Milburn v. Michel

• Decision Date: 11 January 1921
• Docket Number: 43.
• Parties: MILBURN et ux. v. MICHEL.
• Court: Maryland Court of Appeals

112 A. 581

137 Md. 415

MILBURN et ux. v. MICHEL.

No. 43.

Court of Appeals of Maryland

January 11, 1921

Appeal from Circuit Court, Baltimore County; Frank I. Duncan, Judge.

"To be officially reported."

Suit by Frank G. Michel against John H. Milburn and wife. From decree for plaintiff, defendants appeal. Reversed, and bill dismissed, without prejudice to plaintiff at law.

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

Arthur L. Jackson, of Baltimore, and Elmer J. Cook, of Towson, for appellants.

Linwood L. Clark, of Baltimore, for appellee.

THOMAS J.

The bill of complaint in this case was filed for specific performance of an alleged contract of sale of a parcel of land, containing about five acres, and improvements, in Baltimore county, Md.

John H Milburn, one of the appellants, purchased the land in 1907 for $2,600, and paid for it out of savings from his salary as a draftsman of the Baltimore & Ohio Railroad Company, by whom he had been employed since 1884. He directed his attorney to prepare the deed for the property, which is dated May 27 1907, so as to protect his wife in case of his death, and the deed was made to him and Lizzie A. Milburn, his wife "as tenants by entireties," and duly recorded among the land records of Baltimore county. Some months later, for the purpose of erecting a dwelling on the land, he borrowed from the Real Estate Improvement Company of Baltimore City $2,000, secured by a mortgage of the property, executed by himself and his wife and duly recorded, and since then he and his wife and their family have occupied the property as their home. Two or three years before the date of the alleged contract of sale, in view of the condition of his wife's health, and prompted by a desire to secure a home or to live where she would have more diversion, he determined to sell the property, and to that end posted on the property a sign that it was for sale. His wife was not in sympathy with his plans, and was very much opposed to selling their home. She had never seen the deed for the property, and all that she knew about the title was Mr. Milburn's statement to her at the time he purchased the property that he had had it conveyed so that in case of his death she would be protected. He had not seen the deed or had it in his possession since the date of the mortgage in 1907, and, while he had directed it to be prepared so as to protect his wife in case of his death, he had never examined it. According to their positive testimony, both he and his wife believed that he had the right to dispose of the property in his lifetime, and, acting upon that belief, and with the view we have stated, he persisted in his purpose to sell it, notwithstanding her equally determined opposition to a sale.

On March 1, 1919, Frank G. Michel, the appellee, and his wife went to look at the appellants' property and were shown through the house by Mr. Milburn. The following day, Sunday, the appellee and his father went to see Mr. Milburn at his home, and, according to his statement, Mr. Milburn told him that he wanted to sell the property, and that if he wanted to talk business he could see him some time the next day. Mr. Milburn says that on Saturday evening when the appellee and his wife were at his house the appellee wanted to know if he would take $6,500 for the property, and that he told him he would take $7,500, and that when he came on Sunday with his father he tried to convince him, Mr. Milburn, that the property was not worth more than $6,500, but said he would give him $6,700; that he told the appellee that it was Sunday, and that he could see him the next day at his, Mr. Milburn's, office. They met on the following day, and after much haggling over the price they finally agreed on $6,800, and as the appellee was a traveling man and had to go away on a trip, they parted with the understanding that the appellee would come to Mr. Milburn's house that night and close the matter. The appellee, his wife, and their three children went to Mr. Milburn's house that night, and after they arrived Mr. Milburn and the appellee went upstairs, leaving Mrs. Milburn, her daughter, son-in-law, and grandchildren, and Mrs. Michel and her children downstairs. After Mr. Milburn and the appellee had been upstairs about a half hour, and after they had agreed upon the terms of settlement, Mr. Milburn went to the top of the stairway and called down to Mrs. Milburn to bring Mrs. Michel upstairs. She replied that she did not know why he wanted her to come upstairs; that she had nothing to do with the sale of the property; that he was selling it, but he insisted and she and Mrs. Michel went upstairs to where Mr. Milburn and the appellee were. Mr. Milburn prepared a memorandum, which "was interlined and written over very much," and as he had been suffering with his eyes and had been forbidden to use them at night he asked the appellee if he would copy it. The appellee was nervous, and said he could not write, he was shaking too much, and Mr. Milburn then asked Mrs. Milburn to make the copy. Mr. Milburn, according to his and Mrs. Milburn's testimony, asked her if she understood it, and she said that she did, and made two copies of it, but according to the testimony of the appellee Mr. Milburn asked Mrs. Milburn "if she was satisfied and thoroughly understood it," and she said "Yes," while the appellee's wife states that Mr. Milburn read the agreement over to Mrs. Milburn and asked her "if it was satisfactory to her," and that she said, "Why, yes; it is fine." After the two copies were made and had been signed by Mr. Milburn, the appellee, according to his testimony and the testimony of his wife, said to Mrs. Milburn, "Mrs. Milburn, you better sign that, too," but that Mr. Milburn spoke up and said, "That isn't necessary; it is my property." The appellee states that he did not know at the time that it was necessary for Mrs. Milburn to sign the agreement, and that as Mr. Milburn told him it was his property, and he had the greatest respect for him, he did not insist upon it. Both Mr. and Mrs. Milburn positively deny that anything was said about her signing the agreement, and she says that if she had been asked to sign it she would have positively refused to do so, as she was bitterly opposed to the sale of the property; that if she had thought that her signature was necessary, or that she could have stopped the sale, she would have done so that night, but that both she and Mr. Milburn thought at that time that he had the right to dispose of it without her consent, and that it was not until several weeks later, when Mr. Milburn took his copy of the agreement to his counsel in order that he might look after the insurance and the preparation of the mortgage to be given by the appellee, that he learned that her consent was necessary for the sale of the property, and informed her of it when he came home. She further testified that she remembered Mr. Milburn having to borrow some money, but that she had no recollection of having signed a mortgage in 1907, and that if she did she did it at his request and without reading, examining, or understanding it.

A careful examination of all the evidence leaves no doubt in the mind of the court that Mrs. Milburn was bitterly opposed to the sale of the property, and that she was entirely ignorant of her right to interpose any objection; that Mr. Milburn and the appellee, in making the contract of sale, acted upon the assumption and belief that Mr. Milburn had the right to dispose of the property without Mrs. Milburn's consent, and that she shared in that belief until she and her husband were advised otherwise by counsel several weeks later.

The contract in question is as follows:

"Baltimore County, Md., March 3, 1919.

Received from Mr. F. G. Michel one thousand dollars ($1,000) in part payment on my place on Windsor Mill Road, Woodlawn; a further payment of twenty-three hundred dollars is to be made when property is transferred, and balance of thirty-five hundred to be covered by a mortgage bearing an interest rate of 5 1/2 per cent. for a term of three years or less, or when the purchaser is able to pay. Interest to be paid semiannually. J. H. Milburn.

Frank G. Michel."

Counsel for the appellants notified counsel for the appellee that Mr Milburn was willing to execute a deed for the property in accordance with...