40 Md. 189 | Md. | 1874
delivered the opinion of the Court.
The late William Cost Johnson, by deed of the 14th of June, 1859, conveyed all his real and personal estate in Frederick County to the defendant in this cause, Thomas Johnson ; the real estate consisting of a farm called “Harmony Grove.' ’ William Cost Johnson died in 1860 ; and for several years prior to his death, and up to April, 1868, the plaintiff, Edwin M. Johnson, occupied the farm; and after the death of his uncle, William Cost Johnson, he set up claim to the right of possession of the farm in respect of some pecuniary claims against his uncle, and also against his father, the defendant, who demanded possession of the farm by virtue of his title under the deed of the 14th of June, 1859. The defendant had advertised the farm for sale on the 21st of March, 1868, and the plaintiff filed his
of thirty days from the date of the agreement; one thousand dollars out of the first payment made on the sale of the farm, “Harmony Grove;” and the other thousand dollars out of the second payment on said farm. The plaintiff, on his part, promised to give up and surrender to the defendant the immediate possession of the farm, and also all the personal property held l>y him which had belonged to the late William Cost Johnson, with certain specified exceptions. This covenant on the part of the plaintiff lias been performed, but the defendant has only paid the first instalment of five hundred dollars, of the sum agreed to be paid by him, and has wholly neglected or failed to pay the other two thousand dollars, and has neglected or refused to sell the farm to raise the fund with which to discharge his obligation. It is on these facts that the plaintiff has filed his hill in this case, asking an enforcement of the defendant’s covenant as a charge or lien on the land, and, in that view, praying that the farm he decreed to bo sold to raise the fund to pay off the amount due from the defendant on his covenant. The Court below decreed in favor of the plaintiff; and the first and most material question on this appeal is, whether the covenant creates a charge or lien, in the sense of a Court of! Equity, that can he enforced in the manner contemplated by the plaintiff's bill?
This case in principle does not differ from that of Legard vs. Hodges, 1 Ves., Jr., 477, and same case on rehearing, 4 Bro. C. C., 421. There, a party having obligated himself to pay a certain sum for a particular purpose, as means of raising that sum, covenanted with trustees that he would set apart and pay to such trustees one-tliird part of the annual profits of his particular estates; and failing to make the application of the profits according to the covenant, and having appropriated them to other purposes, the trustees filed their hill to have a trust declared as to the third of the profits of the land; and although it was there contended, as it has been contended hc-re, that there.was no lien upon the land, hut a mere personal covenant only, It was held, that the covenant created in equity a lien on the land against the covenantor, and those claiming under him with notice. And, in deciding the case, the Lord Chancellor said that there was a maxim which he took to he universal, and that was, wherever persons agreed concerning any particular subject, that in a Court of Equity, as against the party himself, and any claiming under him voluntarily or with notice, raised a trust. To the same effect is the doctrine fully stated by Mr. Justice Story, Eq. Juris., sec. 1231. He there says: “ Indeed, there is generally no difficulty in equity in establishing a lien, not only on real estate but on personal property, or on money in the hands of a third person, wherever that is matter of agreement, at least against the party himself, and third persons, who are volunteers, or have notice. For it is a general principle in equity, that, as against the party himself, and any claiming under him, voluntarily, or with notice, such an agreement raises a trust.” See also Power vs. Bailey, 1 Ball & Beat., 52. And such being the well established principle upon the
The case of Berrington vs. Evans, 3 Y. & Coll., 384, relied on by the defendant, is not an authority to affect this case. There the covenant was that if the covenantor did not pay certain debts by a given day, he engaged to sell so much of his estates as might be necessary for that purpose. The learned Baron of the Exchequer, wdio decided the case, said that it did not appear to him that the'covenant was anything more than a personal undertaking ; hut if it were, the case of Williams vs. Lucas, 1 P. Wms., 430, n., shewed that-the words of it -were too general to create a specific lien upon the lands of the covenantor. This latter reason was all-sufficient for the case, for it was expressly decided in the case referred to in P. Wms., and also in the case of Freemoult vs. Dedire, 1 P. Wms., 429, that a covenant to mortgage or settle lands to secure sums of money, without mentioning or referring to any certain lands, was not sufficient to create any specific lien; and as the covenant in the case of Berrington vs. Evans, according to the construction of the learned Judge, referred to no particular lands or estates, it created no specific lien, and hence it could be nothing more than a mere personal undertaking. That case, therefore, can have no application to this, even conceding it to have been well decided; a proposition in regard to which we express no opinion, in view of -what was held in the case of Wellesley vs. Wellesley, 4 My. & Cr., 561. See Mornington vs. Keane, 2 De G. & J., 293.
It is thought that, as the covenant fails to fix any definite time for the payment of the money, or to designate any time within which the farm should be sold, or how to be sold, the defendant was left free to exercise his discretion
But, in reply to this suggestion, it is sufficient to say, that there is no such want of certainty and definiteness in the agreement as to prevent its execution by tbe Court; and as it is alleged and proved that tbe defendant, although repeatedly requested, has utterly neglected and refused to sell the farm, hut retains it for his own profit, and as a reasonable time had elapsed before filing the bill, a Court of Equity, under such circumstances, will not permit him, under the pretence of exercising a discretion as to the time and manner of sale, to evade the performance of his contract. Wellesley vs. Wellesley, 4 My. & Cr., 579.
The money agreed to he paid the plaintiff out of the proceeds of sale of the farm became due and payable after the lapse of a reasonable time, within which the farm could have heen fairly sold, and tlie proceeds of sale realized by the defendant on tlie usual and ordinary terms of sale; Farrell vs. Bean, 10 Md., 233; Triebert vs. Burgess, 11 Md., 452 ; and this time having expired, and the defendant failing to show any good reason why he has not performed his contract, the laud has become liable to be proceeded against for the enforcement of the charge on it.
Another objection to the decree of the Court below is, that, instead of appointing a trustee to make the sale, it should have required the defendant, himself, to make the sale in execution of the contract. This objection we do not regard as well founded. The defendant, by his own neglect or refusal to perform his contract, has occasioned the present application for relief, and as the Court proceeds with the matter upon the footing of a trust, it is quite competent to it, in order to make its relief effectual, to appoint an office)' of its own to execute its decree. The defendant lias heen allowed ampio timo for the sale of the farm or the
The decree appealed from will he affirmed, and the cause remanded that the decree may he executed.
Decree affirmed, and cause remanded.