Semmes v. Worthington

Alvey, J.,

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, whereby the late Richard J. Worthington, deceased, agreed, in consideration of certain conduct and services to be performed by the plaintiff, to devise to the latter certain real estate, known as the “Bloomfield Farm and Race Course.”

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in April, 1869, when, in consequence of the disagreement between himself and his uncle, the agreement between them was rescinded, and the plaintiff vacated the farm; that the uncle thereupon employed a man by the name of Slade, to work and cultivate the farm in the place of the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 induce him to vacate the farm,'and would moreover again take possession of and cultivate, the farm during the lifetime. of the uncle, he, the uncle, would devise the farm to, the plaintiff. To this proposition, as it is alleged, the plaintiff, being unwilling again to subject himself to the. whims a.nd caprices of the uncle, at first positively refused to accede, but finally, after further negotiation, consented, being greatly influenced by the fact that from 18.66 to 1869, he had, in reliance upon the assurance of the uncle, that the farm should be devised to. him, expended upon the same all of his share of the crops and profits thereof; and that it was thereupon clearly, definitely and distinctly agreed between the plaintiff and his uncle, that the former should pay out of his own proper means such sum as Slade might exact as. the price of relinquishing possession of the farm, and should himself take possession thereof, and manage, work and cultivate the same, paying to his uncle the clear one-half of the profits, thereof, and with the other half, or so much thereof as. might he necessary, defray the expenses of carrying on the farro during the Hfe-time of his uncle.; and, in consideration of his so doing, the uncle would devise the farm to him. It is further alleged that the plaintiff did induce Slade to: vacate the farm, upon the payment to him of one hundred dollars, and did enter into, possession of the farm, and in all respects performed his part of the agreement until the death of the uncle, which occurred o.n the 13th of March, 1810, less than one year from the date of the agreement.

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.

With the bill are exhibited the cancelled will of the 29th of January, 1868, and also the last will of the 21st of January, 1869, which has been admitted to probate.

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.

That a contract to devise real estate, if shown to he in all respects fair, just and reasonable, founded on sufficient consideration, and there he no doubt on the proof as to any of its terms, may be enforced by specific performance, by way of conveyance, as against the heirs or devisees of the party obligating himself to devise, is a proposition fully sustained by authority, and we do not understand that such proposition is at all controverted in this case. But in all cases for specific performance the contract must be accurately stated in the bill, and the proof must in every essential particular correspond with the terms of the contract thus set up. The proof must be clear and explicit, leaving no room for reasonable doubt. And in cases for the specific enforcement of- a contract to devise, like the present, where the property has been devised to other parties, the utmost certainty is required, as, by the enforcement of the contract, the Court undertakes to set aside a solemn testamentary act of the deceased party, in the absence of all possible explanation of his conduct, ,and when he is no longer present to vindicate himself against the imputation of bad faith. To such cases may well and most aptly he applied the rule so clearly and forcibly stated by the late Mr. Justice G-rier, of the Supreme Court, in delivering the opinion of that tribunal, in a case of an application for specific performance. In speaking of the character and certainty of proof required on such applications, he said: “Such proof must be clear, definite and conclusive, and must show a contract leaving no jus deliberandi or locus penitentice. It cannot be made out by mere hearsay, or evidence of the declarations of a party to mere strangers to the transaction, in chance conversations, which the witness had no reason to recollect from interest in the subject-matter, which may have been imperfectly heard or inaccurately remembered, perverted or altogether fabricated; testimony, therefore, impossible to be contradicted.” Purcell vs. Miner, 4 Wall., 517. And in this case, without intending in the slightest degree to question the integrity and good faith of any witness examined in the cause, it is proper to observe and bear in mind, that all the evidence offered to establish the contract, consists of the mere verbal declarations and statements of the deceased, and that the witnesses who depose to them had no other means of identifying the expressions used, or the intention of the declarant, than their mere power of recollection after the lapse of a considerable time. The wisdom of the Statute of Frauds, in requiring contracts of great importance to be evidenced by writing, is within the constant experience and observation of every one engaged in the administration of justice; and it has been a matter of regret by the ablest Judges that the provisions of that Statute should ever have been so far relaxed, as to allow the titles of parties to their estates to depend in any considerable degree upon the chances, the uncertainty and imperfections of human memory, to say nothing of their great exposure to fraud and perjury. As, however, the Statute has in some cases been relaxed, and its literal and strict provisions departed from in order to prevent fraud, the rule established as applicable to those exceptional cases must be observed ; the Court, however, requiring in all such cases full and complete proof, as to all the conditions upon which the bar of the Statute can be removed.

