13 Md. 257 | Md. | 1859
delivered the opinion of this court.
In these appeals it is necessary to ascertain, whether, at any time, there existed a resulting trust in favor of Mary Greer, in the lot of ground described in the proceedings, and now in controversy.
A lease of the property for ninety-nine years, renewable forever, was executed on the twenty-fourth day of June, in the year eighteen hundred and forty-three, by James Howard McHenry to George Baughman. On the 31st of December 1845, he assigned the lease to William J. Ward, in trust for the sole and separate use of Mary Jane, the wife of G. Baughman, and in case of her death, for the use of the children of the said Mary Jane by the said George. The lease and the assignment were both recorded on the 19th day of September 1848.
i Mary Greer alleges, in her bill, that the lot was contracted for, at her request, by G. Baughman, as her agent, the same to be leased to her by McHenry. That with her moneys the lot was improved by the erection of a dwelling house thereon. But through some inadvertence of the agent of said McHenry and of George Baughman, the lease of the lot was executed by McHenry to Baughman, as lessee, instead of her (the said Mary Greer) being made the lessee j all which was done without her knowledge at the time. And when it became known to her, a long time after, the proper correction was promised by Baughman and McHenry’s agent, or that Baughman should assign the leasehold property to her, or as she might, direct.
Thus it will be seen, there is no record or written evidence of title to the lot in Mary Greer. She, therefore, can have no claim to the property, nor can her daughter or grandchildren have any, as derived from her, by virtue of the assignment in trust to William J. Ward, unless a resulting trust in Mrs. Greer is sustained by the proof.
In Faringer vs. Ramsay, et al., 2 Md. Rep., 375, there was an effort, by the trustee of an insolvent petitioner, to establish a resulting trust in opposition to two deeds. And there the court make a quotation from Dorsey vs. Clarke, 4 Har. & Johns., 557, where it is said: “The authorities are clear, that the payment of the money by the cestui que trust must bo clearly proved, otherwise you render insecure titles depending pn deeds and other written documents.”
The cases on this subject are examined by Chancellor Kent, yvith his usual ability, in Boyd vs. M'Lean, 1 Johns. Ch. Rep., 582. He there says: “The cases uniformly show, that the courts have been deeply impressed with the danger of this kind of proof, as tending to perjury and the insecurity of paper title; and they have required the payment by the cestui que trust to be clearly proved.” Although he concedes, that the rule has been established by the weight of authority, which allows parol proof of a resulting trust, yet it is evident, that if the point had been res integra he would have been inclined to think, “that such evidence is too dangerous in its consequences.” And ho speaks of the case of Gascoigne vs. Theving, (should be Thwing,) 1 Vern., 366, as being a salutary admonition in regard “to the caution with which such proof ought to be examined.”
In Lench vs. Lench, 10 Ves., 517, where the material evidence came from the trustee, who had been made a competent witness by a pelease, Sir William Grant, as Master of the Rolls, says: “She swears to no feet or circumstance capable of being investigated or contradicted, but merely to a naked declaration, supposed to be made by the husband himself, admitting that the purchase was made with the trust money. That is, in all cases, most unsatisfactory evidence, on account of the facility with which it may be fabricated, and the impossibility of contradicting it. Besides, the slightest mistake or failure of recollection may totally alter the effect of the declaration.” And again, on page 519, it is said: “If evidence of this sort could be proceeded upon, standing unsupported, and in some degree .contradicted by the circumstances, it ought to stand wholly uncontradicted by other evidence.”
Keeping in view these authorities, which show what clear and satisfactory parol proof is necessary to establish a resulting trust, let us examine the proof now relied upon.
We have seen that the lease to G. Baughman is the instrument, in opposition to which Mrs. Greer is endeavoring to show a resulting trust in her favor. In his answer as a defendant, and in his testimony as a witness, he acknowledges that the lot was contracted for by him, as agent for Mrs. Greer, and that the improvements thereon were made by her and paid for with her means. His creditors have laid attachments upon this property, insisting that Mrs. Greer never had any legal or
He says, that about nine months after the contract had been made, the lease was executed to him by mistake, and when it was presented to him by the agent of the lessor, and the mistake was discovered, either the agent or he remarked it would make no difference, as he could convey it to Mrs. Greer. He does not recollect at what time he first mentioned to his mother-in-law that the lease had been executed to him. She had always said that the lot and improvements were intended by her for his wife. And the assignment from him was made at the instance and request of Mrs. Greer. After the execution of the lease he placed it, he says, in his safe among his private papers, intending to have it recorded the first time he should have occasion to go to the court house, but forgot it until urged by Mrs. Greer to make the conveyance, and after that was done it was placed in the hands of Mr. Ward, the trustee, who he supposed overlooked it as he had done before, and neither the lease nor the assignment was recorded until the 19th of September 1848.
