Marvin v. Brewer

30 Md. 247 | Md. | 1869

Miller, J.,

delivered the opinion of the Court.

The bond of the 16th of March, 1814, refers in express terms to the articles of agreement of the same date, and must be construed in connection with and as given in execution thereof. The two papers constitute in fact one executed and consummated agreement. They are very unskilfully drawn, but the intention of the parties, which must govern their construction, is sufficiently plain. They are in effect a contract by which Vinson and wife sold to Brewer the land therein described belonging to the wife, for the sum of $570, the yearly interest upon which he was to secure and pay to the husband during life, and for the principal he gave his bond, payable immediately after the husband’s death, to Chiswell, his executors or administrators as trustee for the benefit of, and by the trustee to be paid over to Mrs. Vinson if she survived her husband, and if she died before him then to the person or persons to whom she might dispose of it by will, or to her heirs if she died intestate. This is the true construction of the papers and effectuates the obvious intention of the parties.

The omission in the bond of the sum to be paid is supplied by the reference to the agreement. The legal obligation on the part of Brewer, which it is the object of this suit to enforce, was to pay $570, immediately after tbe death' of William Vinson, to Chiswell or to his'executors or administrators. The duty of Chiswell, or his personal representative, was to pay the money when collected to Mrs. Vinson, or to her legatees or heirs as the case may be, and this duty can be enforced by the beneficiaries by appropriate proceedings in the proper forum. The right of action at law on the bond was unquestionably in Chiswell and his personal representatives. The doctrine of executed uses or trusts has no application to this case. The bond must be enforced against the obligor by an action at law, and the suit must be brought by the obligee or his personal representative; the action was therefore properly brought by the administratrix of Chiswell.

(Decided 9th March, 1869.)

The declaration states all the facts necessary to maintain the action against Brewer. It states the death of Vinson the husband, and on the happening of that event his obligation to pay arose, and was in no way dependent on the fact whether Mrs. Vinson survived her husband or not, or died intestate or not. Nor was it necessary, to aver the land had been conveyed by a deed. The bond is under seal, was given in performance of the agreement to sell, and when signed, there was an executed contract by which the equitable estate and interest in the land passed to Brewer from its date. If he did not and could not obtain a perfect unincumbered legal title by reason bf any defect or incumbrance existing at the time of the contract, or if there be any other equitable defence it must be availed of by resort to-the appropriate forum.

These views dispose of all the questions presented by the record. There was error in overruling the demurrer to the pleas for which the judgment below must be reversed and the case sent back under a procedendo.

Judgment reversed and procedendo awarded.