Meyers v. E. End Loan & Sav. Ass'n of Baltimore City

• Citation: 116 A. 453
• Decision Date: 10 January 1922
• Docket Number: No. 28.,28.
• Court: Court of Appeals of Maryland
• Parties: MEYERS v. EAST END LOAN & SAVINGS ASS'N OF BALTIMORE CITY et al.

116 A. 453

MEYERS

v. EAST END LOAN & SAVINGS ASS'N OF BALTIMORE CITY et al.

No. 28.

Court of Appeals of Maryland.

Jan. 10, 1922.

Appeal from Circuit Court No. 2 of Baltimore City; H. Arthur Stump, Judge. "To be officially reported."

Suit for partition by Marie E. Meyers against the East End Loan & Savings Association of Baltimore City and another. From decree dismissing in part, but retaining suit to determine plaintiff's interest in property involved, plaintiff appeals. Reversed and remanded.

Argued before BOYD, C. J., and BRISCOE, THOMAS, PATTISON, URNER STOCKBRIDGE, and OFFUTT, JJ.

James Fluegel, of Baltimore, for appellant.

Edward L. Ward, of Baltimore, for appellees.

THOMAS J. On the 6th of January, 1916, the East End Loan & Savings Association of Baltimore City and George W. Meyers and Marie E. Meyers, his wife, entered into a written agreement by which Meyers and his wife became the purchasers of the property, consisting of a house and lot, known as No. 1766 Homestead street, in Baltimore City, subject to an annual ground rent of $60.

The agreement recited that Meyers and his wife were members of the association and the holders of 16 "of its shares of the par value of" $100 per share, and that the association had agreed to sell said property to them for the sum of $1,600, payable "in weekly installments * * * accounting from Wednesday, the ——day of January," 1916, of $4 as dues and $1.92 as premium until the weekly dues paid amounted to $1,600. The agreement further provided for the weekly payment by Meyers and his wife to the association of $1.82 to be applied by the association to the payment of taxes and ground rent on the property. Meyers and his wife covenanted to make the weekly payments referred to and also agreed that in the event of their failure to do so for 30 days they should be "treated as tenants of said property," and would surrender possession thereof to the association upon five days' notice, and that "all moneys" paid by them should be considered "as a rental for" the property. The association covenanted to convey the property to Meyers and his wife "at any time upon payment of the balance due" under the agreement, provided the agreement had not been forfeited.

On the 18th of October, 1920, George W. Meyers obtained an absolute divorce from his wife, Marie E. Meyers, and on the 1st of November, 1920, she filed the original bill of complaint in this case against him and the East End Loan & Savings Association of Baltimore City for a sale of the property mentioned for the purpose of partition. The prayers of the amended bill of complaint are: (1) That a trustee De appointed to sell the property clear of all incumbrances; (2) that the proceeds of sale be paid to the plaintiff and to the defendants according to their respective interests therein; and (3) for general relief.

The association answered the bill admitting the execution of the agreement mentioned, which it filed as an exhibit, and that the property was not susceptible of partition, and expressing its willingness to abide by the decree of the court. The answer of George W. Meyers denied that the plaintiff had any interest in the property, and alleged that he agreed to purchase the property and made the first payment thereon of $105 out of money that he had in the Savings Bank of Baltimore, and has continued ever since to make the payments required by said agreement out of his savings; that he obtained an absolute divorce from the plaintiff on the ground of adultery, and that during the pendency of the divorce proceeding he paid the plaintiff alimony; that the court should not direct a sale of the property because the plaintiff had no interest therein, his right to purchase being "conditioned only" upon the faithful performance of said agreement, and that if he should fail to make the payments required by said agreement his right to purchase would end and he would become the tenant of the association.

Upon the evidence showing that the defendant George W. Meyers, prior to the execution of the agreement mentioned, paid to the association on account of the property $105, that between the date of said agreement and the date of the decree of the divorce he made the weekly payments required by the agreement amounting to $697.49, that he has continued to make said payments since the divorce, and that the plaintiff has never paid or offered to pay any part of the payments required by said agreement, the court below, on the 31st of March, 1921, passed a decree dismissing the bill "in so far as it seeks * * * a sale of said property for the purpose of partition, but retaining it for the purpose of determining what, if any, interest the plaintiff had in the money paid to the association prior to the date of the divorce. On the 3d day of May, 1921, the court passed a supplemental decree decreeing that the plaintiff was entitled to receive from the defendant George W. Meyers, one-half of the sum of $694.49, the amount paid by him under said agreement up to the date of the divorce, to wit, the sum of $347.25, and that the plaintiff and the defendant George W. Meyers should each pay one-half of the costs.

The theory upon which the decrees were passed, and the contention of the appellee in this case, is that it was incumbent upon the plaintiff after the decree of divorce to pay one-half of the weekly payments provided for in the agreement with the association, and that without having paid or offered to pay any part of the same she is not entitled to participate in the benefits of the payments made by George W. Meyers since the divorce, or to a decree for a sale of the property for the purpose of partition. The principle invoked by the appellee is stated in 7 R. C. L. p. 868, as follows:

"Where a joint tenant or tenant in common purchases an outstanding title, his cotenant must, within a reasonable time, elect to avail himself of the benefit of the title, and offer to contribute his due proportion of the expense of the purchase of it, if he desires to take advantage of his privilege of redeeming his interest. Unless he makes such election to participate within a reasonable time, and contributes, or offers to contribute, his ratio of the consideration actually paid, he will be deemed to have repudiated the transaction, and to have abandoned its benefits."

In the case of Darcey v. Bayne, 105 Md. 365, 66 Atl. 434, 10 L. R. A. (N. S.) 863, this court, after referring to 4 Kent's Com. 370, says:

"One tenant in common before partition cannot purchase in an outstanding title or incumbrance on the joint estate for his exclusive benefit and use it against his cotenants. The purchase inures in equity to their common benefit and the purchaser is entitled to contribution. The principle rests upon the privity of the parties, and the fidelity and good faith which the connection implies. But all the authorities agree that this is a privilege or option, and not an obligation, and one which must be exercised within a reasonable time by a cotenant, otherwise be deemed to have repudiated the transaction, and abandoned its benefits. In their bill the appellees based their claim not upon the privilege accompanied with an offer, but solely upon the legal right asserted at any time, and not with a tender to contribute."

The same principle was held to apply in Clark v. Clark, reported in 139 Md. 38, 114 Atl. 722, where the plaintiff sought to have certain bonds purchased by the defendant impressed with a trust in favor of the plaintiff, and where this court...