Speaking of the improvements, Baughman says, he does not remember, certainly, what they cost, but believes the sáme to be about $1700, and was paid by the means of Mrs. Greer. Her means, at the time of payment, consisted chiefly of Baltimore city 6 per cent, stock. She had some cash to which she added by the sale of valuable jewelry and other personal property, the proceeds of which were put -into his hands, which he used in the purchase of "rail road notes,” (as they were called,) and invested them in city 6 per cent.
in his testimony, Baughman says, there Was a contract between Mrs. Greer and L. G. Shipley, by which the latter was to make the improvements according to a plan agreed upon; that the management of the details of the business connected with the leasing of the lot and making the improvements were attended to by Baughman, under the' direction of Mrs. Greer. That some money was paid to Shipley, whether she paid the same herself or through the witness, he dries not remember, but the chief payment was made as stated above.
Upon cross-examination this Witness says, that at sundry times, before and after his marriage, Mrs. Greer, he believes, did receive moneys “as heir-at-law of the estate’ of Caleb flaJJ.”
L. G. Shipley, a witness for the complainant, states, that he' built the bouse on the lot in dispute, under a contract which was presented to him by Baughman, on behalf of Mrs. Greer, she being first introduced to the witness by him; that the contract for the building was signed by the witness and Mrs. Greer, and witnessed by Baughman. That during the progress of the improvement several changes in the plan were made at the instance of Mrs. Greer. When the house was. completed she and her son, then of age, and Mr. Baughman’s family occupied it or moved into it. The witness received his payments from G. Baughman. At the commencement of the' building, Mrs. Greer told the witness the money which she' had for the building was invested in stock, and that she always wanted a few days’ notice when he wished for money, tío’ accordingly always gave notice to Baughman, who Mrs. Greer said was to act as her agent.
In the spring of 1843, Baughman offered the witness $300^ of stock in payment, which lie declined taking. The certificates of stock were handed to him, when, to the best of his ns
Thé proof shows, that on the l'7th of February 1843, Sloan,' White & Ob. agreed, in writing, to furnish L. G. Shipley, on account of G. Baughman, twelve hundred dollars in lumber, for Which they" agreed to receive in payment city of Ballimbre six per cent, stock, at $107 to the hundred, and that they' would also receive in payment of Mr. Baughman’s account,amounting to $227.14, city six per cent, stock, at thé' Sainé' price; all of said stock to be delivered oil or before thé first of May tlieP' ensuing. And', “in the event of Mr'. Shipley’s failure to complete Mr. Baughman’shouse, according to contract,” it was agreed to return to Baughman the residue of the stock which might be due after deducting the amount of Shiplby’s' account, together with Baughman’s account due at' the ddte of the agreement.
Gn this agreement is the following endorsement:
“Rec’d of Mr. George Baughman, this 2nd day of May' 1843, a certificate of city six per' cent, stock for thirteen hundred and thirty-three dollars TY-ff, with twenty dollars interest on sanie frbrn 1st July, being agreeable to the within statement. Sloan, Weéite & Co.”
C. B. White, of the firm above mentioned, testifies, that ófr one occasion Baughman told him,'or lie was led to beliéve, from what Baughman told him, that he was making tlie'iih vestment for his mother-in-law. This was when witness called on Baughman for a transfer of city stock, under the contract, and he then said the money, or stock, or notes belonged to his' mother-in-law, and he was making the investment for her.
It appears, from the testimony of the deputy register of- the city of Baltimore, that on the 29th of April 1843, by the order of G. Baughman, there was transferred to Sloan, White & Co., $1333.78 of six per cent, stock of the city; and in addition to this, the witness says, “there was more stock than that.”