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' had occupied the estate from 1866, to April, 1869, as tenant on the usual terms of leasing. The estate was large and valuable, supposed to be worth over one hundred thousand dollars ; and the plaintiff being poor and without a cent to apply to the stocking of the farm, his uncle furnished all the stock and utensils, and exacted only the rent paid by his former tenant Schwartz. Upon some disagreement with his uncle, the plaintiff left the farm in April, 1869, in the midst of a current year of his tenancy, and was succeeded in its occupation by Slade, but for a few days only. By the fault of which of the, parties the disagreement occurred, does not appear; but by the intervention and upon the suggestion of mutual friends a reconciliation was effected, and the plaintiff was again placed in possession of the farm as before. It is manifest from the evidence that the idea of this reconciliation, and the restoration of the plaintiff to the possession of the farm, did not originate with the uncle, but would appear to ’have been conceived and proposed by Schwartz, Nicholas and Bosley. They stopped the appraisement which they were called on to make, and proposed that one of them should go to Worthington, the uncle, and ascertain whether he was willing that the plaintiff should return to the farm, and, upon his signifying assent, arrangements were initiated to ■■get Slade to vacate and the plaintiff to resume the possession of the farm as formerly. This fact is proved by Schwartz, one of the plaintiff’s witnesses. The payment of the hundred dollars to Slade to induce him to surrender possession, appears to have been made only in part by the plaintiff; but the surrender was manifestly for the benefit of the plaintiff, as thereby he was not. only restored to the possession of the farm, but to the benefit of his winter’s work done on the farm, and of the crop then growing. He might well, therefore, agree to pay tb.e hundred dollars for the surrender of the farm.

The two witnesses upon whose testimony the main reliance is placed to establish the making of the contract as charged in the bill, are Nicholas and Schwartz. The first named of these witnesses, says: “Mr. Worthington sent down for me specially to come up there; I had been one of the appraisers to appraise the property. When I went up there, Mr. Worthington told me that, as I had started this business, I must get Charles Semmes back, and Frank Slade away; that if Charles Semmes would come back and attend to his business as he had done before he went away, that he, Worthington, would leave him Bloomfield at his death, and if he didn’t, he should never see a damned cent of his property.” This proposition according to the testimony of the witness, was submitted to the plaintiff, who, after considerable difficulty, was induced to accede to it. Schwartz, the other witness, testified that Worthington told him “to tell Charles Semmes that if he wouldn’t come back and attend to his work like he did before, he shouldn’t have a damned cent, and if he would come back he would give him the place.” This proposition was also taken to the plaintiff by the witness, and it was not until after considerable hesitation that the plaintiff finally acceded to it, and returned to the farm. Neither of these witnesses as will be observed, profess to give the exact language of the deceased, nor everything that was said by him; nor do they undertake to state the language of the plaintiff when these propositions were made to him, to show how he understood and in what sense he accepted them. These are the only two witnesses who profess to have any knowledge of the making of the contract; the other witnesses for the plaintiff testifying to declarations of the deceased, all of which are of a vague and indefinite character as evidence of a contract, such as that set up in the plaintiff’s bill.

