38 Md. 298 | Md. | 1873
delivered the opinion of the .Court.
The bill in this case was filed for the purpose of procuring the specific execution of an alleged contract,
The bill alleges that, in the fall of 1866, the plaintiff was requested by his uncle, the late Richard J'. Worthington, to take possession of his real estate, known as the “Bloomfield Farm and Race Course,” containing about twelve hundred acres of land, more or less, and to work and manage the same as a tenant, upon the agreement and understanding that the profits should be equally divided between them; that the plaintiff did take possession of the farm, and cultivate the same under the agreement, until some time in the month of April, 1869; that during this period the uncle repeatedly assured the plaintiff that he would devise the farm to him; and that the uncle did execute a will on the 29th of January, 1868, whereby he devised to the plaintiff an equitable life estate in an undivided half of the farm. That subsequently, and after the occurrence of a disagreement between the uncle and the plaintiff, this will of the 29th of January, 1868, was cancelled, and another will, dated the 21st of January, 1869, was executed, wherein no provision whatever was made for the plaintiff. It is then alleged, that the plaintiff remained in charge of the farm until some time in April, 1869, when, in consequence of the disagreement between himself and his uncle, the agreement between them was rescinded, and the plaintiff vacated the farm; that the uncle thereupon employed a man by the name of Slade, to work and cultivate the farm in the place of the plaintiff, but soon becoming dissatisfied with Slade, and being desirous to re-establish friendly relations with the plaintiff, and to secure his services upon the farm, he opened negotiations with the plaintiff, proposing that if the latter would pay to Slade the money necessary to
It is further alleged, that the plaintiff was aware of the existence of the will of the 21st of January, 1869, at. the time of entering into, the agreement with the uncle, but that he did not know until after the uncle’s death that the, latter had tailed to revoke it, as he had frequently declared his purpose so to. do, and to make, his will conform to. the agreement, with the plaintiff.
By the cancelled will the testator gave to the plaintiff an equitable life estate in one-half of the real estate in controversy, with other property, and appointed him one of his executors. And by the last will no provision is made for the plaintiff at all, but the real estate in question is devised to one of the testator’s brothers, in trust for the use of two grand-nieces, and in the event of their dying without issue living, then to a niece, Mrs. Susan J. Mil-nor, in fee.
The adult defendants, by their answers, deny the existence of the contract and part performance thereof, as charged in the bill, and, consequently the plaintiff is put to full proof of his case. The contract alleged is evidenced by no writing whatever, but rests entirely on parol as contradistinguished from writing. The Statute of Frauds has not been invoked or relied on by the defendants in their answers; but where a parol contract, within the Statute, is set up by the plaintiff, and the defendant by his answer denies the making of the contract, it is not necessary for him to plead the Statute or insist on it as a bar; but the plaintiff, in order to entitle himself to the relief prayed, must, at the hearing, fully establish the contract as alleged, and such acts of part performance thereof as will take the case out of the Statute. Billings-lea vs. Ward, 33 Bid., 48.
The Court below was brought to the conclusion that the contract alleged was sufficiently established and partly performed as to part of the real estate mentioned in the bill, and decreed execution accordingly, by appointing a trustee to convey such part to the plaintiff. From this decree there have been cross-appeals ; and the whole case has been most fully and ably argued at the bar of this Court by the solicitors of the respective parties.
In this case, seeing to what standard the proof must be measured, we are of opinion that the plaintiff has failed to relieve his case of all rational doubt as to the factum of the contract alleged. That there were hopes raised and expectations created on the part of the plaintiff, by the conduct and deelaratious of the deceased, the evidence abundantly shows; hut that they assumed the solemn form and obligation of a distinct and definite contract in respect to the devise of the farm, we think may and does admit of serious question. The plaintiff'
But turning to the conduct of the plaintiff, how did he understand the transaction between himself and his uncle? Did he understand from the beginning that it was a bind
The competency of Mrs. Milnor as a'witness has been excepted to, on the ground that she is a party to the suit for the enforcement of a contract against a deceased party’s estate, and that she is interested in the subject-matter in controversy. But there is nothing in the Evidence'Acts of-1864 and 1868, that would exclude her, not being within the exceptions of those Acts; and her interest being altogether contingent and remote, she would be competent even according to the common law rule of evidence. The exception therefore cannot prevail.