The transfer cieili in the office of the Baltimore and Ohio
N. L. Wood says, he was applied to by Baughman for a lot for his mother-in-law, and as agent for J. H. McHenry,the witness agreed to lease the lot now in dispute, which he entered in his book to G. Baughman, without taking any notice in the book of who it was for, and the son of the witness drew the lease according to the entry in the book. After the lease was executed, it was handed to Baughman, and he said “it made no difference as he could make an assignment of the lot to Mrs. Greer.” The impression is strong on the mind of witness, that the whole transaction was for Mrs. Greer. Baughman told witness that she had some money which she wanted to invest in a liou'se, and he was doing the business for her.
Except L. G. Shipley, Baughman is the only witness who' gives any testimony tending to show, that Mrs. Greer’s means' or funds were applied to the payment of improving the property. And what Shipley says in regard to this is, that she told him the money she had for building, was invested in stock; that she always wanted a few days’ notice when he desired payment, and that Baughman was her agent. Shipley also says' Baughman once offered him $300 in stock, which he did not take. He thinks it was Baltimore and Ohio Rail Road stock, and to the best of his recollection he saw Mrs. Greer’s name on the certificates. In this however he must have been mistaken, as the proof is, that she had no such stock in her own name since 1840.
According to Baughman’s testimony, as already stated, Mrs. Greer had funds, which as her agent, he invested in stocks, in his own name, and with those means the improvements were paid for. This, however, is evidence coming from a witness deeply interested in defeating the claims of his creditors, for the benefit of his wife and children. And it is unsatisfactory on account of the facility with which it may be fabricated, and on account of the difficult}^ of investigating or contradicting
This witness, on cross-examination, says, he believes that Mrs. Greer, as heir at law of the estate of Caleb Hall, at sundiy• times before and after the marriage of the witness, did receive moneys from that estate. He merely states his belief on this subject; and without intimating how long'before or after the- marriage the moneys were received. Nor does he give us the slightest information, professing to be derived' from any record evidence relating to Mr. Hall’s estate, or as to who was the representative of the estate, by whom the moneys were paid. It is not probable that the witness was wholly uninformed in these respects, if he had such information as justified him in believing what he has stated, with regard to the receiving of moneys, spoken of by him.
Moreover, the testimony in support of the allegation, that Mrs. Greer had the means with which she could and did pay for the improvements, is not uncontradicted by other evidence. For surely the testimony of Josiah Cobb, Joshua Dry den, Joseph Baugher and Mary D. Turner, in relation to Mrs. Greer’s circumstances and condition in life, is quite sufficient to create a very serious d'oubt, at least, whether she possessed the means which could enable her to' make the requisite payments.
J. Cobb knew Mrs. Greer for more than thirty years. He knew her before and subsequently to the death of her husband, which he thinks occurred prior to the year 1830. After becoming a widow she dealt with witness, as a grocer, for a number of years. She had an account with him up to 1834 or 1835. He considered her honest as far as her means went, and she was a genteel woman, but appeared to be in straightened circumstances. Up to the year 1834, she owed witness a balance of $20.90, which he thought a pretty large balance for a person in her circumstances, and as large as he could afford to lose, and of course he desired that it should not be enlarged. She afterwards made two payments of five dollars each, on this debt, and the balance remained unpaid. She frequently spoke of her indebtedness to him, and of her wish "
Joshua Dryden says, he has known Mrs. Greer, from shortly after the marriage of her daughter to Mr. Baughman, “which he thinks took place about twelve or thirteen years ago;” (that is twelve or thirteen years prior to December 1855.) Very shortly after the marriage Mrs. Greer rented and occupied, for about a year, a house belonging to the witness. He knows nothing of her circumstances, only that she was tardy in paying her rent; but he always received it at last. He has no knowledge as to what property she had; and only knows her by having called on her to ask for his rent. She never let two quarters of rent be in arrear, ihough she was tardy. He thinks if she had owned property she would not have put him off so
Joseph Baugher testifies, that he has no knowledge of Mrs. Greer’s circumstances, except from what was communicated to him by her son-in-law, G. Baughman. He complained to the witness thqt he was obliged to support her and a son of her’s als.o. These complaints were made several times, perhaps frequently, from the first of January 1844, down to 1846 or 1847. Baughman and witness were on intimate terms. IJe has heard Baughman say, that the house was building out of the ladies’ pin money, by which witness understqod him tp paean the money furnished for house-keeping.
