Kennedy v. McCann
| Decision Date | 23 June 1905 |
| Citation | 61 A. 625,101 Md. 643 |
| Parties | KENNEDY et al. v. McCANN et al. |
| Court | Maryland Court of Appeals |
Appeal from Circuit Court No. 2 of Baltimore City; George M. Sharp Judge.
Suit by Annie Kennedy McCann and others against John M. Kennedy and another. From a decree for plaintiffs, defendants appeal. Reversed.
Argued before McSHERRY, C.J., and FOWLER, BRISCOE, BOYD, PEARCE PAGE, SCHMUCKER, and JONES, JJ.
S.S Field, for appellants.
William M. Maloy, for appellees.
This is an appeal from the circuit court No. 2 of Baltimore City vacating a lease of an improved lot of ground in that city and declaring the fee-simple title thereto to be affected with a resulting trust in favor of the five children of the late Mrs. Ella J. Speights, and directing it to be conveyed to them. It appears from the record that Mrs. Speights was a widow who had been twice married. By her first husband Daniel Kennedy, she had a son, John M., and a daughter, Annie, who married Joseph McCann. By her second husband, John Thomas Speights, she had a son, James L., and two daughters--Jennie, who married Audley Warren, and Dora, who married Edward B. Baulsir. The house and lot in question were purchased on July 15, 1901, with $5,000 supplied by Mrs. Speights, and were conveyed in fee, by the vendor, to her son James L. Speights, who, with his wife, at once made a lease thereof for 99 years, renewable forever, at a nominal rent of one cent per annum, to her other son, John M. Kennedy, thus vesting in him the substantial ownership of the property. The two daughters of Mrs. Speights, who are the appellees in this court, filed the bill in the circuit court against the other daughter and the two brothers, James L. Speights being also sued as administrator of the mother's estate, to enforce an alleged agreement by their brother John M. Kennedy to execute a mortgage on the property to secure the repayment of the $5,000 purchase money therefor supplied by the mother in her lifetime.
The original bill, filed on October 15, 1903, alleged that Mrs. Speights, during her lifetime, having $5,000 which she desired to invest in a house on the northeast corner of Broadway and Pratt street, entered into an arrangement with her two sons whereby the house could be transferred into their names, and the $5,000 purchase money which she supplied be secured to her by a mortgage on the property. It then further averred that the money was supplied by her in pursuance of the arrangement so made, and "in accordance with a distinct agreement with John M. Kennedy that the said five thousand dollars ($5,000) should be secured by a mortgage on said property"; but that he, after acquiring the property, refused to execute the mortgage, although it was drawn up and presented to him for execution. The subsequent death intestate of Mrs. Speights, and the issue of letters of administration on her personal estate to James L. Speights, were also alleged. The prayer of the bill was for a decree requiring Kennedy to perform his alleged agreement by executing a mortgage on the property for $5,000 to the administrator of Mrs. Speights' estate, for the further administration of her estate in equity in circuit court No. 2, and for general relief.
Two of the defendants answered the bill. The answer of John M. Kennedy, the principal defendant to this bill, is stated by the record to have been lost, but in his answer to the amended bill he categorically denied that his mother ever lent him $5,000, or that he ever agreed to give her a mortgage on the property. He admits that she gave him the $5,000 with which he purchased the property, but avers and insists that she gave it to him as an absolute gift in pursuance of oft-repeated declarations to him and others of her purpose to give him this money with which to buy himself a home, because he had stuck by her, and done his duty to her as a son, and had resided with her, and assisted her to make her money. He further avers that in her early life, when she had been deserted by her second husband, he had worked, and helped her to support the family, and that he had for many years lived with her in the management of her affairs.
The answer of James L. Speights in his own right and as administrator also denies that there was ever any agreement or arrangement between John M. Kennedy and his mother that the former should give a mortgage to the latter for $5,000, or any other amount, on the property in question, and explains that the property was conveyed to him and by him leased to John M. Kennedy in order that John might be able to convey it, if he desired so to do, without the necessity of having his wife join in the conveyance; and that it was well known to his mother and sisters that the property belonged absolutely to John, and that his mother had often so stated. This answer further denies the necessity or propriety of an administration of the estate in a court of equity, and declares that the defendant has already partially administered it in the orphans' court, and is deterred from completing the administration only by the pendency of this suit.
The third defendant, Jennie Warren, did not answer the bill, and a decree pro confesso was entered against her.
After much testimony had been taken, the plaintiffs, with leave of the court, without adding to or in any manner modifying the allegations of fact contained in the bill, so amended their prayer for relief as to ask in the alternative for, first, a decree directing Kennedy to execute the mortgage for $5,000 as already stated; or, second, that the property be declared to be held by him subject to a resulting trust in favor of Mrs. Speights, her heirs, personal representatives, or assigns; or, third, that the $5,000 "be declared an advancement or loan to the said John M. Kennedy." Kennedy, in his answer, filed by leave of court to the amended bill, insisted that his mother had given him the $5,000 not as an advancement, or under circumstances from which a resulting trust could be implied, but as an absolute gift, and denied the existence of any agreement to give her a mortgage on it. The answer also set up certain objections, which it insisted made the bill demurrable; but we do not deem it necessary to pass upon them, as we will dispose of the case on its merits as disclosed by the evidence. After the taking of the testimony in support of Kennedy's answer to the amended bill, the case came on to be heard, and the learned judge of the circuit court passed the decree appealed from. This decree, after reciting the finding of the fact that the property had been purchased with the money of Mrs. Speights for her benefit, and that her sons had collusively procured the deed and lease to be made to them, respectively, declares that the lease from James L. Speights and wife to John M. Kennedy is inoperative and void, and that James L. Speights holds the title in fee to the property affected, with a resulting trust in favor of the five children of Mrs. Speights, and directs him to convey it to them as tenants in common. The testimony in the case, although ample, is much of it of a low order. The witnesses as to the vital facts so contradict each other that it is...
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