McGinnis v. Rogers

• Decision Date: 30 June 1971
• Docket Number: No. 465,465
• Citation: 262 Md. 710,279 A.2d 459
• Parties: Arthur J. McGINNIS et al. v. John J. ROGERS et al. Raphael G. URCLOLO et al. v. John J. ROGERS.
• Court: Maryland Court of Appeals

Page 710

262 Md. 710

279 A.2d 459

Arthur J. McGINNIS et al. v. John J. ROGERS et al.

Raphael G. URCLOLO et al. v. John J. ROGERS.

No. 465.

Court of Appeals of Maryland.

June 30, 1971.

Charles C. W. Atwater, Baltimore (David A. Carney, J. Edward Martin, Jr., Baltimore, on the brief), for Arthur J. McGinnis and others.

Richard T. Brice, IV, Annapolis, for Raphael G. Urciolo.

C. Edward Hartman, II, Annapolis (Stanley E. Hartman on the brief), Annapolis, for appellees.

Argued before HAMMOND, C. J., and BARNES, MCWILLIAMS, FINAN, SINGLEY and SMITH, JJ.

FINAN, Judge.

Upon the first argument of this case before this Court, the appellants were Arthur J. McGinnis and Charles Dudley, who, as complainants below and as the named contract purchaser and assignee had filed a bill for specific performance of a contract for the sale of land against John J. Rogers and Helen A. Rogers, his wife, and Thomas E. Chance. Also joined as defendants were Helen L. Clarke, Joseph Urciolo, John V. Arban, Pascal della Badia and Florence E. Urciolo whose relationship to the subject property will become apparent later in this opinion. Service was not obtained on the Rogerses. In that action, the court below having granted the motion of Chance for summary judgment, dismissed the bill of complaint. We reversed and remanded, being of the opinion that there existed a genuine dispute as to material facts which rendered summary judgment inappropriate. We directed that further proceedings be taken in the nature of additional testimony and additional finding of facts. McGinnis v. Chance, 247 Md. 393, 231 A.2d 63 (1967).

In order to provide an understanding of the roles played by the various parties, we shall endeavor to consolidate the facts of McGinnis v. Chance, supra, with those of the record of this case in its present posture on appeal. In the court below, Judge E. Mackall Childs, in a well reasoned opinion, performed an able task of unravelling an intricate web of evidence, for which we are duly grateful.

Mr. John J. Rogers, who at the most recent trial was 69 years of age, is a man whose formal education terminated after the sixth grade. In 1936, he and his wife, now deceased, purchased from Anne Arundel County a 48 acre tract (the subject property) which the County had acquired at a tax sale in 1932. However, it was not until 1940 that a deed was executed by the county treasurer. Rogers has receipted tax bills for the years 1941 through 1964. There is no question that he, although not living on the property, exercised many acts of dominion over it. On April 4, 1963, McGinnis, for the consideration of $200, obtained from the Rogerses a thirty day option to purchase the tract for $50,000. On May 3, 1963, McGinnis gave notice of his intent to exercise this option and shortly thereafter, with the Rogerses' permission, removed timber from the property which McGinnis sold for $1700; however, he did not settle as required and attempted to sell his option to one Hurd. Hurd obtained information concerning the questionable validity of the tax sale held in 1932 and returned the contract to McGinnis. When McGinnis mentioned the title problem to Mr Rogers, Rogers said 'Well, look, if you want to get the title cleared up you go ahead. I don't want to spend any money.' McGinnis did not pay any of the $1700 which he received from the timber to the Rogerses, and in a sense this may have set the flavor of his dealing with them.

Thereafter, McGinnis employed William Dixon, Esq., President of Monumental Title Company, a real estate attorney and developer, and a member of the Maryland Bar, who prepared a new contract for his client, McGinnis. That contract, entered into on September 23, 1963, between Rogers and McGinnis provided for a deposit of $200 (which was not paid) and a purchase price of $50,000 to be paid by a $10,000 down payment and a $40,000 four per cent purchase money mortgage back to Rogers. With regard to the defective title, the contract provided in pertinent part:

'Settlement to be on or before ninety (90) days from the date that the sellers are able to give such title as a title insurance company permitted to do business in the State of Maryland will approve and insure * * *.'

'Buyer will immediately proceed with due diligence to clear title to said property but in no event will the time of this contract exceed eighteen (18) months.'