Now, without laying any particular stress on the discrepancy between the contract as alleged in the bill, and the evidence offered in proof of it, which is much more than merely verbal, is it rational to conclude, in view of all the circumstances of the case, that the deceased intended to make a binding and conclusive contract for the final disposition of the estate in question, as contended by the plaintiff’s counsel? To justify such a conclusion the most positive and unequivocal proof should be furnished; as the effect of such contract, if made, was not only to revoke the solemn last will and testament of the deceased, as to the estate in question, consisting at least of two-thirds of his entire estate, but forever to deprive him of all power of disposition over it, and to reduce him to the condition of a mere life annuitant, depending for the amount to be received upon the skill and attention with which the estate might be managed by the plaintiff. By the contract as attempted to he established, the jdaintiff became entitled to the devise upon his taking possession and cultivating the farm during the life'of his uncle, upon the same terms and in the same manner as before, when merely a tenant, without any reference whatever to the possible change of feeling, or to any future relation that might exist between them. For this extraordinary contract, the only apparent consideration to the deceased, was the preference of one tenant to another to cultivate and manage his estate, on being paid the usual rent. And it is really difficult to imagine that a sensible man, as the deceased is said to have been, would, by solemn contract on such consideration, so entirely denude himself of all power and control over his estate, and place himself in a condition of such dependence in reference to it.

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 binding and conclusive contract that would secure to him, absolutely and unconditionally the farm, upon his remaining on it and cultivating it as tenant during the life-time of his uncle? With such understanding of it, it was certainly strange that he should have had reluctance in regard to accepting the offer, and entering into the contract ;■ he, a young man and poor, and his uncle far advanced in years. If such was his understanding of the matter, there existed every incentive for having the contract reduced to writing. In his bill he characterizes his uncle as a man of whims and caprices, and by the proof he has shown him to have been changeable and perverse in his disposition; and therefore his declared intents and purposes were not to be relied on. He knew, moreover, according to the allegation of his bill; that his uncle had revoked the will of January, 1868, in which he was provided for, and had made the will of January, 1869, under circumstances that gave him no reason to hope for a provision ; and with this knowledge he has not alleged or attempted to prove, that he ever on any occasion inquired of his uncle whether he had made or intended to make his will conform to the alleged contract, or requested him to do so. This would have been but a proper precaution, and quite natural to one who had reluctantly entered upon the performance of a binding contract of the grave importance of the one in question. He knew, or should have known, that the contract without writing was no sufficient security to him. He could have had no delicacy upon the subject; it was no longer ’a mere question of option and bounty on the part of the uncle, according to the pretension now set up, but was a question of absolute right in the plaintiff' which he should have been forward to assert. But, instead of asserting his right under the contract, will or no will, his own declarations both before and after the death of his uncle would seem to be quite inconsistent with the claim now made. According to the testimony of several of the witnesses, the plaintiff meditated leaving the farm at the end of the year 1869. He told Mrs. Milnor, his sister, in the summer of 1869, that he expected to leave Bloomfield as soon as he got in his crops. In the summer before the death of his uncle, he told Clara Madden, ‘cthat he didn’t expect his uncle Dick would give him anything and after the death, and before the will of the deceased was produced, he said to Mrs. Mil-nor and also to Clara Madden, that he did not expect to get anything hy the will. Such would hardly have been his language, if he had been relying upon a positive contract, determining his rights, and leaving his uncle no option as to the manner of disposing of his farm. At least, associated with such language would likely have been some reference to, or assertion of, his claim under the contract. But no such reference or assertion appears to have been made by him.

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 parties. Some of the facts proved do certainly give the semblance of a contract; but the circumstances of the case are exceedingly cogent to justify the belief that, according to the understanding of the parties themselves, what occurred between them in reference to the devise of the farm, amounted to nothing more than mere inducement and expectation, uncoupled with anything like positive and binding obligation. The conduct of both parties would seem to consist with this idea of their understanding. That there has been disappointment on the part of the plaintiff is most probable, but whether there has been bad faith, amounting to breach of contract on the part of the deceased, the record before us does not in our opinion, justify us in declaring.

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 Sto. Eq. Jur., secs. 767, 770; Seymour vs. Delancey, 6 John. Ch. Rep., 222; Willard vs. Taylor, 8 Wall., 557.

