Brawner v. Staup

• Decision Date: 21 April 1864
• Citation: 21 Md. 328
• Parties: GEORGE W. BRAWNER, FREDERICK CROW AND OTHERS, v. PETER STAUP, DANIEL M. STAUP AND OTHERS.
• Court: Maryland Court of Appeals

21 Md. 328

GEORGE W. BRAWNER, FREDERICK CROW AND OTHERS, v. PETER STAUP, DANIEL M. STAUP AND OTHERS.

Court of Appeals of Maryland.

April 21, 1864

APPEAL from the Circuit Court for Allegany County, sitting in Equity:

George Staup, the son of Peter Staup, in the year 1829, purchased from James Beatty a tract of land in Allegany County called " The Resurvey on Elk Lick," and received a bond of conveyance therefor in his own name; and afterwards, in the month of September 1836, received a deed in his own name from said Beatty, for the same land. Peter Staup died in 1835, and on the 4th of April 1856, certain of his heirs and the assignees of others, filed the bill in this cause claiming that the land was bought and paid for by the said Peter Staup, through his son George acting as agent and that the said George had fraudulently made the purchase in his own name, and that a resulting trust ought to be established in their favor.

The nature and scope of the bill, and the defences taken thereto by the defendants, are stated in the opinion of this Court.

The testimony taken was very voluminous and conflicting in its character, and in view of the conclusions arrived at by the Court, need only be stated in its general character. That taken by the complainants, went to show that Peter Staup, who was a German, and could not read English, had bought the land for himself and paid for it by instalments, and had permitted George to reside upon it as his tenant. That George himself was destitute of means, and could not have procured the money to pay for the land from his own resources: and that he had made admissions and statements tending to confirm this view of the case.

The defendants introduced evidence tending to show that the purchase on the part of George Staup was a bona fide purchase for himself, and paid for out of his own means.

It was proved that Peter Staup found out that the papers for the land were made out in his son's name a short time before his death, which occurred in February 1836.

The Court below, (PERRY, J.,) passed a decree dismissing the bill, and the present appeal is taken from that decree. The grounds on which the action of the Court below were based are stated in the following OPINION accompanying the decree of dismissal.

" I do not deem it necessary to advert to all the authorities cited in the argument of this cause, nor to comment particularly upon those which I esteem as controlling the result, & c. To sustain the claim of the complainants clear and conclusive testimony is required, and when there is a doubt, uncertainty, or much conflict in the evidence, such demands, as a general rule, are not allowed. 2 Story's Eq., sec. 602. Baxter & Wife, et al., vs. Sewell, 3 Md. Rep., 335. 2 Md. Ch. Dec., 457. 4 Kent's Com., 304. Hollida vs. Shoop, 4 Md. Rep., 465.

In my opinion no one can read the testimony filed in this cause without seeing in it great conflict; and even if the rule were not so strict (requiring evidence of a certain and conclusive kind) it may be doubted whether the weight of the testimony is not with the complainants?

This being my view of the law and facts, I will pass a decree dismissing the bill of complaint."

The cause was argued before BOWIE, C. J., and BARTOL and GOLDSBOROUGH, J. J. H. Gordon, for appellants:

The undertaking of George to purchase for his father, and the payment of $300 of the purchase money by the old man, is fully proved. There is a resulting trust for his benefit to that extent, at all events. And if George paid the balance of the purchase money, $81.88, and obtained the title by fraud, the most that he could claim would be to be reimbursed the sum paid. Adams' Equity, 34.

To avoid the effect of this proof, the defendants set up the lapse of time in bar of the relief prayed, and it remains for us to see if this fraud can be covered up and relief denied in this case upon that ground. Where are we to begin to calculate the time that is to deny us relief in this Court? Not at the date of the bond, because that only gave to George Staup an equitable claim of title as against Beatty; and Peter Staup, by paying the purchase money under the arrangement with George, had a prior and superior equity, which a Court of Equity would have enforced in preference against George and Beatty both, if a bill had been filed for that purpose during the old man's life. Adams' Eq., secs. 149, 150, 151. Smith vs. Clay, 3 Brown, 639. Besides, lapse of time can only begin to run from the time that the right of Peter Staup to have the legal title became complete against James Beatty, who held it, and as the last payment was not made to Beatty till the 12th September 1836, time could not begin to run against Peter or his heirs till that time. Smith vs. Clay, 3 Brown, 639. And no proceeding could be instituted against George to obtain the conveyance of the legal title from him, till the title was in him, by the deed of the 8th September 1836, and the fraud being then completed, the defendants can only avail themselves of lapse of time from that date. Adams' Eq., sec. 176.

