Machovec v. Shipley

• Citation: 189 A. 223,171 Md. 339
• Decision Date: 13 January 1937
• Docket Number: 59.
• Parties: MACHOVEC v. SHIPLEY ET UX.
• Court: Maryland Court of Appeals

189 A. 223

171 Md. 339

MACHOVEC v. SHIPLEY ET UX.

No. 59.

Court of Appeals of Maryland

January 13, 1937

Appeal from Superior Court of Baltimore City; Albert S. J. Owens Judge.

Suit by Elizabeth Machovec against Maurice G. Shipley and wife. From a judgment for defendants, plaintiff appeals.

Affirmed.

Argued before BOND, C.J., and OFFUTT, PARKE, MITCHELL, SHEHAN, and JOHNSON, JJ.

Joseph H. A. Rogan, Charles P. McEvoy, and J. Francis Ford, all of Baltimore, for appellant.

James K. Cullen, of Baltimore, for appellees.

SHEHAN Judge.

Elizabeth Machovec, appellant, brought a suit in ejectment in the superior court for Baltimore City against Maurice G. Shipley and Lena K. Shipley, his wife, appellees, to recover a parcel of real estate known as 2534 Washington Boulevard in Baltimore City.

The appellees were in possession of this property and refused to vacate or to deliver possession thereof. This appeal is from a judgment in favor of the appellees. The case was tried in the above court before the presiding judge and without a jury. The facts in the case present but little controversy and are rather simple.

John H Bein, Sr., father of Elizabeth Machovec, the appellant, had been the owner of the property in controversy and on or about March 18, 1935, conveyed the same to one Hirsch who, on the same day, conveyed the property to George H. Bein, Sr., for and during the term of his natural life, with the remainder after his death unto Elizabeth Machovec, her heirs and assigns in fee simple.

At the time these conveyances were made the appellant and her husband were engaged in the operation of a lunch room and confectionary business on the property in question, and about the middle of April, 1935, negotiations were started between them and Maurice G. Shipley and Lena K. Shipley, the appellees, for the sale of said business, fixtures, and stock in trade, which was ultimately consummated on the 23d day of April, 1935, at which time a bill of sale was executed by the appellant to the appellees for the consideration of $1,500 and included the said business and also "all the stock of goods, wares and merchandise located at and in said place of business and the fixtures therein * * * and the good will of said business."

At the time these negotiations were going on, it was clearly and definitely understood between the parties that the Shipleys would not purchase the business unless they could obtain a satisfactory lease of the premises at 2534 Washington Boulevard. The reason for this was obvious. The purchasers were buying the business and the good will therein, as well as the stock and fixtures. These intangible values were a part of the consideration for the purchase money agreed upon. The negotiations for the lease of the property were had, not only in the presence of Mr. Bein, the owner of the life interest in the property, but also in the presence of Elizabeth Machovec, and in order to obtain a lease that would certainly continue for a term of years it was necessary that the lease be binding upon the remainderman as well as the life tenant. It was agreed that the lease should be for the period of five years, with the right of renewal for three additional years. The Shipleys naturally were interested as to who held the title to the property. The deed placing the title in Mr. Bein for life and after his death in the appellant had been recorded; consequently the appellees had constructive notice of its contents and as to how the title was held, but had no actual notice as to this situation.

In order to consummate the lease of the real estate and the bill of sale for the personal property, the Shipleys, together with Joseph L. Carter, attorney for Mr. Bein and Mrs. Machovec, met at Mr. Bein's house and there the matter was discussed and arrangements were made for the purchase of the business, good will, fixtures, and stock and merchandise, and for a lease of the store premises at $40 per month for a period of five years, with the right or privilege of renewal for an additional term of three years. The conveyance of the real estate to Mr. Bein for life and to Mrs. Machovec in fee simple were of recent date, and Mrs. Machovec testified that this deed was signed at her house and she knew what it meant and knew that it was executed. This transaction occurred only one month and a few days prior to the lease, and prior to the bill of sale, so that Mrs. Machovec could not have been ignorant of the transaction, nor is it conceivable that she had forgotten the terms and conditions of the deed under which she took a beneficial interest or estate in the remainder. At that time the father was seventy-five years of age.

Mr Shipley apparently had some concern as to the condition of the title, and the important facts in this case are that Mr. Shipley testified that he asked Mr. Bein whether any one else's name was on the property and that Mrs. Machovec "spoke up and said 'No.' " Mrs. Shipley's testimony is that Mr. Bein said, when asked who owned the property, "Myself and no one else," and this was in the presence of Mrs. Machovec, to which statement she made no denial. The testimony of Mrs. Machovec, as to her part in the transaction, was not conclusive or definite enough to be convincing. The court below was satisfied that Mr. and Mrs. Shipley's version was correct, and this conclusion is supported by the admitted and undisputed facts and circumstances in the case, as well as by the silence of Mrs. Machovec, when her father stated that the property belonged to him and no one else. The appellees were not only buying a stock of...