Approximately one week later (October 1, 1963), McGinnis assigned his contract to Charles Dudley for a named consideration of $10,000, of which $6,000 was paid. Dixon then represented Dudley in all matters relating to the contract. Dixon caused a search of the title to be made by Garrett Larrimore, Esq., a member of the Maryland Bar, and also had a survey made by Mr. Edward Hall. This was in the early part of 1964. Also, about this time Hall notified Dixon that he had learned that Mr. Thomas E. Chance, a person known to deal in tax delinquent properties in Anne Arundel County, had evinced considerable interest in the property and was endeavoring to obtain quitclaim deeds from the heirs of William H. Queen, the individual who had been vested with title to the property prior to the tax sale in 1932. Dixon telephoned Chance and informed him of the existing contract between the Rogerses and McGinnis and of the assignment to Dudley, and advanced the opinion that the Rogerses' title was valid based on adverse possession. Dixon, however, did not communicate this development to the Rogerses, who were unaware of Chance's activities. Dixon was hopeful that the defect in the tax sale would be remedied by the passage of Chapter 182 of the Laws of Maryland of 1964, which provided that all tax sales prior to 1964 in Anne Arundel County could not be subject to further attack after June 1, 1966. However, this policy of watchful waiting exposed McGinnis, Dudley and Dixon to the risk that the McGinnis contract would expire on March 23, 1965, as the contract expressly provided for final settlement within eighteen months from its date of September 23, 1963, and if no extensions were granted by the Rogerses, the McGinnis contract would terminate. The record reveals that the McGinnis-Dudley-Dixon combination did little or nothing to prepare for the final settement date, and it was not until late in 1964 (the evidence not being clear as to the exact date) that Dixon sought the advice of John P. O'Ferrall, Esq., a title specialist in Baltimore. O'Ferrall observed that the Rogerses might well sustain a title based on adverse possession, having been in possession and control of the property under a deed from the county treasurer from 1940 to the date of his report; however, he also cited the curative effect of Chapter 182 of the Laws of 1964. Dixon, however, states that he was apprehensive about filing legal action lest the case be lost, thereby exposing Dudley and McGinnis to a possible suit for damages by the Rogerses.

Meanwhile, on June 23, 1964, Thomas Chance had obtained deeds from the Queen heirs in favor of his nominee, Helen L. Clarke, and on July 21, 1964, she, as agent for Chance, filed a bill of complaint (Equity No. 16,484) in the Circuit Court for Anne Arundel County asserting the invalidity of the 1932 tax sale and alleging that she was vested with title and should be entitled to the property upon payment of past due taxes. On October 19, 1964, the Circuit Court for Anne Arundel County entered a decree setting aside the tax sale. However, prior to the determination of that case there was yet another chapter being played out which affected the course which the instant case was to follow.

The equity suit filed by Helen Clarke against the Rogerses caught that couple completely unaware. Mr. Rogers states that it was the first time in his life that he had ever been sued. He did not know that anyone had designs on the title to his property and to compound his troubles his wife at this time was seriously ill with cancer. In desperation, he turned to his longstanding friend and spiritual advisor, Father Hugh O'Neil. Father O'Neil urged that Rogers retain Winson G. Gott, Jr., Esq., a member of the Maryland Bar from Anne Arundel County, to try to delay proceedings until Raphael Urciolo, Esq. (Urciolo) a member of the District of Columbia Bar, returned from Europe. Father O'Neil had a transcendent opinion of Urciolo, whom he had taught in college, and upon the latter's return to this country Father O'Neil immediately introduced him to Mr. Rogers. Rogers, with complete faith, placed his affairs totally in the hands of Urciolo.

We digress for a moment to point out that when this case was first heard by this Court we had misgivings as to whether the Clarke v. Rogers equity suit was of a true adversary nature. The evidence produced on remand clears this up completely and as Judge Childs unequivocally states: '(He) has no hesitancy in pronouncing it to be so. There was no evidence whatsoever that Chance's nominee, Helen L. Clarke nor Chance, nor C. Osborne Duvall, Esq., who was representing Clarke, had ever known Rogers before the suit was filed.'

At Urciolo's behest, the Rogerses entered into an agreement with Clarke to the effect that, regardless of the outcome of the equity case, the property would be titled in the name of Clarke and the Rogerses-one-half interest in each-and that this agreement was reached 'either prior to or simultaneously with' the taking of testimony in that case. Urciolo also explains that he advised settlement because he thought it might be difficult for the Rogerses to rest their title on adverse possession and that he had misgivings about the validity of the tax deed. At the close of the Clarke v. Rogers equity case, upon Urciolo's advice, the Rogerses executed an agreement dated September 17, 1964, whereby both they and Helen L. Clarke agreed to convey the subject tract to Chance and Joseph Urciolo (brother of Raphael) as 'joint tenants to be held by them for the benefit of the...