32 Md. 402 | Md. | 1870
delivered the opinion of the Court.
In May, 1799, Richard Owings and Isaac Paul purchased from Richard Odie a parcel of land containing one hundred and twenty-seven acres, and it was conveyed to them, as joint tenants, for the consideration of £300, current money. In October of the same year, James Carey conveyed to Richard Owings, in consideration of £1200, another parcel of land containing about thirty-five acres, consisting, principally, of the same tract, Winoasen Neck, mentioned in the deed to Owings and Paul, with the buildings and Mills, &c., thereon, known as Guilford Mills. The business of milling was carried on by Owings and Paul, as partners, for' some years thereafter at the Mills, appearing from the deed in evidence, to have been the property of Owings. In 1813, the' partnership was dissolved, and Owings agreed to sell to Paul all his interest in the entire property, and delivered possession.
“April 20th, 1818. I this day have agreed to take $5,000 for my right and interest for Guilford Mills — which is now bound by a judgment held by Mr. Richard Owings, and under execution for the same — and all the equitable right, title and interest I have in the land adjoining — which shall be clear of the right of dower.”
The possession of the property was delivered by Paul to Owings, who afterwards sold it to Poulton, against whom ho recovered a judgment for the purchase money remaining unpaid, under a fieri faeias, on which the property was subsequently sold by the sheriff, and purchased by James Owings. James Owings filed a bill against Paul’s representatives for a conveyance of Paul’s interest, and Paul’s representatives filed a cross-bill against the executors of Richard Owings to enforce the payment of the $5,000 purchase money mentioned in the paper, and interest. This is the case before the Court, and it depends on the effect of the above recited paper.
The appellants insist that the paper is the written contract of sale, and that parol evidence is inadmissible to prove any fact relative to the contract. They allege in their answer to Owings’ bill, and in their cross-bill, that the agreement was that Owings would purchase all Paul’s interest in the two tracts referred to, “subject to the judgments in favor of Owings for the sum of $5,000,” and in their cross-bill, that “it was arranged and understood between the said Richard
The paper does not express, unequivocally, the agreement as set out in the answer and cross-bill. It does not disclose, by its terms, the purchaser, or any certain description of the property, nor the manner or terms of payment of the purchase money, as alleged by the appellants or by the appellees.
It is true, as claimed by the appellants, that Owings, in his original bill and in his answer to the cross-bill, relics on the paper as evidence, but at the same time he states that the contract was that the '$5,000 was to be applied to and credited on the judgment against Paul. Both parties agree that parol evidence is admissible to shew that Owings was the purchaser, and to describe, with certainty, the property intended to be sold, and the only disputed question is whether that species of proof is admissible to shew the manner or terms of payment of the purchase money; whether, as alleged by one party, it was to be credited on, or applied to the judgment; or, as claimed by the other, Owings was to release his judgments, proceed no further on them, and pay Paul the clear sum of $5,000.
In Owings vs. Baldwin & Wheeler, 8 Gill, 352, the Court, speaking of this identical paper, says: “ this paper of itself, if capable of perpetual preservation, cannot be regarded, either at law or in equity, as transferring any title to the property mentioned therein to Richard Owings, or to anybody else; it is nothing more than the written declaration of Isaac Paul, that he had, on that day, agreed to take for it the sum of money he named. But that Richard Owings, or any other person, was in treaty. for its purchase, is a fact of which the
It is contended by the appellants, that the question in this case is not controlled by the opinion of the Court in Owings against Baldwin & Wheeler, because the evidence of Brown, one of the witnesses in that case, is not in this, ho being dead, and that the testimony of Basil Owings is excepted to in this case, and was not in that. Is the evidence of Basil Owings admissible in this case ? would seem to be the only question. He proves that the purchase money was, by the agreement between the parties, to be credited on the judgments, and although Brown proved, in the former case, many other facts tending to establish and confirm this point, still, if it be established by competent evidence, it must be held sufficient until rebutted.
The case of McCreary vs. McCreary, 5 Gill & 147, seems to be identical with this case on this point. In that case, the defendant offered in evidence a schedule and valuation of sundry articles of personal property, at the foot of which was the following statement made and signed by the appraisers: “The 17th of May, 1830: Be it remembered, that Benjamin McCreary and James McCreary, both of Harford county, and Slate of Maryland, having called on us, the subscribers, to value the horses, cattle and hogs of the said Benjamin McCreary, which the said James McCreary is to take, hold and possess as his property, and only use at the above valuation. In witness whereof, we have hereunto subscribed our names this day and date above written,” and proved that the articles contained in said schedule were delivered over, at said valuation, to the plaintiff. The plaintiff, James McCreary,
The same question, in principle, was decided by the Court in Creamer vs. Stephenson, 15 Md., 211, when a bond had
Whether, in this case, the paper in question evidenced the contract between the parties, or constituted only an offer by Paul, and the minds of the parties met in a contract on a proposal by Owings of specified terms and conditions, on which he was willing to accept Paul’s offer; and on Paul’s agreement to those terms and conditions, it is not material to determine. In either ease, parol proof is admissible.
The testimony of Basil Owings must, we think, conclude the case. He proves that the agreement was, that the five thousand dollars were to be credited on the judgment of Owings against Paul. The appellants have offered no proof to sustain their averment, that Owings was to release his judgments against Paul, and to proceed no further on them, and was to pay Paul the clear sum of five thousand dollars; but have relied in argument, on the circumstances of the case as furnishing this inference.
The fact that Owings a few days after his purchase from Paul, sold the property for over eleven thousand dollars, was
Tiie inferences which might be deducible from the facts and circumstances detailed in the record are numerous and conflicting, and we forbear further remark on them in vipw of the positive proof.
The testimony of Henry H. Owings may be omitted and the result reached is the same. We have not based our opinion on it and it is consequently unnecessary to decide on the exceptions to it. The exceptions to that of Basil Owings are overruled.
Whilst we think that the decree must be affirmed, yet there are circumstances which render it proper that costs shall not be allowed against the appellees. Mr. Owings might have
Decree affirmed 'without costs.