Then, upon the whole evidence bearing upon the question of the existence of the alleged contract, without entering further into the details of it, and laying out of view the declarations of the deceased which have been excepted to by the plaintiff', we are not satisfied, to the exclusion of all rational doubt, as to the making of the contract or the real understanding and intention of the
But if we could surmount the doubt in regard to the existence of the contract, and conclude that it was established with sufficient certainty, we should then be brought to the question, whether the contract is of a character to be specifically enforced by a Court of Equity. Specific execution of contracts by Courts of Equity is not a matter of absolute right in the party applying, but of sound discretion in the Court, to be exercised upon consideration of all the circumstances of each particular case. The Court will be controlled, of course, in the exercise of its discretion, by the established doctrines and settled principles upon the subject; but it does not follow, as matter of course, that because the legal obligation under the contract may be perfect, therefore the equitable power of the Court wilL be exercised to compel or effect specific execution. In every case, the question is, whether the exercise of the power is called for to subserve the ends of justice ; and unless the Court is satisfied that the application to it, for this extraordinary assistance, is fair, just and reasonable, in every respect, it will refuse to interfere, and leave the party to other remedies for redress. Waters vs. Howard, 1 Md. Ch. Dec., 112; S. C., 8 Gill, 262; 2
Here, upon the assumption that the contract was sufficiently established, we think it exceedingly questionable whether, upon settled principle, a Court of Equity wotild be warranted in lending its assistance. There would seem to be an absence of those equitable elements that commend a contract for specific execution. To say that such contract as is here alleged is in all respects equal, just and reasonable, in view of all the facts of the case, would be saying what no known precedent justifies, and what it would be difficult in reason to prove.
But if we could come to the conclusion that a contract had been established by the evidence, and waiving this last objection to its specific execution, there would still remain' an insuperable difficulty to its specific performance by a decree of a Court of Equity, and that is the bar of the Statute of Frauds. The acts, alleged to be in part performance of the contract, and relied on to relieve it of the operation of the Statute, are, in our opinion, wholly insufficient for that purpose. The only act in this case that can have any significance whatever as being in part performance of the alleged contract, is that of possession. But the partial and subordinate possession that was held by the plaintiff, under the peculiar circumstances of the case, was, to make the most of it, an equivocal act, susceptible of a variety of interpretations, and affording no evidence or presumption whatever of the particular contract alleged, and to allow such act, even if the contract were otherwise established, to remove the bar of the Statute would operate a virtual repeal of it as applied to cases like the present, and let in all the mischief that was intended to be guarded against by the Statute. The principle upon this subject is well established. The act relied on as part performance must, in itself furnish evidence of .the identity of the contract; and it is not enough that it
In the opinion of the Court, the plaintiff has failed to establish his case, and consequently the decree of the Court below must be reversed, and the bill of complaint dismissed, with costs to the defendants.
Decree reversed, and bill dismissed„
delivered the following separate opinion:
I rest my assent to the reversal of this decree upon the sole ground that the agreement set up in the bill is not established by the requisite degree of proof. Fully concurring in and assenting to every thing said in the opinion of the Court, delivered by my Brother Alvey, as to the necessity of clear and undoubted proof of the contract in a case like the present, I am of opinion that if the contract were thus established there would be no difficulty in deci’eeing its specific execution. In that case, taking possession by the nephew after the abandonment by him of the relation of landlord and tenant previously existing between him and his uncle, could be referred to that agreement and nothing else. It would be possession under it and not under the previous tenancy. Assuming the averments of the bill, that in consequence of a misunderstanding between them, the nephew, in April, 1869, in the midst of a year of his tenancy, abandoned the farm, that all existing relations of landlord and tenant were by mutual consent annulled and rescinded, and another tenant in place of the nephew, engaged by the uncle and put on the place, and that, after this, there was a contract made between them, that if the nephew would come back and manage, work and cultivate the farm during the life of the uncle, paying to him one-half the clear profits thereof, the latter would devise the farm to the nephew, to be proved, I am unable to perceive how subsequent possession' of the place by the nephew is not to be considered as part performance of that contract, so as to take the case out of the operation of the Statute of Frauds. Abandonment of the place, dissolution of existing relations, procuring and putting in possession a new tenant, and the coming hack after this and taking possession again, are such '‘other unequivocal circumstances,” (2 Story’s Eq., sec. 763,) as point and refer the subsequent possession solely and exclusively to the contract, and not to the pre
The distinction between the possession in the present case, upon the assumption that the alleged contract is clearly proved, and that in the cases referred to, appears to me broad and indisputable. The language of the Court in those cases and in all the authorities referred to in them, seems to have been studiously guarded, and framed to meet precisely a case of this character, where the possession was interrupted, the previous tenancy completely ended, and possession again taken after the alleged contract was made. I have seen no case in which any Court has ever held or laid down a contrary doctrine.