The evidence shows that George occupied the premises, not adversely, but as tenant of his father, from 1829 till his death in 1835, and the law would make him a tenant in common with his brothers and sisters, after the old man's death, until an ouster of his co-tenants was committed by him, or some act of adversary ownership was done with their knowledge, which would be equivalent to an ouster. Taylor's L. & Ten., 105, 706, 707. Blake vs. Foster, 8 Term Rep., 495. Dugan vs. Gittings, 3 Gill, 138, 160. Clymer vs. Dawkins, 3 Howard, 674, 689. Vanbibber's Lessee vs. Frazier, 17 Md. Rep., 451. No act of that kind is shown until the execution of the deed by Beatty, 8th September 1836, and no notice of that is brought home to the brothers and sisters, unless the recording of the deed is held to be notice. But our Registry Laws were not intended for cases of this kind, and cannot be construed to effect these parties, or to charge them with notice. Hill on Trus., 264, and note. Hovenden vs. Ld. Annesley, 2 Sch. & Lef., 624.

If I am right in this view, there is no evidence of such notice of adversary possession until the filing of the bill in the case of No. 299, 2nd May 1837, and the service of process under it, and in that case Crow and wife and Sarah Staup were the only complainants, and there is no evidence of notice to any of the other parties now claiming in this case. Willison vs. Watkins, 3 Peters, 43. Peyton vs. Stith, 5 Pet., 484. Bank of U. S. vs. Halstead, 10 Wheat., 54.

But, if the lapse of time is counted from the execution of the deed, then the bill in this case was filed nineteen years and seven months after that time, and nothing less than twenty years could justify the Court in refusing relief. Dugan vs. Gittings, 3 Gill, 138. Prevost vs. Gratz, 6 Wheat., 481. Boon vs. Chiles, 10 Peters, 177. Willison vs. Watkins, 3 Peters, 43. Miller vs. McIntyre, 6 Peters, 61. Piatt vs. Vattier, 9 Peters, 413. Also Coulson vs. Walton, 9 Peters, 62. Kane vs. Bloodgood, 7 Johns. Ch. Rep., 105. Smith vs. Clay, 3 Brown's Ch. Rep., 641. Bond vs. Hopkins, 1 Sch. & Lef., 429. Hovenden vs. Ld. Annesley, 2 Sch. & Lef., 608. Hill on Trustees, 264, 265, 266. 2 Story's Eq. Jur., secs. 1520 and 1521. Michaud vs. Girod, 4 Howard, 560, 561.

Thomas S. Alexander and Thomas J. McKaig, for the appellees:

1st. The lapse of time in this case being a bar to a recovery at law with the legal title, a Court of Equity will not relieve the complainants. The adverse possession in this case is a bar in equity as well as in law; 2 Story's Eq. Jur., sec. 1520, 1520 a.; 1521, 1521 a., and note 2; 1520, to note 3, on page 983 to 1520, and 1520 a., where all the authorities are cited; 5 th Edition of Story's Eq. Jur.; McKnight vs. Taylor, 1 Howard Sup. C. R., 161; Piatt vs. Vattier, 9 Peters S. C. 405; Kane vs. Bloodgood, 7 John. Ch. R., 90. And in this case the prima facie inference is that if Peter paid money in the purchase, it was by way of advancement for his son in whose name the title was taken. 2 Story's Eq. Jur., secs. 1202, 1203, (7 th Ed. )

2nd. The consideration expressed in the bond of conveyance, is stated to be paid by George Staup, and the sale made to him on his credit, and the deed made to him; and there is nothing in the bonds and notes for deferred payments, nor in the deed, to show that the purchase money was paid or purchase was made by Peter's money or for him; parol proof cannot be admitted after the death of George Staup to prove a resulting trust. 2 Atkins., 150, note 2; 2 Story's Eq. Jur., note 1 to sec. 1200; Hollida vs. Shoop, 3 Md. Rep., 474; Jackson vs. Speed, 3 Marshall, 57.

3rd. Admitting the parol evidence. The defendants say the testimony is not sufficient to establish the allegations of the bill to sustain this case. The allegations of the bill must be proved by " evidence of the clearest and most indisputable character," whereas, the only testimony offered by complainants of the fact that Peter Staup paid any money before or at the time of the purchase, is the testimony of Catharine Staup an old woman of eighty to eightysix years, childish, and in her dotage. All the other witnesses who speak to the fact of Peter Staup's furnishing money to George when he went to Baltimore to purchase, speak only of reputed conversations of George made after the purchase, and incapable of contradiction. And even these conversations are detailed by interested witnesses, who have placed themselves in such position that no witness so situated ought to expect to be believed.

4th. The defendants will contend, that if the complainants' witnesses were altogether credible their testimony is not such as would...