Mary B. Turner says, she knew Mrs. Greer from 1839 flown to 1842, who was then a widow. During that time the pircumstances of Mrs. G>'eer were limited. Witness thinks they were so, because she refused to take a boarder, unless the lady as a boarder would furnish her own room; Mrs. Greer stating that she was not able to furnish it. The application for board was made by the witness in behalf of a friend, a Mrs. Gregory, She did furnish her own room, and boarded With Mrs. Qreer abopt a year, when she broke up, stating tp Mrs. Gregory, that she was not able to keep a hoarding house, She kept lady boarders till then, but not to any great extent. She was then living in a house of Mr. Bryden’s; and witness was in the house every week. It was plainly furnished.
On cross-examination, Mary B. Turner says, her statement is from her own knowledge. She made the contract for Mrs. Gregory, and heard Mrs. Greer say, that Mrs. Gregory must furnish her own room, as she was unable to furnish it; and also heard Mrs. Greer say, she was not able to keep boarding house. Witness has no knowledge of Mrs. Greer’s circumstances, except from the particulars stated.
Should it be conceded, that in such a case as this a resulting trust may be established by parol proof, if sufficiently clear and convincing, we do not consider the present proof is of such
. We deem it proper to remark, that there is no evidence of any sum having been paid as purchase money, for the lease of the property, either by Mrs. Greer or by any one else. The lease contains a covenant for payment of rent as it might accrue, and such other covenants as are usually found in like instruments. There is none requiring the lessee to make improvements. The lessor covenants, that at any time within ten years from the date of the lease, if it shall continue to exist, the property shall be conveyed, in fee-simple, to G. Baughman, his heirs or assigns, on his or their paying or tendering in payment, to the lessor, his heirs or assigns, the sum .of $2500, and all arrearages of rent. But there is no pretence that any part of the $2500 has been paid or tendered.
The property in contest was attached, in several cases, as the property of G. Baughman. By agreement of counsel the proceedings in those cases were before us, and from them it appears there are several judgments upon such attachments, in favor of some of the defendants in this case, as creditors of G. Baughman. One of the largest of them is based upon a claim, bearing date prior to the assignment from Baughman to W. J. Ward, in trust; and some of those judgments were rendered on claims created after the execution of the assignment, but before it was recorded.
The parties agreed that the court should decree a sale of the property in dispute; and such a decree was passed. A sale having been made accordingly, the proceeds were brought in(o pourt, and it appears that the nett balance thereof is $3504.24.
There is no evidence, whatever, that Baughman, either at the date of the assignment, or since, had any other property than that in controversy. This being so, neither his wife nor his children can have any claim to the property or proceeds thereof, in opposition to his creditors, who have judgments on attachments, based upon claims existing prior to the date, or previous to the recording of the assignment. And such creditors, we think, are entitled to have the fund in court applied to the payment of their claims, according to their respective priorities.
By the decision below the bill was dismissed, and the counsel for the creditors seemed to think, if this court should be of opinion that Mrs. Greer has no claim, the decision below ought to be affirmed. But inasmuch as the nett proceeds of the property are in court, under the circumstances stated, we deem it proper to remand the cause to the Superior court of Baltimore city, without reversing or affirming the decree, for the purpose of having the fund in court applied, according to the views announced in this opinion.
In Griffith vs. Buck, & others, Ante, 102, the property in controversy, or a portion of it, was sold by a receiver, and the proceeds, with other funds, were brought into court. Upon appeal the injunction in the cause was dissolved, the order appointing the receiver was reversed; and although it was decided, that the sole complainant in the bill had no claim whatever, the cause was remanded without dismissing the bill. This was done in order that the funds in court might be properly disposed of under the direction of the court.
It is shown, by the agreement of counsel, that the motion to transfer the cause from the Superior court, sitting as a court of equity, to the Circuit court for Baltimore city, was made after the judge of the Superior court had pronounced his opinion, dismissing the bills filed in said cause. This being so, we think the motion to transfer was properly refused.
What has been said in the foregoing opinion, disposes of the appeal taken by Mary Greer, complainant in the original bill, and also of the appeal taken by Mary Jane Baughman, and others, complainants in the cross-bill.
Cause remanded, under the act of 1832, ch. 302, without reversing or affirming.