract should not be enforced. *397
Was the contract mutual? This is not disputed in the pleading or in the evidence. It is said that it is not signed by the plaintiff but this is not necessary even under the Statute of Frauds, which only requires the signature of the party to be charged. "There may be a mutual contract to which both parties have given their assent though the evidence of such assent may exist in a different form as to the two parties. As to one, it may be verbal, while the others is expressed by his signature in writing." Waterman on Specific Perf., sec. 201. The testimony as to the plaintiff's acceptance of the contract is ample, and besides this if there had been doubt on this question it disappeared when he filed his bill to enfore it.
Nor do we think there can be any objection to the contract on the ground of uncertainty. It describes the property as No. 2035 N. Fulton avenue, and further designates it as the property occupied by Samuel S. Linthicum. This certainly is quite as definite and certain as the description we held good in the case of Kraft et al. v. Egan,
But finally it is contended that before the bill was filed the defendant conveyed the house in question to his brother, Robert E. Garrett, who was made a party defendant by the amended bill.
It appears from the evidence that Robert E. Garrett held a mortgage from his brother on the house now in controversy *398
for $770 and that the amount due thereon was $989.45. Having released this mortgage upon the understanding that it was to be paid out of the purchase-money to be paid by the plaintiff, the transaction not having been consummated he testified that the defendant secured him for the amount due by deeding the house to him and that he accepted the deed as security; but he also says he considered the transaction as an absolute sale for value received. But whether it was a mortgage or a deed is immaterial, for we think it is clear from the evidence that he took the property with notice of the contract of sale which had been made with the plaintiff, and in spite of the fact that he was told that the deal with the plaintiff had fallen through, it was his duty to make the necessary investigation to discover the true situation. Thistle Mills Co. v. Bone,
It follows that the decree appealed from must be reversed and the cause remanded in order that a decree may be passed granting to the plaintiff the relief prayed.
Decree reversed with costs and cause remanded.
(Decided January 13th, 1905.) *399
