Campbell v. Welsh

• Decision Date: 09 May 1983
• Docket Number: No. 1271,1271
• Citation: Campbell v. Welsh, 460 A.2d 76, 54 Md.App. 614 (Md. App. 1983)
• Parties: Donald E. CAMPBELL v. Timothy E. WELSH, Personal Representative of the Estate of Mildred C. Campbell et al.
• Court: Court of Special Appeals of Maryland

Page 614

54 Md.App. 614

460 A.2d 76

Donald E. CAMPBELL v. Timothy E. WELSH, Personal Representative of the Estate of Mildred C. Campbell et al.

No. 1271.

Court of Special Appeals of Maryland.

May 9, 1983.

Thomas B. McCarty, Cantonville, for appellant.

Arnold G. Ziegler, Riverdale, for appellees, with whom were Richard Strom, Columbia, on brief for appellee, Timothy E. Welsh and James F. Maher, Columbia, on brief for appellee, Robert Campbell.

Argued before WILNER, GARRITY and ADKINS, JJ.

WILNER, Judge.

Mildred Campbell died on July 5, 1980, without a will. Surviving her as her heirs were four of her five children and several children of the one child who had predeceased her. At the time of her death, Mrs. Campbell was the record owner of a 2 1/2 acre tract of land in Howard County known as 9575 Gorman Road.

On November 14, 1980, appellant, one of Mrs. Campbell's surviving children, filed an equity action in the Circuit Court for Howard County, in which he alleged that "in the year of about 1965," he and his mother had entered into a "verbal agreement" under which she agreed to sell him a part of her property, as shown in a survey plat attached to the bill of complaint. ¹ The agreement, he averred, called for him to pay a purchase price of $2,500--$1,500 down and the $1,000 balance "from time to time as [his] financial condition ... permitted"--and to do certain renovation work on and about the property. He claimed that he made the down payment, did the renovation work, otherwise improved the property, and had been in exclusive possession of "the subdivided parcel" since the making of the agreement.

"In about the year of 1970," he continued, his mother, out of gratification, love, and affection, excused him from making any further payments and "promised him that she would make her Will in which she would confirm the sale of the subdivided parcel to [appellant] on the said terms and excuse him from payment of the balance of the purchase price thereof." Finally, he alleged that Mrs. Campbell did in fact leave such a Will, "but he has been unable to locate the same."

The bill of complaint named as respondents Mrs. Campbell's remaining heirs (the other children and grandchildren) and the personal representative of her estate. The relief sought was "[t]he appointment of a trustee to convey the subdivided parcel to [appellant] free and clear of any further liability to pay the balance of said purchase price" and "such other and general relief as to the Court may appear meet and proper in the premises."

On June 1, 1981, after the respondents had answered the bill of complaint, appellant filed "amendments by interlineation" through which he added an alternative claim for damages. In a new paragraph 15, he averred that:

"In the event [he] does not acquire ownership of said subdivided parcel in this proceeding, then he should be awarded damages against the Defendants in an amount equal to the fair and reasonable value of the improvements made by him in and to both said parcels to avoid the unjust enrichment on the part of the heirs of the estate...."

To secure that right, he asked for a lien on the two parcels "and appointment of a trustee to conduct a sale thereof to satisfy such lien."

Six weeks later--on July 20, 1981--appellant filed an amended bill of complaint in which, for the first time, he quantified his claim for the improvements made by him alleging their value to be $60,297, and added a further claim seeking reimbursement for certain utility bills paid by him. He did not specify the amount of these bills.

Ultimately, after some additional exchanges of pleadings, the case proceeded upon appellant's second amended bill of complaint, in which he continued to seek (1) specific performance of his oral agreement--that the personal representative or a trustee be directed to convey the parcel to him, and (2) in the alternative, a money judgment for the value of the improvements made by him (which was revised to $56,700) plus the utility payments (to which no value was yet assigned).

The case was resolved in two stages. On June 2, 1982, the court entered summary judgment against appellant on his claim for monetary damages and, on July 28, 1982, after trial, the court denied appellant's request for specific performance. This appeal challenges both of those rulings. ²

(1) Specific Performance

Appellant's principal claim, for specific performance, was rejected by reason of the Statute of Frauds. Md.Code Ann. Real Property art., § 5-104 provides:

"No action may be brought on any contract for the sale or disposition of land or of any interest in or concerning land unless the contract on which the action is brought, or some memorandum or note of it, is in writing and signed by the party to be charged or some other person lawfully authorized by him."

