| Md. | Dec 15, 1857
delivered the opinion of this court.
The will of Charles Carroll of Carrollton, contains three clauses, devising property in trust for his daughter Mrs. Catón} to which clauses particular reference has been made, in argument, for the purpose of ascertaining the nature and extent of her authority or right to dispose of, or to lease the property in dispute. The deed creating her title, conveyed the property to the trustees therein named, “in trust for the uses and trusts specified and declared of and concerning the property bequeathed to them in trust for the use and benefit of Mrs. Catón,” by her father’s will.
The appellants contend, that in view of the recitals in the deed, in connection with the provisions contained in the first and third clauses of the will referred to, the deed must be re
The appellee insists, that the deed should be construed as being governed by the second clause of the will, which, instead of simply giving her a power to dispose of the property devised, conferred upon her the unlimited and absolute right, of disposition.
Our view of the case renders it unnecessary to decide which is the proper construction of the deed.
The defendants’ exhibit A, is the instrument on which the complainant chiefly relies in support of his bill, and is as follows:
“Maryland, Si: — Articles of agreement, entered into this --day of July 1846, between Mary Catón of the city of Baltimore, on the one part, and W. H. Carpenter of Baltimore county, on the other part; witnesseth, that for and in consideration of the covenants herein stipulated, on the part of W. H. Carpenter, the said Mary Catón doth engage to grant a lease to the said W. H. Carpenter, for a period hereafter stated, for all that part or parcel of land,” &c. And after describing the premises, the instrument thus proceeds: “and the said Mary Catón, engages to give a lease for the foregoing premises, as soon as a house shall be built, of the value of the annual rent and all other conditions be complied with, for the term of ninety-nine years. And the said W. H. Carpenter, engages to pay to the said Mary Catón for the first year, one dollar and five cents per acre, annually, from the first day of January 1847, in half yearly payments, as a rent for the said premises, clear of all deductions for taxes, levies, contributions or otherwise, for the next nineteen years, from the 1st January 1848, two dollars and ten cents per acre, per year, in semi-annual payments as aforesaid, clear of all deductions as aforesaid, and thereafter two dollars and fifty cents, per acre, per year, with the privilege of buying out at $41.66, forty-one dollars and sixty-six cents per acre. That he will within three years build a house on the premises of stone, or brick, or wood, worth an annual rent equal to the rent of the premises. For the full performance of each and every article of the above
Signed, sealed and delivered in the presence of, the same having been first read to Mrs.
Catón. — M. C. Jackson.”
We need not inquire whether this instrument, according to the English decisions, should be construed to be a lease, or an agreement for a lease; for if, irrespective of our registration laws, its language would make it a lease, then being for more than seven years, and not having been acknowledged and recorded, as required by those laws, it could pass no title at law. And if, under its very defective execution, it could have any effect in a proceeding in equity like the present, it could only be the effect which should be given to an agreement for a lease.
In Anderson vs. Critcher, 11 G. & J., 450, the appellee sued the appellant in an action of covenant to recover rent, under a contract signed and sealed by both parties, dated the 24th of April 1833, in which it is said, Critcher “binds himself, his heirs, &c., to give a lease for ten years,” &c. The contract provides, “that the house which the said Donohoo and Anderson may put up for their own convenience, they can take down and carry off at any time, but they must give said Critcher or his assigns, notice of the intention to give up the property on or before the month of June, (otherwise it will be theirs for another year.) The said Donohoo and Anderson, bind themselves, their heirs, <fcc., to pay to the said Critcher, one hundred and fifty dollars, for the rent of one thousand eight hundred and thirty-four, and two hundred dollars per year after, the rent to be paid (or carry interest) after the expiration of the fishing season.” The court did not deem it necessary to determine, whether the agreement was a lease or a mere agreement for a lease. They however concurred
Whether the deed to the trustees, for the use and benefit of Mrs. Catón, is to be regarded as having reference to the second clause of her father’s will, or to the first and third clauses; and consequently, whether she had a life estate with a power to lease, or had the “right of absolute disposition” of the property, in our'opinion the appellee is not entitled to the relief he seeks.
We think the alleged contract was an inchoate instrument, which never passed any interest or title, legal or equitable to Carpenter. It was manifestly prepared for the purpose of being executed by both parties. Mrs. Catón, alone, signed it, leaving the day of the month blank; the presumption from which may justly arise, that the blank was to be filled up when the paper should be executed by Carpenter. There is no proof, whatever, that he ever called for the purpose of sign
The appellee relies upon his possession of the property as a circumstance in support of his alleged contract with Mrs. Catón. On this point his witness, Mr. Barroll, says, “Mr. Carpenter, the complainant, took possession under the contract, and still continues in possession.” This, no doubt, was according to Mr. Barroll’s understanding of the matter. But it will be seen from the admission of the parties, and the papers filed in the cause, that the appellee took possession on the 21st of May J.846, in pursuance of an order from J. H. Stimpson; whilst the contract signed by Mrs. Catón, is dated -- July 1846. The admission alluded to is:
“It is further admitted, that the order herewith filed (marked ‘A.,’) directing the surrender of the property in question to William II. Carpenter, was signed by said Stimpson, and delivered to said William IT. Carpenter at the date thereof, who received immediate possession in pursuance of it.”
