Green v. Drummond

• Decision Date: 24 June 1869
• Parties: CORNELIUS GREEN v. JOANNA E. DRUMMOND and Others.
• Court: Maryland Court of Appeals

31 Md. 71

CORNELIUS GREEN v. JOANNA E. DRUMMOND and Others.

Court of Appeals of Maryland

June 24, 1869

Appeal from the Superior Court of Baltimore City, sitting in Equity.

The bill in this case filed by the appellant alleged that on June 15, 1865, Benjamin Silver, James Silver and Silas B. Silver executors of Susan Pannell, of Harford County, deceased, sold by public auction to Kimberly Brothers, for the sum of $16,000, certain real estate; and that the said Kimberly Brothers "agreed to relinquish their rights as purchasers under said sale in favor of Levin J. Drummond whereupon Cornelius Green and the said Drummond agreed to become jointly the purchasers of said property, each party to furnish one-half of the purchase-money and to hold the same in undivided moieties;" and that Drummond was not able to furnish immediately his portion of the cash payment required by the terms of sale, whereupon the executors, in consideration that $10,000 should be paid shortly thereafter and the balance in twelve months, with interest from the day of sale, agreed that the said Drummond should be substituted as the purchaser, and Kimberly Brothers, having consented thereto, the executors reported said Drummond as the purchaser; that of this $10,000, $6,000 was paid by Green and $4,000 by Drummond, and the whole amount of the cash payment was made to the executors on the 29th or 30th of June, 1865 by Green and Drummond; that the sale was duly ratified by the Orphans' Court of Harford County; that in point of fact Drummond was acting as the agent or trustee of Green to the extent of an undivided half part of said premises, although the sale was reported as made to Drummond; that the agreement between Green and Drummond was a verbal one; that Drummond died on the 10th of January, 1866, intestate, leaving a widow, Joanna E. Drummond, and five children; that Green, during the illness of Drummond, called to see him in order to obtain some acknowledgment of his interest in the property, but was refused admission to his presence by Mrs. Drummond; that Mrs. Drummond was the administratrix of Levin J. Drummond's estate, and she had attempted to collect rent from Green and from other persons occupying the premises in question.

The bill claimed that Green was a joint purchaser with Drummond, and was entitled to a deed from the Silvers for one-half of the property on payment of his proportion of the balance of the purchase-money, which he offered to do; it prayed for an injunction restraining Mrs. Drummond from collecting the rents, and for the appointment of a receiver, and for an injunction restraining the Silvers from making a deed to the heirs of Levin J. Drummond, and restraining said heirs from receiving it.

Mrs. Drummond and her adult children, Sarah and Alabama, answered the bill at length, denying entirely the alleged agreement between Drummond and Green, and stating that the purchase was made by Drummond, on the 15th of June, 1865, was exclusively for his own use and benefit, and that a written agreement of sale was made between him and the Silvers, under their respective hands and seals, setting forth particularly the terms and conditions of said sale, the original of which they filed as a part of their answer. They stated that they never heard during the lifetime of Drummond of any claim on the part of the complainant to the property or any interest therein, and that they believed the same was entirely untrue; that the said Drummond previously to making the purchase, frequently conferred with his wife concerning the same, and always represented to her that he was making the purchase exclusively for his own benefit; that during the last illness of Drummond, Green called twice at his house and saw Mrs. Drummond, but expressed no desire to see Mr. Drummond, and in response to an inquiry by the said Mrs. Drummond, he said he had no business to transact with him, and merely called to make friendly inquiry about his condition; that for many years previously to his death, Drummond rented the premises in question from the owners, and had sub-let a portion of them to Green, and both before and after the purchase, up to his death, had regarded Green as his tenant, and he had been so regarded since that event by the respondents. They further pleaded and relied on the Statute of Frauds.

Three of the children of Drummond were infants, and they answered in the usual way by guardian.

The answer of the Silvers stated that they sold the property in question on the 15th of June, 1865, to Kimberly Brothers; and a short time after the sale, and between that time and the 30th of June, they learned that Kimberly Brothers relinquished their right and interest under the sale in favor of Levin J. Drummond, and that at the request of the said Kimberlys and Drummond, agreed that Drummond should be substituted as purchaser, in their stead, and the terms of sale were varied, so that Drummond was to pay ten thousand dollars in cash, and give his note for six thousand dollars, payable in twelve months after the day of sale; that on or about the 30th of June, 1865, a written memorandum or agreement was made between the said Drummond and the Silvers, a duplicate original of which was filed with the answer, and which showed that the contract was made with Drummond alone, that the money was paid by him alone, and that the promissory note was executed by him alone.

