54 Md. 312 | Md. | 1880
delivered the opinion of the Court.
The question presented hy this appeal is, whether a sale reported hy the appellees, as trustees, to the Circuit Court for Prince George’s County, in the matter of the real estate of Anne Elizabeth Wootton, deceased, should he ratified ? The deceased, hy her last will and testament, dated the twentieth of November, 1866, duly executed to pass real estate and admitted to probate hy the Orphans’ Court of said county, devised and directed, that when certain mortgage debts therein mentioned should become due, if they should become due during the life of her mother, Daniel Clarke, as trustee, and her brother, Eichard Wootton, should, in their discretion, have power to sell and convey so much of the real estate of which the testatrix died seized and possessed, as might he necessary to pay the said mortgage debts, or to raise hy mortgage upon the said
Mr. Clarke having died in the interim, on the twelfth of April, 1878, Messrs. Wootton and Roberts filed their report in the said case, setting forth the preceding matters and sale, and further reported : “ That the aforesaid sum of money not being sufficient for the payment of the mortgage debt, as well as a certain judgment debt due by the said Anne Elizabeth Wootton to a certain John T. and Richard Hardesty, the said Daniel Clarke and Richard Wootton did, on or about-February, 1875, sell unto the said John P. Hopkins another portion of the real estate of the said Anne Elizabeth Wootton, containing fifty-nine and one-half acres, at and for the sum of $22.50 per acre, amounting in the whole to $1338.75 ; that the said John P. Hopkins paid to the trustees, on account of said purchase, the sum of thirty dollars in cash, and took possession of said portion of said real estate last sold, and has been in possession thereof since that time, receiving and appropriating to himself the issues and profits therefrom, but has failed, to the present time to pay any further portion of said purchase money; that since said sale, on or about the first of May, 1876, the said Daniel Clarke died, before having reported, together with the trustee, Wootton, the sale for ratification. The trustees, therefore, deeming said sale advantageous to said estate, recommend the same to the Court for ratification.”
On this report, an order of ratification “nisi” was passed.
The appellant filed an answer to the petition and report of the appellees, and replying to that portion, in regard
Messrs. Hopkins and Wootton depose to the making of a verbal agreement for the purchase of a lot of fifty-nine and a half acres; hut they agree in nothing else, and flatly, and broadly contradict each other. Mrs. Elise Wootton, is the'only other witness, who was present at an interview between Messrs. Clarke and Wootton and the appellant.
“ She heard the conversation between Messrs. Clarke, Wootton and Hopkins, in relation to the fifty-nine and a
This evidence turns the scale in favor of Mr. Wootton's representation, that there was a final agreement on the part of the appellant to take the second portion of the land, and pay for it; yet it supports Hopkins in his assertion, that there had been an understanding between Wootton and himself, that Wootton’s debt to him was to he credited in payment for the land, that the inducement for the purchase was to secure a large debt, standing upon open account and unsecured. Neither the report, nor the evidence furnishes any data of the terms of the contract, or the subject-matter, in definite terms. There is no description of the property by which it can he located, no time fixed for the payment of the purchase money, hence the Court below assumed the terms were cash.
Such an assumption might he very probable, if the appellant’s theory, that his debt was to he paid, prevailed, hut it is very unlikely otherwise. Neither mere occupation of the premises, without showing it was in pursuance of the contract to he performed, nor payment of part of the purchase money, constitutes such part-performance as
Order reversed, dec.