May 21st 1846. » Mart Catón.
Per, James H. Stimpson.”
This order itself, is not a lease for ninety-nine years, nor is it an agreement for a lease for that term, such as a court of equity would enforce against the appellants by a decree for specific performance. If for no other reason, it is defective in not showing what rent was to be paid. Nevertheless the admission is, that in pursuance of it, Carpenter took possession immediately after its date. And surely the possession so taken in May, cannot, with propriety, be regarded as showing that his subsequent holding was under the contract of July, with the authority of Mrs. Catón, or as evidence that she intended that contract should be binding between the parties, without Carpenter’s signature, when the form of the instrument showed it was prepared for both to sign, and in the absence of proof of its delivery, or of any intention to deliver it, in its inchoate state; and when by its terms the rent was not to commence until the 1st of January following; before which time she died. It is also proper here to remark, the language of the instrument cannot be considered as indicating a design that the tenancy, supposed to be created by it, should begin at an earlier date than when the rent was to commence.
The record contains an admission, “that sometime after the death of Mrs. Mary Catón, certain of the property which descended to her daughters as tenants in common, was assessed and described and divided, in and upon certain schedules and plats filed in the court of chancery, in a cause wherein the Marchioness of Wellesly and others, were complainants, and Emily McTavish and others, were defendants, and that certain portions of said property, were by a decree of said court passed at June term 1851, in said cause, vested in John E. Howard, as trustee of said Lady Stafford, one of the daughters of said Mary Catón, and that among the property so described, the property now in question is described in schedule
In view of these admissions, it is contended, that Lady Stafford, is estopped from denying that Carpenter is lessee under the agreement in question, he being described as such in the proceedings under which she claims. But those proceedings only assigned to her, in severalty, by partition, property previously held by her in common with others, under a title not derived through the partition case. And such a description of the property in such a case, the appellee not being a party to the same, we do not think can estop Lady Stafford from relying upon defects in the title of the appellee, as a tenant for ninety-nine years, when it is perfectly manifest from his bill and evidence, that the foundation of the title claimed by him, is based upon an instrument, which appears upon its face to be defective as a lease for the term he claims. In regard to the principles regulating estoppels, see Alexander vs. Walter, et al., Lessee, 8 Gill, 248. Isaac vs. Williams, 3 Gill, 288.
Although the description of the property in the partition case, was an admission by the parties that it was in the tenancy of Carpenter, still that admission was not such an acquiescence in the contract of July 1846, as would amount to a ratification or confirmation of it. To give it such an effect, it was necessary that those making the admission should have had full knowledge of all the facts affecting their rights.
In Gray vs. Murray, 3 Johns. Ch. Rep., 188, Chancellor Kent says, “it is a well established, as well as a most reasonable principle, that to constitute a confirmation, the party confirming must be fully apprized of his rights.”
In Flagg vs. Mann, et al., 2 Sumner, 563, Judge Story says: “The doctrine stated at the bar is well founded, that, in
In Bennett vs. Colley, 2 Mylne & Keene, 225, (7 Eng. Ch. R., 347,) the Lord Chancellor says, “'it can never be maintained, that the acquiescence of a party, under ignorance of his rights, operates as a waiver of any claim, or as a confirmation of any thing done against him. Neither can it be seriously contended, that the proof of ignorance, or want of notice, lies on the party against whom such acquiescence is alleged.”
In Shannon vs. Bradstreet, 1 Schoales & Lefroy, 52, 73, the Lord Chancellor mentions the fact, that the remainder-man had knowledge of the agreement under which the tenant held the premises; and that he also knew the money had been laid out in improvements.
According to Bennett vs. Colley, proof of ignorance, or want of full knowledge of the facts connected with the contract of July 1846, does not lie upon Lady Stafford. And it may very correctly be said, the circumstances disclosed do not warrant the conclusion, that she had such full knowledge of the nature of the paper dated-July 1846, and of the mat-
ters relating thereto, as will render the admission in the particular case, in regard to the tenancy of Carpenter, a confirmation of his title under the contract relied upon by him. The instrument was never put upon record. Lady Stafford lived in England, and so did two of her sisters. The bill states that the contract had been lost or mislaid by Mrs. Catón or her agents, and could not be found for a long period after her death.