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 is evidence of some agreement, but it must relate to and be unequivocal evidence of the particular agreement charged in the bill. Ches. & Ohio Canal Co. vs. Young, 3 Md., 480. And the Court is never anxious to grasp at slight circumstances to rescue a case from the operation of the Statute, nor does it indulge in any latitude of construction, where there is any equivocation or uncertainty in the case presented. It adopts the rule that the contract should be clear and definite, and that the acts done should be equally clear and definite and solely with a view to the performance of the particular agreement. Shepherd vs. Bevin, 9 Gill, 32. The acts done must be of a substantial nature, and such, that the party would suffer an injury amounting to a fraud by the refusal to execute the agreement. Frame vs. Dawson, 14 Ves., 387. This is the ground upon which Courts of Equity interpose their aid, in cases of clear part performance of verbal agreements. Hamilton vs. Jones, 3 Gill & John., 127 ; Hall vs. Hall, 1 Gill, 387; Caldwell vs. Carrington’s Heirs, 9 Pet., 86. But the acts done in this case, in the alleged part performance of the contract set up in the bill, if the contract were proved, were not of a character to make it fraudulent on the part of the defendants to rely on the Statute of Frauds as a bar to the plaintiff's case. Though it is alleged in the bill, it is not proved as a fact that the plaintiff made expenditures or improvements on the land on the faith of the alleged contract; and the mere possession, such as it was, under the particular circumstances, could afford no sufficient ground for relieving the case from the bar of the Statute of Frauds.

(Decided 2nd July, 1873.)

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„

Miller, J.,

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 previous tenancy. It is not like the case put by Sir William Grant, in Frame vs. Dawson, 14 Ves., 388: “Suppose my tenant should set up an agreement for a purchase, and get a witness to swear to it, and then offer as evidence of part performance, his possession and cultivation of the land, could that be deemed an act of part performance, which would have existed precisely in the same shape, whether there was any agreement for the purchase, or not?” In that case there was no interruption of possession, and the agreement set up by the tenant who remained all the while in possession, was for an extension of the lease for ten years, in consideration of the repair of a party-wall. It is clear that there the act of possession was equivocal and could be referred to the existing tenancy as well as to the alleged agreement. But the rule on this subject has been stated by this Court in the two cases of Spear vs. Orendorf, 26 Md., 37, and Rosenthal vs. Freeburger, Ibid., 75. In both, the possession was continuous, and the alleged agreements were for renewed leases. In the former, the Court said, “ It is abundantly settled, that if one who is already in possession of land as tenant, verbally contracts with the owner for a new term, his merely continuing in possession after the making of the alleged contract, is not an act of part performance within the meaning of the rule, so as to justify a decree for a lease according to the contract. In such a case, the continued holding is naturally and properly referrible to the old tenancy and does not necessarily imply any new agreement between the parties.” There must be something else besides mere continuance of possession, and a majority of the Court there held that the averment in the bill, that the tenant paid the increased rent of $1500 for the last year as part and parcel of the alleged agreement, and in performance thereof, was equivalent to an averment that the landlord accepted the additional rent upon the foot of the agreement, and, therefore, authorized the granting of the injunction prayed for, and specific execution of the agreement, if established by proof. In the latter case there was mere continuance of possession by a tenant who claimed a lease for five years, under an alleged agreement with the purchaser of the reversion that he should become his permanent tenant, and there the Court held that possession insufficient as part performance, and say, “The appellee as tenant continued in possession after the purchase by the appellant. This is a mere continuance of the character which he all along filled, and any act which may be thus referred to a title distinct from the agreement, cannot be considered as taking the case out of the Statute.” So in Billingsleavs. Ward, 33 Md , 48, there was a tenant in possession setting up a parol contract for the purchase of the land, and the Court, after stating that he was already in possession of the land previous to the alleged agreement, say, “Now it is evident that the possession of the appellee was not under or in execution of the alleged purchase, but began before such contract is alleged to have been made, under an entirely distinct contract as tenant, and continued without any change or alteration in the mode of holding, so far as is disclosed by the evidence down to the time of Richard Green’s death.”

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.

But being satisfied upon a careful examination of all the testimony in the record applicable to the subject, that the alleged contract is not established by that clear and satisfactory proof, which is always required in such cases, I agree to the reversal of the decree and dismissal of the bill.

Case Details

Case Name: Semmes v. Worthington

Court Name: Court of Appeals of Maryland

Date Published: Jul 2, 1873

Citation: 38 Md. 298

Court Abbreviation: Md.