Lawson v. Mullinix

• Citation: 64 A. 938,104 Md. 156
• Parties: LAWSON v. MULLINIX.
• Decision Date: 01 November 1906
• Court: Court of Appeals of Maryland

64 A. 938

104 Md. 156

LAWSON v. MULLINIX.

Court of Appeals of Maryland

November 1, 1906

Appeal from Circuit Court, Montgomery County, in Equity; James B Henderson, Judge.

Bill by William A. Mullinix against Sarah W. Lawson. From a decree in favor of plaintiff, defendant appeals. Affirmed.

Argued before McSHERRY, C.J., and BRISCOE, BOYD, SCHMUCKER, JONES and BURKE, JJ.

Frank J. Hogan and D. W. Baker, for appellant.

Charles W. Prettyman and H. W. Talbott, for appellee.

BOYD J.

The appellee filed a bill for specific performance against the appellant and other heirs of Mareen Duvall. The bill was dismissed as to all the defendants except the appellant, and a decree was passed requiring her to convey to the appellee the property mentioned in the proceedings upon the payment by him of the sum of $3,815, less his costs. On the 22d day of September, 1900, Mareen Duvall entered into an agreement with the appellee to sell him his farm, known as "Duvall's Range," for the sum of $3,825, and the appellee paid him $10 thereon. No further payments were made prior to the death of Mr. Duvall, which occurred on July 2, 1903. On June 1, 1903, Mr. Duvall conveyed the farm to the appellant, his daughter; the consideration named in the deed being "the sum of five dollars and the love and affection I have for my daughter."

The appellant for her defenses relied on the five following grounds: (1) That she possessed an equitable right to the property superior to that of the appellee; (2) that she possessed an equity equal to that of the appellee, and, in addition thereto, had the legal title; (3) that the appellee's contract with Mareen Duvall was not such as entitled him to specific performance; (4) that this contract upon which the appellee relies is unilateral; and (5) that the appellee was guilty of laches. The theory of the appellant is that, if it be conceded that the agreement between the appellee and Mr. Duvall was a valid contract, she had a prior equity in the property by reason of a promise made by her father to give her the farm if she would live with him and keep house for him during his life. The testimony shows that she did so, and she relies on the maxim that "between equities priority of time will prevail." We will consider together the first two defenses relied on, as stated above.