According to the bill, it appears that “the trustees in whom the property was intended to be vested, refused to accept said
The declarations and conduct of Mr. Pennington, in regard to the trusteeship, when considered in connection with what is said in the bill, in reference to the refusal of the trustees to accept, show that he did not consider hirdself as a trustee having authority to act in the premises. When requested to receive the rent, he declined, saying “that he had prepared a deed creating himself a trustee, which he was about to send over to England to be executéd by Lady Stafford and her sisters, Mrs. Caton’s daughters^ that when that deed was executed, it would be time enough to pay the rent and get the lease.” Subsequently he said: “They refused to execute the deed to him, and his agency and attorneyship ceased. ” Under those circumstances he should not be considered an existing and acting trustee in regard to the premises in question, so that his declarations should be binding upon Lady Stafford and her sisters. And conceding that for them Mr. Pennington was attorney, when, according to the evidence, he is said to have stated, “He was aware of the existence of Mr. Carpenter’s contract, had seen it, and that it would be respected.” And admitting that Mr. Lucas was solicitor for the defendants when he is said to have lent to Mr. Barroll the paper in dispute, “as the contract between the parties,” still the proof in the cause, in reference to what Mr. Pennington said, and what was s'aid or done by Mr. Lucas, cannot render, or assist in rendering valid and binding upon their clients, the paper of July 1846. An attorney, either at law or in fact, has no authority either to make a lease, or to ratify or confirm an imperfect one, or to perfect an inchoate agreement for a lease of property of his principal or client, unless authority for such purpose is expressly given. In relation to the powers of an attorney, see Doub vs. Barnes, 1 Md. Ch. Dec., 133, and same case in 4; Gill, 20. White vs. Davidson, 8 Md. Rep., 186.
In 4 Greenleaf's Cruise on Real Property, marginal page 229, title deed, ch. 18, sec. 25, it is said: “Although a court of equity will, in many instances, aid a defective execution of a power, yet it will never interpose in the case of a non-execution of a power; which always leaves it to the free will and election of the party to whom the power is given, either to execute it or not. For which reason equity will not say he shall execute it, or do that for him which he does not think fit to do for himself. And the intervention of death between a man’s resolving to execute a power, and his actually executing it, is not of itself, even in cases where the act is of such a nature as a man is under an obligation to perform, a ground for the interposition of a court of equity in favor of the person intended to have been benefited by the doing thereof, although some steps be taken towards completing such intention.”
Formerly, in England, an opinion prevailed, that unless the title of a lessee under a power was effectually made, by a complete and perfect execution of the power, the right of a repaainder-man to possess the estate free from the lease, would take place of the right of the lessee, as superior to it. And that, in such a case, the lessee had no claim to any equitable interposition in his favor, but his title could only rest on the legal execution of the power. 2 Sugd. on Pow., marg. page 144. 16 Law Lib., 80. But this doctrine has been modified, and courts of equity have granted relief to lessees against remainder-men, in cases depending upon equitable circumstances.
í£ I approve of this draft, until a survey can be had, so as to ascertain the rent. Mr. Shannon may execute a short memorandum to me, according to the terms of this draft, and may have immediate possession.
29th October 1790. S. 13.”
A memorandum was accordingly prepared, (but whether by Sir Samuel, or by the plaintiff, did not appear,) it was signed by the plaintiff and delivered to Sir Samuel, who delivered a copy or abstract of it, in his own handwriting, to the plaintiff, the original remaining in the custody of Sir Samuel. The memorandum was consistent with the agreement already stated.
Immediately after the execution of the memorandum, the plaintiff entered into possession, and subsequently laid out more than =#200 in improvements. No leases were ever executed.
In May 1792, Sir Samuel died, leaving the defendant, Sir Simon Bradstreet, his eldest son, and entitled to an estate-tail in the lands in question. The defendant came of age in November 1792, up to which time the rent was paid to his mother and guardian, by the plaintiff, and afterwards it continued to
For nine years after the remainder-man arrived at age, the rents were received by his agents, without his making any objection, during that time, to the tenant’s right to the premises, although before and after his arrival at age, he had a knowledge <of the agreement under which the tenant held the premises. And speaking (on page 73) of the money expended in improvements, the Lord Chancellor says, it would be absurd to suppose it was not laid out on the faith of the agreement. There seemed to be some doubt, or controversy, whether this money had been laid out till 1794; the Lord Chancellor, however, rather thought it was expended before. Entertaining this belief, he says: “But if not laid out till then, it was laid out in confidence of the defendant’s acquiescence in the agreement, and, I think, rather strengthens the case of the plaintiff. It appears that the defendant knew the money was laid out; if he meant to avoid the agreement, he ought to have given the tenant immediate notice, and it strikes me that his not dor . ing so, might form a distinct ground of equity against Sir Simon Bradstreet.”
In the present case, not one dollar of rent was paid to Mrs. Catón, nor has any rent been received by either of her daughters, or by any one for them, or for either of them. And it is certain that neither before nor since the decease of Mrs. Catón, has the appellee expended upon the premises in question any money, either in buildings or other improvements. We need look no further than the bill itself; for the correctness of this remark. The appellee there alleges his. belief “that by law he cannot be made to pay, and ought not to pay, rent for the said land for a period when, by reason of the cloud upon his title, and the great uncertainty of his getting a title thereto, the land was idle, and wholly useless and unprofitable to him.” And this, uncertainty in regard to getting a title, is relied upon as an excuse for his not having erected the building on th.e. premises, according to the term? of the. contract.
Decree reversed, injunction dissolved, and bill dismissed.