Young v. Frost

5 Gill 287 | Md. | 1847

Spence, J.,

delivered the opinion of this court.

One of the prayers of the complainant’s bill is, that the court will decree the specific execution of an agreement charged in the bill to have been made on the 27th day of October, 1828, between Isaiah Frost, Meshack Frost, and John Neff.

This prayer the court below rejected; and refused to decree the specific execution of the agreement of the 27th of October, 1828, of which agreement, exhibit E. is charged in the bill to be a copy.

Our inquiry then in this case is, whether this agreement is such, as a court of equity will decree, shall be specifically executed ?

We think the evidence proves conclusively, first, that there was an agreement made and concluded between the parties on the 27th day of October, 1828; secondly, that diligent inquiry and search has been made for the original agreement, and that according to the principles of law, and rules of evidence governing such cases, a copy was admissible; thirdly, that the paper No. 4 is proved satisfactorily to be a copy of the original agreement of the 27th October, 1828.

Let us now inquire whether the paper No. 4 contains so far, the essentials of a contract or agreement, and the intention of the parties is so manifest on the face of the instrument, as to enable a court of equity to carry out specifically by decree the stipulations of the parties, without invading any of the rules of law which govern courts of equity in the exercise (as it is denominated in the books) of its extraordinary jurisdiction.

The copy of the agreement proved is in these words:

“Articles of agreement made and agreed on this 27th day of October, 1828, between Isaiah Frost, Meshack Frost, and John Neff, heirs and representatives of Josiah Frost, deceased, have and do hereby fairly agree, to and with each other, that they and their heirs and assigns shall hereafter have and enjoy free and equal intercourse; that is to say, to each one undivided third part of all the coal, in and on all our lands; that is to say, Josiah Frost's part now sold to John Neff.

“And the said Isaiah Frost doth agree to let John Neff and Meshack Frost have free intercourse to the coal mines on his property left him by his father: and he further agrees to let Meshack Frost and John Neff have the privileges of coals on his land, and the privileges of building a house at the mouth of the pit—such a house as suits themselves for the conveniency of coal diggers.

“And also, the said Meshack Frost doth agree to give to Isaiah Frost and John Neff, the same privileges as above.

“And also, the said John Neff doth agree to give unto Isaiah Frost and Meshack Frost the same privileges as above, in coals, building houses, and making repairs, and to share alike and alike.

“And the said Isaiah Frost and Meshack Frost doth agree to give nnto Josiah Frost and his heirs, the privilege of the interest of their two shares of coal, all that he will haul with his own teams, or his heirs, by digging the coals for himself or themselves, for which the said Josiah Frost doth agree to keep the banks in complete order, so as not to injure them by diging to destroy the banks.”

This instrument is concluded in the usual form, signed and sealed by Isaiah Frost, Meshack Frost and John Neff, and attested by Ben. G. Vaughn.

It should be borne in mind in construing this instrument, that Josiah Frost, Sen'r, devised by his will separate and distinct portions of his land to each of his three sons; and to his two sons, Meshack and Isaiah, an equal interest in the coal mine and saw mill, which were on the part devised to Josiah, as he, Josiah himself, took under the will of the testator, and that Josiah had contracted orally to sell to John Neff, all of the land which was devised to him by his father.

It was insisted in the argument on the part of the appelleé, that the first article or stipulation in this agreement served as an exposition of the whole instrument, and by force and operation of the words “ that is to say, Josiah Frost's part now sold to John Neff," restricted and confined the whole contract to the land sold by Josiah Frost to John Neff. Let us test the correctness of this construction by applying it to the agreement on the part of Isaiah Frost, and it will read thus: “ and the said Isaiah Frost doth agree to let John Neff and Meshack Frost■ have free intercourse to the coal mines on his property left him by his father, (that is to say, Josiah Frost's part now sold to John Neff;) and he further agrees to let Meshack Frost and John Neff have privileges of coal on his land, (that is to say, Josiah Frost's part now sold to John Neff;) and the privilege of building a house at the mouth of the pit—such a house as suits themselves for the convenience of the coal diggers.” The agreement on the part of Meshack Frost and John Neff are the “ same as above.”

