Hungerford v. Hungerford

• Decision Date: 25 October 1960
• Docket Number: No. 5,5
• Citation: 164 A.2d 518,223 Md. 316
• Parties: William H. HUNGERFORD et ux. v. Susie E. HUNGERFORD.
• Court: Maryland Court of Appeals

Page 316

223 Md. 316

164 A.2d 518

William H. HUNGERFORD et ux. v. Susie E. HUNGERFORD.

No. 5.

Court of Appeals of Maryland.

Oct. 25, 1960.

Samuel J. DeBlasis, Suitland, for appellants.

Jerrold V. Powers, Upper Marlboro (Sasscer, Clagett & Powers, Upper Marlboro, on the brief), for appellee.

Before BRUNE, C. J., and HENDERSON, HAMMOND, PRESCOTT and HORNEY, JJ.

HORNEY, Judge.

This case comes to this Court on the pleadings. The appeal is from an order sustaining a demurrer to an amended bill or petition without leave to further amend.

The original bill was filed in February of 1959. The allegations of the amended bill are substantially as follows:

In January or February of 1922 Henry A. Hungerford III (Henry), who was a remainderman in common with a brother (Nathaniel Hungerford) of a tract of land in the Oxon Hill District of Prince Georges County, orally agreed to convey a part of the tract and a right of way to William A. Hungerford (William), another brother, but not a remainderman, in exchange for the latter's promise to perform certain labor or work for the life tenant, who was the father of all the brothers. William took actual possession of the part in question forthwith, constructed a dwelling on it and performed the work promised.

In 1944 Henry became the sole record owner of the whole tract, but the bill did not state from whom or what interests were then acquired. He died in 1957 leaving his wife (Susie E. Hungerford), the defendant herein, as his sole heir and next of kin, and the present sole record owner of the whole tract.

William and his wife (Viola Hungerford), the plaintiffs herein, made repeated demands on Henry during his lifetime and the defendant after his death to execute and deliver to the plaintiffs a deed for the property in question, but Henry repeatedly refused to convey and the defendant, since the death of her husband, has refused and still refuses to execute a conveyance of the property.

There were also allegations that the plaintiffs have been in continuous possession of the property since 1922, and that such possession had been 'actual, notorious, visible, undisturbed, hostile, peaceful and adverse.'

At the oral argument we were informed that Henry and his wife were not married until after the agreement to convey had been entered into, and were further informed that the life tenant had died in 1935.

The plaintiffs sought to have the title to the property 'quieted and confirmed' (apparently on the ground that a fee-simple title had been acquired by adverse possession) as well as injunctive relief restraining the defendant from asserting any claim thereto, and, in the alternative, also sought specific performance of the oral agreement to convey.

The defendant, among other reasons for demurring, asserted that the plaintiffs had been guilty of laches. It was on this ground that the demurrer was sustained. No motion to amend a second time was made, and the chancellor allowed none. Whether the ruling on the demurrer was correct involves two issues: (i) does the bill or petition, on its face, permit application of the doctrine of laches?; and (ii) does the plaintiffs' allegation of adverse possession entitle them to any relief?

(i)

Equity will, of course, as the plaintiffs contend, specifically enforce an oral contract to convey real property where the contract is affirmatively established by clear and convincing evidence and the promise has been fully performed by the party seeking to enforce the contract. Mannix v. Baumgardner, 1945, 184 Md. 600, 42 A.2d 124, and cases cited; 2 Williston, Contracts (rev.ed.), § 494; 4 Pomeroy, Equity Jurisprudence, (5th ed.), § 1409; Miller, Equity Procedure, § 700. But in this case, even if we assume as the demurrer admits that there was an oral contract to convey and that the services promised as consideration for the conveyance had been dutifully performed, it is apparent that the doctrine of laches was correctly applied to the claim for specific performance. Since both limitations and laches may be raised by demurrer, the real issue here is whether the defense of laches is apparent on the face of the bill. A defense based on matter which does not appear on the face of the bill must be made by answer, but a defense appearing on the face of the bill may be made either by demurrer or answer. Maryland Rule 371 a, b. This Court has repeatedly held that the defense of limitations or laches may be made in equity by demurrer where it can be seen that the bar applies and where the stated facts are not sufficient to relieve the bill or petition from the operation of limitations or laches. See, for instance, Belt v. Bowie, 1886, 65 Md. 350, 4 A. 295; Campbell v. Burnett, 1913, 120 Md. 214, 87 A. 894; McKenney v. McKenney, 1957, 214 Md. 397, 135 A.2d 423. So far as the claim for specific performance is concerned, there is nothing on the face of the bill to relieve it from the application of laches. The plaintiffs allege that the defendant's husband acquired the entire title in 1944, yet they failed to explain why they waited for fifteen years to bring this action for specific performance.

Only two requisites are necessary in order to invoke the doctrine of laches. There must have been some lapse of time during which the plaintiff failed to assert his rights and the lapse must have caused some prejudice to the defendant. Clarke v. Brunk, 1947, 189 Md. 353, 55 A.2d 919; Kaufman v. Plitt, 1948, 191 Md. 24, 59 A.2d 634; Rettaliata v. Sullivan, 1956, 208 Md. 617, 119 A.2d 420; Akin v. Evans, 1959, 221 Md. 125, 156 A.2d 219. That the death of a material witness to the transaction may constitute the necessary prejudice is well recognized. In Akin the delay was only eighteen months during which time a principal witness had died. Here, the filing of suit was delayed for a period of fifteen years and one of the contracting parties, the only person who could refute the plaintiffs' claim, died two years before specific performance was sought. Since the plaintiffs offered no explanation for the delay in the enforcement of their rights, the demurrer was sustainable on the ground of laches.

(ii)

On the question of adverse possession--since the bill is insufficient in its allegations with respect to this claim--it is impossible to determine whether there is merit in the plaintiffs' contention that their allegation of adverse possession was sufficient reason for overruling the demurrer. The bill alleged that adversary possession began to run in 1922, but that was not possible under the limited allegations of the bill, though it may have begun on some later date not disclosed by the pleadings.

The rule is that the statute of limitations does not run against a...