27 Md. 489 | Md. | 1868
delivered the opinion of this Court.
This appeal is taken by the plaintiff below from the rejection of her prayers and the granting of those offered by the appellee. As the latter refer to the pleadings and evidence in the cause, it is necessary to state their nature and substance briefly. The narr. consisted of two counts : The first for money had and received by Thos. Devecmon in his lifetime, and payable to Thomas White in his lifetime, and by Coombs as executor since his death. The second, for money had and received by Coombs as executor of Devecmon, since his death, to and for the use of the appellant, as administrator of White. To which the defendant pleaded—
1st. That Thomas Devecmon in his lifetime never was indebted as alleged.
2d. That defendant never was indebted as alleged. On which issues were joined.
In support of the action, among other things, the plaintiff proved by a competent witness, that in the month of November, 1864, the defendant’s testator came to the house of the plaintiff’s intestate during his absence from home, and asked if he could get into Mr. White’s office, and then said that he had .sold a tract of land to Mr. O’Hern for $5,000, and that he wanted to get the papers to draw the deed; that Mrs. Devecmon further said, that her (witness’) father was interested in the matter, for he was entitled to one half of the $5,000. That afterwards witness, by her father’s directions, went to Devecmon’s office to see him about it. He then told her that $1,250 of the money would be paid the next day, and that he would deposit the half of it in the bank for her father. The plaintiff proved by M. P. O’Hern, that he bought of
The appellee, to maintain the issue on his part gave in evidence a certificate of survey of a tract of land called “Mount Atlas,” dated in May, 1864, for 47-J acres, on an escheat warrant, issued to Thomas Devecmon; a deed, dated 21st Nov., 1864, from Thomas Devecmon, to S. O’Hern for the same land; a deed of trust dated 13th Dec., 1864, from S. O’Hern to Wm. Devecmon, to secure to Thos. Devecmon certain sums therein mentioned. The appellant further proved by Wm. Devecmon that his brother Thomas, a short time before his death, gave him, the witness, certain papers from which to write several deeds: among others, the deed to Miss O’Hern; that he did not then give him the name of the tract, but Devecmon told witness that White had a half interest in the land to be conveyed by that deed. The prayers of the respective parties are founded upon this evidence.
The appellant’s first prayer affirms, that if the jury believe that Thomas Devecmon made the declarations testified to by the daughter of Thos. E. White, and that he received the sum of twelve hundred and fifty dollars from O’Hern, on account of the land, they may find for the plaintiff, for one half of the sum so received by Devecmon.
The second, that if in addition to the above facts, they find that the defendant (the appellee) after the death of Devecmon, received on account of said purchase money, the further sum of twelve hundred and fifty dollars, then they may find for the plaintiff one half of said further sum of $1,250.
The third, that if they believe from the evidence, that
The appellee’s prayers, reciting the evidence of title in the tract called “ Mount Atlas ” from the State to Thos. Devecmon, and from him to Miss O’Hern, asked the Court, to instruct the jury, that if they believed the same, “ and that part of the purchase money of said tract under said deed is sought to be recovered in this case,” then the plaintiff cannot recover.
The second, in addition to the facts stated in the first, reciting the testimony of Miss White, and of Wm. Devecmon and the receipt of the several sums by Thos. Devecmon in his lifetime, and the appellee, his executor, since his death, further instructed the jury, that the appellant could not recover'under the pleadings and evidence in the cause. The question raised by the first and second propositions of the appellant, and those of the appellee, is purely, whether the proceeds of land can be recovered in an action for money had and received, upon oral proof of the right of the plaintiff, without any note or memorandum in writing.
It is contended on behalf of the appellee, that it is an evasion of the Statute of Frauds, which prohibits the creation of any estate or interest in lands, except by writing, and actions on any contract or sale of lands, or any •interest in or concerning them, unless the contract is in writing, and all declarations or creations of trust, by parol. 29, Char. H., ch.3, secs. 1, 2, 3, 4, 7. It seems impossible to escape from the force of this objection. The subject matter, or consideration, for which the testator of the appellant, would in law be under an implied obligation to pay to the appellee, is proved to be the proceeds of land ; the right of action (if any) arises, then, on a contract or sale of lands, or some interest ip or concerning them. This contract is not executed, but executory. Its whole effect
Judgment affirmed.