First. The appellant was living in Frederick county in February 1897, when she moved to her father's place, in Montgomery county, in consideration, as she claims, that he would give her the farm. She lived with her father and kept house for him from that time until his death. It will be well to at once ascertain the circumstances under which she went there as disclosed by the record. She testified that she received two letters from her father, both of which she destroyed, and gave as a reason for not having them that she never kept letters. In the first her father wrote that he thought of selling the place, but if she would come there that he would not sell it; and she said of the second letter, "Then he wrote me word that still if I would come and live with him that he would not sell the place and that I could have it." She also said that he went twice to see her, and "he furthermore stated after I got there that I should have the place." Mrs. Darby, a sister of the appellant, testified that she had a conversation with her father, and "he requested me to write a letter to her for him, telling her to come down to keep house for him; that, if she didn't, he would have to sell the place. If she would come and keep house, he would leave her the place for a home for her." She said her daughter wrote the letter at her dictation, and she again spoke of a conversation with her father, in which "he said he wanted her to come and keep house for him, and that he would leave her the place when he was gone." The daughter testified that she wrote the letters, and said of the second that "grandpa told me to write to Aunt Sally, if she would come down and live with him, he wouldn't sell the place, and that she could have it at his death." That is all the testimony on the subject, excepting some statements made by Mr. Duvall after the agreement with the appellee was made, which we will refer to later. There would seem to be no doubt that the appellant would, under that evidence, have had no standing in a court of equity to compel her father to convey the property to her in his lifetime. While in her own testimony she did not in so many words say that her right to the property was to begin from the time of his death, that could be inferred, as she was not, according to her own statement, entitled to it during his life. But Mrs. Darby and her daughter removed any possible doubt on that subject, as will be seen by what we have quoted above. As Mr. Duvall had his whole life in which to perform, there could be no breach until after his death. 26 Am. & Eng. Ency. of Law, 93; Manning v. Pippen, 86 Ala. 357, 5 So. 572, 11 Am. St. Rep. 46; Flower v. Cruikshank, 77 Iowa, 110, 41 N.W. 587. If it be conceded that Mrs. Lawson would have been entitled to a decree for specific performance against the other heirs of her father, if she had not received the deed, is she in a position to deny the right of the appellee to such relief? Is her equity superior or equal to that of the appellee? There is nothing in the record to show that the appellee either had notice of the appellant's claim when he entered into the agreement with Mr. Duvall or that the appellant had such possession of the property as would put him on inquiry or cause him to suspect that she had any interest in the property. On the contrary, the evidence shows that after Mrs. Lawson went to live with her father he continued his control over the property, rented parts of it to tenants, collected his share of the rents, and did nothing that would suggest to the appellee that Mrs. Lawson or any one other than himself had any interest in the property, or that he made any promise to leave it to Mrs. Lawson after his death. In the latter part of May, 1903, Mr. Duvall sent for the appellee and clearly and fully recognized his agreement to sell the property to him. The object in sending for the appellee was to get him to surrender his claim to the farm so he could give it to Mrs. Lawson. There can be no doubt about that from the evidence in the record. Mrs. Lawson testified that upon that occasion "father told Mr. Mullinix that the place was for me; that I wanted it for a home. Mr. Mullinix didn't make him any answer to that, and he repeated it and Mr. Mullinix said that he bought the place. Father told him that he wanted me to have it. *** I offered him back his $10. He wouldn't say that he would accept of it." Miss Darby, a granddaughter of Mr. Duvall, testified that he sent for Mr. Mullinix, that "grandpa told him Aunt Sally was to have the place, and asked him what he had to say. *** He didn't say anything. *** My grandfather said; 'Mr. Mullinix, I sent for you to give you the $10. Sally is to have the place."' On cross-examination she said; "Grandpa said Mr. Mullinix had given him $10 as part of the agreement for buying the place. He was to give him $25, and only gave him $10." So, without quoting from the testimony offered by the appellee, which thoroughly sustains the fact that Mr. Duvall did on that occasion recognize his agreement, and wanted the appellee to accept the $10 and give him up his claim to the property, the evidence of the appellant shows that such was the case, and that she at least at that time knew that Mr. Mullinix had some kind of an interest in the property. But, notwithstanding that, a few days afterwards (June 1st) she accepted the deed from her father, which recited the consideration to be "the sum of five dollars and the love and affection I have for my daughter"; not a word in it suggesting that there was such consideration as she now relies on. Although the learned solicitors for the appellant concede that she cannot sustain her defense under that deed alone--the consideration being of a different kind--we find in the record in her examination in chief this testimony. "Q. You are still in possession of the place, I believe? A. Yes, sir. Q. And claim it under the deed that has been offered in evidence? A. Yes, sir."

The testimony we have thus far referred to (most of which was offered by the appellant) is such as should cause a court of equity to hesitate to grant the appellant any relief based on it, even if the appellee had not acquired any right to the property. In the first place, what the contract was between her and her father, if we concede there was one, is left in great doubt. In her answer she alleged that it was that the property was to be conveyed to her, while the evidence of the witnesses produced by her to prove the contents of the two letters which she claims to have received from her father was that he said "he would leave her the place for a home," that "he would leave her the place when he was gone," and that "she could have it at his death." They were speaking of the alleged contents of letters written seven or eight years before their testimony was given, and the appellant herself attached so little importance to them that she did not preserve them. It is manifest that those witnesses were, to a great extent placing their own interpretation on the meaning of the letters. While it may be conceded that the appellant could not be expected to be well versed in business principles, no one can read this record without reaching the conclusion that she was duly watchful of her own interests. But there can be no doubt that Mr. Duvall did not understand that he was under any legal obligations either to convey or to devise this farm to the appellant, for about three years after...