This construction of this agreement renders it inoperative and unmeaning. If the stipulations in the agreement are to be confined to “ Josiah Frost’s part now sold to John JYeff,” what benefit or privilege can JWeshack Frost and Isaiah Frost give or confer upon John JYeff in his own land and coal ?

It is well settled that courts of law will not put such a construction upon instruments of this kind as renders them null and void, if they can without violating any rule of law so construe them, as to give to the contracting parties a meaning and intention operative and binding in law.

The only words or expression in this agreement which can possibly cause any doubt as to the intention of the parties, are the words, “that is to say, Josiah Frost’s part now sold to John JYeff.” The agreement commences thus: “Articles of agreement made and agreed on this 27th day of October, 1828, between Isaiah Frost, JWeshack Frost and John JYeff, heirs and representatives of Josiah Frost, deceased;” and as the intention of the parties was, that they and their heirs and assigns were thereafter to have and enjoy free and equal intercourse, “ that is to say, to each one undivided third part of all the coal in and on all our land,” it was necessary to shew what land, so far as John JYeff’s obligation related, was intended by the words “all our land,” for John JYeff was neither the heir nor representative of Josiah Frost, deceased, and therefore the expression “all our land,” would have included all the lands which John JYeff owned, and the expression “that is to say, Josiah Frost’s part now sold to John JYeff,” explains what land was intended on John JYeff’s part in the expression “all our land.”

Much reliance in the argument was placed on the want of consideration, or the inadequacy of consideration in this agreement. A court of equity does not affect to weigh the actual value, nor to insist upon the equivalent in contracts, where each party has equal competency. When undue advantage is taken, it will not enforce that. Improvidence or inadequacy do not determine a court of equity against decreeing specific performance. Sullivan vs. Jacob, 12 Cond. Eng. Cas. in Chancery, 235.

We forbear to make any comments in reference to the argument upon the effect of the parol evidence in this case, for the reason that it would be admissible to prove fraud, or omission by mistake only; and not the intention of the contracting parties.

We do not consider the complainant in this case obnoxious to the charge or consequences of champerty, either upon principle or authority.

The decree is reversed with costs to the appellant, and the case remanded for further proceedings.

DECREE REVERSED AND CAUSE REMANDED.

The decree of this court adjudged that the agreement of the 27th October, 1828, which is alleged and set forth in the appellant’s bill of complaint is satisfactorily established by the evidence in the cause, and that paper marked No. 4 of said evidence and referred to in the testimony of the witness, George McCulloch, is by the testimony of said witness proved and established as a copy of said agreement; and also, that the said complainant, John Young, as the assignee of John Neff, one of the parties to the said agreement, is entitled in equity to demand and have a specific execution of the said agreement, as against the other parties to the same, the said defendants, Meshack and Isaiah Frost; and also, that the said agreement is not by the words “ that is to say, Josiah Frost's part now sold to John Neff," limited and restricted in its operation to Josiah Frost's part of his father’s estate, devised to him by his said father, hut that said agreement according to its true construction, as to all the rights, interests, and privileges thereby and therein respectively granted to each other by the parties to the said agreement, does extend to and embrace all the lands which were respectively devised to the said Meshack Frost, Isaiah Frost and Josiah Frost, by their said deceased father, Josiah Frost.

It is therefore by this court, and the authority thereof, further adjudged, that this cause he, and the same is hereby remanded to the said Jlllcghany county court as a court of equity, in order that the said complainant may by the decree of said court have partition of his rights and interests under said agreement, as prayed for by bis bill, in conformity to the principles of this decree, and that such further proceedings may be bad in the cause as are required by the principles of this decree, and the rules of equity.