Fett v. Sligo Hills Development Corp.

• Decision Date: 10 July 1961
• Docket Number: No. 340,340
• Citation: 172 A.2d 511,226 Md. 190
• Parties: Rose E. FETT et al. v. SLIGO HILLS DEVELOPMENT CORP.
• Court: Maryland Court of Appeals

Page 190

226 Md. 190

172 A.2d 511

Rose E. FETT et al. v. SLIGO HILLS DEVELOPMENT CORP.

No. 340.

Court of Appeals of Maryland.

July 10, 1961.

Elizabeth H. Allen, Silver Spring, and Philip J. Lesser, Washington, D. C., for appellants.

David E. Betts, Rockville, William Wells Beckett, Washington, D. C., (Betts, Clogg & Murdock, Rockville, T. Howard Duckett, Robert C. Christie, Duckett, Orem & Christie, Washington, D. C., on the brief), for appellee.

Before HENDERSON, HAMMOND, PRESCOTT, HORNEY and MARBURY, JJ.

HAMMOND, Judge.

In an ejectment suit tried by the court without a jury, Judge Shure awarded the plaintiff, Sligo Hills Development Corp., the owner of a dwelling house in Montgomery County, a judgment for immediate possession of the house and damages of $9,450 (its rental value of $175 a month for fifty-four months) against its occupants, Mrs. Fett, a widow, and her four minor children. Their appeal from the judgment against them followed.

The pleas of the Fetts were not guilty and a plea on equitable grounds, alleging they were entitled to possession as 'the heirs at law' of Herbert Fett, the late husband and father, 'who obtained equitable title and the right to possession pursuant to a contract between the plaintiff and the said Herbert Fett, wherein the plaintiff agreed to convey legal title to the said Herbert Fett.' Judge Shure found that there had never been an enforceable contract.

It appears from the testimony produced on behalf of the plaintiff--the defendants produced none-that Herbert Fett was an accountant in New York, employed by Sligo and several other affiliated corporations, that he came to Washington to work full time for these corporations, that the house in question was built by Sligo, which was a developer and builder of houses, so that Fett and his family would have a place to live, and that the family moved in on June 1, 1956, with Sligo's permission.

There was further proof that Sligo orally agreed to sell Fett the house for its cost, approximately $40,000, and that, when he sold his house in New York, he was to pay $25,000 in cash and give 'a deferred purchase money mortgage for the balance of the purchase price.' Fett died in February 1957. His widow and children have continued to live in the house since his death. Nothing was done toward consummating the understanding as to the sale and purchase of the house either before or after Fett's death. The Fetts have lived in the house rent-free since they moved in and have never paid any part of the taxes, insurance, maintenance or other expenses of the property. Nor have they ever, before or after demand to vacate or suit to enforce that demand, tendered compliance with their obligations under the understanding, or suggested their ability and willingness to do so. In May 1957, several months after Fett's death, Sligo's representative called on Mrs. Fett and asked her whether she wanted to buy the house. Her reply was that she could not afford the house and would make arrangements to move to New York after school closed. In September or October, Sligo's representative went again to see her and requested her to move, and was told that she had no place to go and intended to stay on.

After Sligo had attempted without result to obtain possession in a landlord and tenant action in the Peoples' Court of Montgomery County, the ejectment suit was filed in May 1958.

Appellants argue that the admissions in the testimony of Sligo's officers as to the existence of the contract they rely on constitute a sufficient memorandum to satisfy the Statute of Frauds and, alternatively, that an oral contract to convey real property will be enforced specifically where there has been part performance by the vendee in reliance on the contract, as they claim there was here, and, finally, that the terms of the contract were definite enough to have permitted Fett to have obtained specific performance and that they, as his heirs, are entitled to the same equitable relief.

In our view of the case the Fetts, assuming them to be right in either of their first two contentions, cannot win because, to prevail on equitable grounds in an ejectment action, a defendant must show such facts as would entitle him to relief in a court of equity against the judgment, if recovered; 1 Poe, Pleading, Tiffany Ed., Sec. 275A, and Williams v. Peters, 72 Md. 584, 20 A. 175 (interpreting what was, before its repeal by Ch. 399 of the Acts of 1957, Sec. 91 of Art. 75 of the Code of 1951, which has been replaced by Md.Rule 342 d 1); and the Fetts have not met that burden. Even if the understanding between Sligo and Fett as to the house had been reduced to writing, its terms were so indefinite that a court of equity would not have granted Fett specific enforcement against Sligo. If that remedy would not have been available to Fett as a sword against Sligo, as we hold, a claim to it cannot serve as a shield for Fett's heirs, the appellants in Sligo's ejectment suit against them. Indeed, the widow and children concede that to be of avail to them the contract they claim existed must have been and must now be enforceable specifically.

The understanding between Sligo and Fett was that the purchase price was to be the cost of the house, approximately $40,000, of which $25,000 was to be paid in cash and the balance by a purchase money mortgage. The duration of the mortgage and the interest rate were not specified and are among the glaring uncertainties of the understanding.

It was held in Triebert v. Burgess, 11 Md. 452, 463, and Caplan v. Buckner, 123 Md. 590, 602, 91 A. 481, that a contract to sell real estate was not too indefinite to be specifically enforced solely because no time was specified for the payment of a mortgage. On the other hand, it has been held consistently that the term of a ground rent must be specified if the contract is not to be too indefinite, Golbe Home Improvement Co. v. Brothers, 204 Md. 73, 76, 102 A.2d 748, and cases therein cited, and in Smith v. Biddle, 188 Md. 315, 319, 52 A.2d 473, it was expressly decided that a contract of sale in which part of the purchase price was to be represented by a mortgage, the duration and interest rate of which were not specified, was too uncertain to be specifically enforced. There was a similar holding as to a note of uncertain duration and interest rate in Naughton v. Clubb, 188 Md. 374, 378, 52 A.2d 739, and as to a mortgage to be placed in such a manner as to 'allow the builder to obtain a construction mortgage' in Standard American Homes v. Pasadena Bldg. Co., 218, Md. 619, 626, 147 A.2d 729, 731. See also Canton Co. v. Northern C. Ry., 21 Md. 383; Gelston v. Sigmund, 27 Md. 334, 343; Tarses v. Miller Fruit & Produce Co., 155 Md. 448, 453, 142 A. 522; and cf. Quillen v. Kelley, 216 Md. 396, 407, 140 A.2d 517; and Baker v. Dawson, 216 Md. 478, 488, 141 A.2d 157.

If the contract had been specifically enforceable as of the time of Fett's death, the authorities indicate that there would have been an equitable conversion and, since he died intestate, his ownership of the land...