Barnes v. Sind, 9608.

• Decision Date: 05 February 1965
• Docket Number: No. 9608.,9608.
• Citation: 341 F.2d 676
• Parties: Roland E. BARNES, Appellant and Cross-Appellee, v. Abraham S. SIND and Israel Cohen, partners, trading as A. Sind & Associates and Abraham S. Sind and Israel Cohen, individually, Appellees and Cross-Appellants.
• Court: U.S. Court of Appeals — Fourth Circuit

341 F.2d 676 (1965)

Roland E. BARNES, Appellant and Cross-Appellee, v. Abraham S. SIND and Israel Cohen, partners, trading as A. Sind & Associates and Abraham S. Sind and Israel Cohen, individually, Appellees and Cross-Appellants.

No. 9608.

United States Court of Appeals Fourth Circuit.

Argued November 18, 1964.

Decided February 5, 1965.

Joseph L. Rauh, Jr., Washington, D. C. (John Silard, Washington, D. C., on brief), for appellant and cross-appellee.

Edward Pierson, Baltimore, Md. (Morris D. Schwartz, Washington, D. C., on brief), for appellees and cross-appellants.

Before HAYNSWORTH, BOREMAN and BRYAN, Circuit Judges.

HAYNSWORTH, Circuit Judge:

Cross appeals bring before us a controversy arising out of a real estate transaction. We remand for further proceedings because the appeals have made it apparent that the specific performance ordered by the District Court is inappropriate.

The plaintiff, a Negro, made an abortive attempt to purchase a house and lot in a residential subdivision under development in Maryland. The promoters, moved by threats of litigation and publicity, finally entered into a settlement agreement which obligated them to sell to the plaintiff an identical house constructed on an equivalent lot in the subdivision¹ and to pay liquidated damages for delay. Thereafter the plaintiff rejected a specific proffer of performance on the ground that the tendered lot was not the equivalent of the one he had first chosen. As the controversy continued it developed that in the view of the plaintiff and his attorney there was no equivalent lot. Interest, however, focused on a lot and house immediately across the street from the residence the plaintiff first sought to buy. The plaintiff offered to accept that with a cash allowance because of claimed lack of equivalence in the lots. He was also claiming liquidated and other damages.

Inability to agree upon performance of their bargain led to this litigation.

In his complaint, the plaintiff sought a mandatory injunction requiring the defendants to convey to him the house and lot he first sought to purchase or an identical house on an equivalent lot, liquidated damages in accordance with the subsequent contract, other compensatory damages, and an injunction prohibiting the sale pendente lite of the house and lot known as 11823 Charen Lane, this being the place immediately across the street from the one plaintiff first sought to acquire. Subsequently, however, the plaintiff, through his attorney, offered to purchase the premises known as 11810 Smoke Tree Road, reserving, however, all of his claimed rights to damages. Upon a finding by the District Court that, of the remaining lots unsold, No. 11810 Smoke Tree Road, with an identical house on it, was the most clearly equivalent of the house and lot the plaintiff first selected, it enjoined the sale, pending the litigation, of the Smoke Tree Road house.

During the trial, the plaintiff, through his counsel, finally agreed to recognize No. 11810 Smoke Tree Road as equivalent to the one he had sought to buy. In doing so, he recognized the rule that the Court could not require a conveyance to him of the Smoke Tree Road house while the plaintiff contemporaneously was pressing a claim for compensation for want of equivalence.

A grant of specific performance was further complicated by the fact that the legal title to the Smoke Tree Road lot and the other unsold lots was in the name of one of the individual defendants. His wife was not a party to the action. The Court and counsel considered the possible inadequacy of specific relief, and reference was made to the difficulties the plaintiff would encounter in financing his purchase and otherwise should the wife decline to relinquish her dower interest. Nonetheless, the plaintiff insisted he wished the requested specific relief and would accept it notwithstanding its possible infirmities without diminution of the purchase price either because of the earlier claim that the lot was not the equivalent of the first one or on account of the outstanding inchoate dower interest.

Under those circumstances, the District Court granted the specific relief, expressing some wonder that the plaintiff should prefer it to damages. It, therefore, entered an order requiring the defendants to convey to the plaintiff all of their right, title and interest in the Smoke Tree Road lot with its improvements.

The plaintiff has now appealed insisting that he is entitled to a warranty deed. He wants it for, as he says in his reply brief, "it would merely make the sellers liable for damages on their warranty if an outstanding dower or other impairment of title should later emerge."

The contract does, indeed, call for "a good and sufficient special warranty deed." While it is to be doubted whether under Maryland law a special warranty would give the plaintiff protection against an outstanding dower claim or put him in a position to obtain favorable financing of his purchase, it is perfectly plain from...