They further stated that Drummond, on the 30th of June, 1865, paid the ten thousand dollars, with interest, from the day of sale, and also the proportion of rent and taxes settled as of the day of sale; that they reported Drummond to the Orphans' Court of Harford County as purchaser, and the sale was duly ratified.

They stated that their agreement was made with Drummond alone, and that the whole of the cash payment was made by him, and that they had no contract or understanding whatever with Green, in relation to said real estate, and that he never paid any money to them on account of said purchase, and that they never had any reason to believe that he had or claimed any interest in the purchase, until they were informed by his solicitor, a short time before the filing of the bill in this case.

Evidence was taken by both parties, under a commission, the effect of which is stated in the opinion of this court.

The court below (Martin, J.), passed a decree dismissing the bill with costs, and from this decree the present appeal was taken.

The cause was argued before BARTOL, C.J., NELSON, STEWART and MILLER, JJ.

Wm. Pinkney Whyte and Wm. Meade Addison, for the appellant:

This case is not covered by sec. 4 of the Statute of Frauds.

It is not alleged that Drummond sold Green anything; only that there was an agreement between Drummond and Green to buy jointly the premises from another party. "By a contract for the sale, purchase or other disposition of the land is intended a contract by which one of the parties parts with the land to the other." Browne on Statute of Frauds, 269, citing 9 B. Monroe, 369.

But if the Statute of Frauds does apply, then the appellant is entitled to relief under the 8th section. Dyer v. Dyer, 1 Lead. Cases in Eq. 168.

The Statute of Frauds does not extend to trusts created by operation of law. Brothers v. Porter, 6 B. Monroe, 106, 110, 111, 112.

Resulting trusts would have existed, without any provision to that effect, and they were only provided for from abundant caution. 6 B. Monroe, 106; Browne on Statute of Frauds, 84; Hoxie v. Carr, 1 Sumner, 189.

But if resulting trusts do not exist, except by force of the 8th section, then it is maintained that the term conveyance is not necessarily limited in its signification to a deed. It is simply a mode of vesting title--of passing title from one to another. In this case there was a sale made by executors under a will, which sale was duly reported to and confirmed by the Orphans' Court of Harford County. A title passed--or, in other words, there was, by such proceeding, a conveyance to Drummond--as complete and perfect as if a deed had been given. Cecil Bank v. Snively, 23 Md. 261; Act of 1865, ch. 51.

This court has decided, in a number of cases, that a judicial sale operated to pass title to the purchaser without a deed. Boring v. Lemmon, 5 H. & J. 223; Keys v. Goldsborough, 2 H. & J. 370-1; Barney v. Patterson, 6 H. & J. 204; Fenwick v. Floyd, 1 H. & G. 174; see also Remington v. Linthicum, 14 Pet. 84; Smith v. Arnold, 5 Mason, 414.

Wm. Pinkney Whyte and Wm. Meade Addison, for the appellant:

If the appellant be not entitled to the specific relief prayed for in the bill, he has substantial merits, which ought to be enforced in equity, and the cause should be remanded, under the Act of 1832, ch. 302. See authorities collected in Mayer's Digest, 180, 181.

When the specific execution of a parol agreement cannot be decreed in consequence of the Statute of Frauds, being relied on, the court will, if there be no remedy at law, of if it be uncertain and embarrassed, or under circumstances of special equity, decree compensation to the extent of the purchase-money paid. Nelson v. Hagerstown Bank, 27 Md. 76.

H. L. Emmons and Wm. Shepard Bryan, for the appellees:

The case made by the bill is within the Statute of Frauds. Lamas v. Bayly, 2 Vernon, 627; Henderson v. Hudson, 1 Munford, 510; Hollida v. Shoop, 4 Md. 465; Ledford v. Ferrell, 12 Iredell, 285.

The objection is taken in the answer. As the complainant's own pleading shows that he is not entitled to a decree, the bill ought to be dismissed. Ridgeway v. Toram, 2 Md. Ch. 303; Chambers v. Chalmers, 4 G. & J. 420; Berry v. Pierson, 1 Gill, 234-247; Small v. Owings, I Md. Ch. 363.

A resulting trust cannot arise by contract, but only by operation of law. B...