313 F.2d 560 (D.C. Cir. 1962), 16266, Maynard v. Sutherland

Docket Nº:16266.
Citation:313 F.2d 560
Party Name:Jeremiah MAYNARD, Appellant, v. Laura M. SUTHERLAND, Appellee.
Case Date:November 01, 1962
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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Page 560

313 F.2d 560 (D.C. Cir. 1962)

Jeremiah MAYNARD, Appellant,

v.

Laura M. SUTHERLAND, Appellee.

No. 16266.

United States Court of Appeals, District of Columbia Circuit.

November 1, 1962

         Argued Sept. 17, 1962.

Page 561

          Curtis P. Mitchell, Washington, D.C., with whom James A. Washington, Washington, D.C., was on the brief, for appellant.

         George H. Windsor, Washington, D.C., with whom George E. C. Hayes, Washington, D.C., was on the brief, for appellee.

         Before WILBUR K. MILLER, DANAHER and BASTIAN, Circuit Judges.

         DANAHER, Circuit Judge.

         District Judge Tamm, sitting without a jury, found that the appellee, Laura M. Sutherland, is the surviving joint tenant in fee simple under a deed recorded at Liber 7198, folio 11, of the land records of the District of Columbia; the appellant, her brother, was occupying the premises without right; Laura was entitled to possession and to recover $80 per month as reasonable rent of the premises from November 13, 1957 to the date Laura might gain possession. Judgment was entered accordingly.

         The District Judge might have concluded that the action eventuated from a brother-sister feud of more than twenty years' standing. The appellee, Laura M(aynard) Sutherland, and her mother, Rebecca Maynard, had been expressly described 'as joint tenants' in a deed 1 from one Jane Eliza Scott, dated February 11, 1938. The premises conveyed are located at 1443 Que Street, N.W. in the District of Columbia and include a three story house containing some 13 rooms with two baths. Mother and daughter shared the house for many months, the mother renting rooms for which she received, as the appellant testified, varying sums, from $5 to $8 per room.

         Some time in 1939, Laura and her brother had an argument. Blows were struck. Jeremiah testified that he 'was summoned to court for assault for reasons I didn't know.' While further specific details are lacking, it seems clear that the house ownership was involved, for Laura told her brother there was nothing he could do. He testified, 'The house was in her name and her mother's name. So that's when * * * they started a suit about it to find out why it was and what could be did about it.' 2

         When that lawsuit was instituted in 1939, Laura left the house. The mother, as previously, continued to collect all of the income. Apparently she operated the house until September 13, 1957 when she died at the age of 83. Over the intervening years Jeremiah lived in the house, and at least from the date of the mother's death until some time after judgment was entered in the District Court, the house was also occupied by another brother and by Jeremiah's daughter and her four children. None of these members of the family paid rent. Jeremiah

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testified that after the mother's death he had not rented out rooms; 'We stopped taking out a room license quite a while ago.'

         Shortly after Rebecca's death, the appellee served on her brother a notice to quit. Then, in a Municipal Court complaint describing her brother as a tenant at sufferance, she asked that court for a judgment for possession of the premises and for the rent in arrears.

         Appellant filed a plea of title and an undertaking as the statute 3 provides, whereupon as of January 23, 1958, the action was transferred to the District Court for trial. Thereafter, the record shows various motions and pleas were interposed which at one time or other engaged the attention of at least seven different District Judges before the case came to trial in September 1960. 4

          The appellant relied in part upon an unprobated will purported to have been executed by his mother on October 14, 1953. The instrument recited a bequest to Laura of $100, with the residue in equal shares to the appellant and two brothers, one of whom has since died. Of course, if the District Court correctly concluded that Laura upon the death of her mother, had become the sole surviving joint tenant in fee simple under the original deed from Scott, the appellant could take no interest in these premises under the will.

         Appellant next contended that Laura had 'severed' the joint tenancy because on May 19, 1938 she had executed a deed of trust for the benefit of her mother. It is accordingly argued that there came into being between Laura and her mother only a tenancy in common.