Appellant acknowledges that the contract upon which he sues was a verbal one. It was never reduced to writing and there is no evidence of any written memorandum or note of it signed by Mrs. Campbell. Undaunted by this seemingly fatal lapse, appellant argues that (1) he is entitled to have a constructive trust declared upon the land, and (2) by reason of his partial performance of the contract, the bar of the statute does not apply.

Appellant's theory of constructive trust appears to be based upon a passage from Berens v. Wortman, 250 Md. 343, 243 A.2d 507 (1968). At page 348, 243 A.2d 507, the Court stated that

"agreements to purchase land can be enforced in spite of the absence of a writing or memorandum sufficient to satisfy the Statute of Frauds where the circumstances require that equity impose a constructive trust, and these circumstances can exist when the parties stand in a confidential relationship."

We have no quarrel with that principle, as so stated. It clearly is the law in Maryland. The problem, for appellant, is that the record before us fails to demonstrate any circumstance calling for the imposition of such a trust. His assertion that he "was accustomed to be guided by his Mother's ... judgment and had the fullest confidence that she would act in his interest only," which forms the sole basis of his claim, falls woefully short of what is needed to cast aside the Statute of Frauds and impress upon the land a constructive trust. Compare O'Connor v. Estevez, 182 Md. 541, 35 A.2d 148 (1943) and Dove v. White, 211 Md. 228, 126 A.2d 835 (1956), where such trusts were imposed.

With respect to appellant's defense of part performance, the evidence showed that, at some point in 1965, appellant and his family moved onto the disputed part of his mother's property. At that time, according to him, his mother agreed to sell him that part for $2,500, of which $1,500 was to be paid then and the balance when and as he could afford it. There is no written evidence of the contract or the $1,500 payment; nor, aside from appellant, were there any witnesses to either event. No check, no receipt, no bank records--nothing, aside from some hearsay testimony from appellant's wife and daughter was offered to show the actual transfer of the $1,500.

After moving onto the property, appellant built a storage shed and a "shop," which he used in his construction business. He renovated an old dwelling house situated on that part of the property purportedly retained by the mother, which he used as a residence for himself and his family; he planted an "orchard" of some twenty-five trees, whose bounty he retained for himself; he built a driveway from Gorman Road to his new residence; and he did some repair or maintenance work in or about the house trailer in which his mother lived. Appellant remained on the property--both parts of it--without making any further payments to his mother, for the next fifteen to sixteen years.

Because of the strictures of the "Dead Man's Statute"--Md.Code Ann. Courts art., § 9-116--appellant was precluded from testifying about the alleged transaction, and so he offered to prove the contract itself through his wife and children.

Appellant's wife testified that "around '66, somewhere along in there"--when they first moved onto the property--her mother-in-law told her "that she'd sold Don [appellant] a piece of land" and that "he'd gave her fifteen hundred dollars on the piece of property." The wife was not certain if anyone else was present when this conversation occurred. In 1970, during a family gathering, there was another conversation with the mother. The wife's testimony was as follows:

"A. Well, she was telling Don that--well, she was telling me and my daughter, Don-Ann, she was talking about how nice the dwelling house looked where we was living, and she said then, at that time, that she was going to relieve him of the money that he still owed on the property, because it--I think the original thing, I think, was twenty-five hundred dollars. I'm not, you know, real certain that's what she said.

Q. Did she mention any amounts?

A. I think she said twenty-five hundred, she had gotten fifteen. As best as I can recall that's what it was."

In that same conversation, according to the wife, the mother said that "she was going to make a will, and she told Don, she said if, you know, if anything happened to him that she would leave the property to the oldest daughter [of appellant]." (Emphasis supplied.)

The daughter, Don-Ann, also testified about this 1970 conversation. She recalled her grandmother saying,

"That the thousand dollars that he owed he would not owe anymore, and that she would go ahead and put the property, the deed, in his name, and my father replied no, because of some problems I'm having with taxes, or something, I don't want the deed in my name, but in the event of my death I would want you to put the property in my daughter's name--Don-Ann's name, and she said she would do that and would confirm so in her will." (Emphasis supplied.)

The only other evidence purporting to corroborate the alleged contract (aside from...