         Consideration of this aspect of the appellant's claim took the District Judge back to the Civil Action 3454, Maynard v. Sutherland, which went to judgment on July 2, 1941. Judge Jennings Bailey's order recited that the case had come on 'to be heard upon the pleadings and proof taken in open court, and there having been a failure on the part of the plaintiff to support by competent testimony the allegations of the complaint, ' the 'said cause' was dismissed.

         Among the 'pleadings' considered by Judge Bailey was the complaint reflecting the previously mentioned apparent desire of Jeremiah and other members of the family to see what could be done 5 about Laura's status. The mother alleged that Laura had been designated as a joint tenant in the Scott deed 'without consideration, ' Rebecca had not known of that designation 'until a long time thereafter' and a mistake had been made. She asked that the deed be reformed and that the property be conveyed to her free from 'claims or interest of any kind or character whatever of the said Laura M. Sutherland and Jane Eliza Scott.' The latter answered that Rebecca herself had instructed the District Title Company to draw the deed to Rebecca Maynard and Laura M. Sutherland as joint tenants, the District Title Company in its case No. 252057 had record evidence of the fact, and further that both Rebecca Maynard and Laura M. Sutherland had signed settlement book No. 292, p. 308, approving the title company statement which set forth the details of the transaction and showed the joint interests of mother and daughter.

         Laura's answer in a 'Third Defense' set up that the designation of her mother

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and herself as join tenants was made at the direction of the said Rebecca Maynard, 'and upon the passing to her by previous transaction, made the basis thereof, and in consideration therefor, of full, adequate and legal consideration for the acquisition of the property in question as a joint tenancy.' She further averred that the subject matter had been discussed, her mother was represented by counsel, the details had been explained, and the joint tenancy had been created at the mother's express direction 'and because of the consideration which had been given by this defendant and which the plaintiff recognized and acknowledged.'

         Further in her answer Laura pleaded

         'subsequent to the placing of the title in the plaintiff (Rebecca Maynard) and this defendant as joint tenants, when certain repairs and improvements became necessary to increase the income producing value of the property in question, 1443 Que Street, N.W., the plaintiff, advancing the money therefor, did require this defendant to give a note, secured on the property involved in this litigation, for the repayment of said amount, providing out of the income from the said property for the said repayment. This defendant sets forth that just as is now attempted by the Complaint filed herein to repudiate and avoid a legitimate business transaction between the plaintiff and this defendant, the plaintiff did alter the plan and program agreed upon between these parties, violated the verbal contract had between them, and has taken over and assumed all of the control of the said property and the income therefrom, which she has been and is now receiving. This defendant sets forth further that the right of survivorship incident to the joint tenancy is the only benefit which she is receiving therefrom, in spite of and in violation of the consideration given by her therefor, and the attempt to deprive her of same is in the opinion of this defendant not really the desire of the plaintiff, who fully realizes the right of this defendant to same, but is rather an inspired move of others who desire to themselves obtain the said property.' (Italics added.) 6

         The record discloses no pleading responsive to Laura's 'Third Defense.' There was then no suggestion that Laura by the deed of trust executed on May 19, 1938 in favor of her mother had 'severed' the joint tenancy created by the Scott deed, although Rebecca's suit was not reached for trial until nearly three years later. The action culminated, as previously noted, in a judgment dismissing the complaint.

          District Judge Tamm in his 'Memorandum Opinion' in the instant action seems to have evaluated that result as dispositive here. After reviewing the record in Civil Action 3454, he wrote 'that the matter of title 7 is now

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res judicata as to Rebecca Maynard' and those in privity with her. Judge Tamm expressed the view that Judge Bailey had ruled after consideration of the facts in the case 'that as between Rebecca Maynard and Laura M. Sutherland a joint tenancy did in fact exist.' He added 'From the pleadings cited in some detail above, it is obvious that the existence of the deed of trust and the circumstances surrounding its execution were before Judge Bailey at the time of his decision.' 8

         We turn to the instrument signed by Laura M. Sutherland on May 19, 1938. The deed of trust was never recorded. While it purports to recite the terms of a note running from Laura to her mother in the sum of $2, 500, no note was ever found. The 'note' called for payments at the rate of $25 per month in monthly installments to begin on June 19, 1938, with 6 per cent interest on the principal sum, but with each installment...

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